Citation Nr: 1318660 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 98-08 526 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from June 1984 to August 1992. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a September 1997 rating decision, by the San Juan, Puerto Rico, Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for a back disorder. He perfected a timely appeal to that decision. In an October 2005 decision, the Board denied the Veteran's claim of service connection for a back disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By a memorandum decision entered in April 2008, the Court vacated the Board's decision on that issue and remanded for readjudication consistent with the memorandum decision. In February 2010, the Board remanded the case for evidentiary development. Following the requested development, supplemental statements of the case (SSOC) were issued in June 2011 and December 2011. In May 2012, the Board again remanded the case for still further development. An SSOC was issued in October 2012. The Board finds that there has been substantial compliance with its remand directives. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran presented testimony at an RO hearing in October 1998. A transcript of the hearing is associated with the veteran's claims folder. However, the Board notes that the hearing was limited to the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). The issue has been granted and is no longer before the Board. FINDING OF FACT A chronic back disorder was not manifested in service; arthritis of the lumbar spine was not manifested in the first post service year; and a current back disorder is not attributable to service. CONCLUSION OF LAW A chronic back disorder was not incurred in or aggravated during service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or SSOC. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). While the notice provided to the Veteran in May 2002 was not given prior to the RO adjudication of the claim, the notice as provided by the RO prior to the transfer and recertification of the case to the Board complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Additional letters were issued in April 2010 and December 2010. Those letters informed the Veteran of what evidence was required to substantiate the claim, and of her and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. Therefore, the Board is satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. Neither the Veteran nor his representative has contended that any evidence relative to the issue decided herein is absent from the record. The Veteran has been afforded VA examinations on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations afforded to the Veteran are adequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The examinations were conducted by a medical professional who reviewed the medical records, solicited history from the Veteran, examined the Veteran, and provided opinions pertinent to the issue decided herein. Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The Veteran entered active duty in June 1984; an enlistment examination in February 1984 was negative for any complaints or findings of a back disorder. The service treatment records (STRs) indicate that the Veteran was attacked by a guard dog in April 1991; as a result, he received multiple bite wounds, including on his back. A treatment note, dated in February 1992, indicates that the Veteran as seen for complaints of right hip pain with stiffness; no history of trauma was noted. The assessment was muscle strain. The separation examination in August 1992 did not list any complaints or findings of a back disorder. The Veteran's claim for service connection for a back disorder (VA Form 21-526) was received in March 1997. In conjunction with his claim, the Veteran was afforded a VA examination in April 1997. The Veteran indicated that he sustained a back injury when he was attacked by a military dog in 1991. He referred no back pain on the day of the examination. On examination, there were no postural abnormalities of the back. There were no fixed abnormalities of the back. There was no evidence of muscle spasm or tenderness to palpation on lumbosacral paravertebral muscles. He had a full and complete range of motion of the lumbar spine. The pertinent diagnosis was posterior subluxation of the coccyx by x-rays taken on April 9, 1997. Received in October 1998 were VA progress notes dated from March 1998 to April 1998. A March 1998 medical certificate indicates that the Veteran was seen for evaluation of complaints of low back pain since 5 years ago; he stated that he had felt an increased intensity of the back pain. The assessment was low back pain. Received in April 2002 were VA progress notes dated from November 1992 to January 2002. Among these records is a medical certificate dated in November 1992, indicating that the Veteran was bitten by a military dog while on active duty; he was being seen for a follow up evaluation of his condition. It was noted that the Veteran didn't have any symptoms at this moment, but he was told that in the future he could develop arthritis or degenerative joint disease secondary to the attack. The diagnostic impression was status post dog bite while active in the Navy. Received in January 2003 were VA progress notes dated from December 1998 to August 2002. An x-ray study of the lumbar spine, performed in December 1998, reflects an assessment of muscle spasm. On the occasion of a VA examination in March 2003, it was noted that the Veteran was attacked by a guard dog; he was bitten on his back, both upper extremities and lower extremities. The examiner noted that there was evidence of dog bite on the right mid back with 4 teeth marks on April 15, 1991; he had local care on April 16, 1991, April 17, 1991, and April 19, 1991. The examiner noted that the Veteran did not complain of low back pain during the follow up visits; and, the remainder of the STRs is silent with respect to a back disorder. The examiner noted that the enlistment examination did not report any recurrent back pain; the Veteran also denied having recurrent back pain on the occasion of the separation examination in August 1992. The examiner further noted that there is no evidence of treatment of a low back condition in the claims file up to several years after his discharge. It was noted that the correct diagnosis at the time of the examination was L5-S1 herniated disc and degenerative joint disease by MRI on March 17, 2003. The examiner opined that it is not at least as likely as not that the current low back disorder had its onset in service. Of record is the report of a copy of a disability determination and transmittal form, dated in February 2000, showing that the Veteran was found to be disabled due to a psychiatric disorder. Also submitted were medical records considered by SSA, dated from March 1998 to July 2003, reflecting treatment primarily for a psychiatric disorder. Received in May 2010 were VA progress notes dated from September 2006 to December 2006. These records reflect a history of degenerative disc disease. A nursing note dated in December 2006 indicates that the Veteran was seen for evaluation of low back pain. It was noted that the Veteran came to the emergency room due to low back pain since one week ago. The Veteran was afforded a VA examination in September 2011. At that time, the Veteran indicated that he injured his lower back during a dog attack when he worked with a K-9 unit in the Navy in 1991; he reported falling backwards when the dog attacked him and he has had back problems since then. The Veteran indicated that he complained of back pain while he was in the service and was treated with anti-inflammatory medicines. He stated that his back pain improved. He stated, after separation, he worked as a merchant marine and noted that you always have injuries doing that type of work. The Veteran complained of pain and stiffness in the lower back; he reported radiation of the pain into the anterior thighs. Following an evaluation of the spine, the examiner reported a diagnosis of bulging discs L5-S1, and lumbar degenerative joint disease, manifested by low back pain. The examiner opined that the bulging discs L5-S1, and lumbar DJD L3-L4 to L5-S1 are not likely due to military service. The examiner noted that the STRs show that the Veteran was attacked by a guard dog and had multiple dog bites, including on his back; there is evidence of local care but no complaints of a back injury or trauma to his back on fall as described by the Veteran. The examiner noted on progress note on February 4, 1992 which reflects complaint of right hip pain without history of trauma. No further progress note was seen evidencing any other evaluations of the back while the Veteran was still in the military, so evidently the back did not worsen or fail to improve. Moreover, the separation report and report of medical examination 7 months later have no complaints of a back condition and the medical examination did not reveal any back condition. Apparently, the muscle strain resolved completely. The examiner further noted that there is no evidence of a lower back condition in the Veteran in the first 5 years after his release from military service. The Veteran was afforded another VA examination in October 2012. In October 2012, the Veteran's claims folder was referred to the examiner who conducted the September 2011 examination in order to provide an addendum in which he/she acknowledges a July 1992 dental questionnaire in which the Veteran reported painful joints, and the Veteran reported that he had had intermittent back pain ever since the inservice injury. Following a review of the claims folder, the examiner stated that the Veteran's back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the bulging discs L5-S1, Lumbar DJD L3-L4 to L5-S1 were not likely due to military service. He noted that the progress notes dating from April 15, 1991 to April 19, 1991 show that the Veteran was attacked by a guard dog and suffered multiple dog bites, including on his back, and there was evidence of local care but no complaints of a back injury or trauma to his back on fall. The examiner observes that there is one progress note of February 4, 1992 in which his chief complaint was right hip pain without history of trauma. On physical examination, he was found to have point tenderness with mild spasms of the right spinas erector muscles. There was no further treatment for back pain while in the military service or in the first 5 years after separation from military service. At separation, the Veteran indicated "I am in good health, taking no medication." He further noted that the dental health questionnaire of July 31, 1992 was reviewed and while the Veteran did mark yes to question of whether he had joint pain with no specification of which joint. The examiner stated that there was no mechanism of injury identified in the Veteran's service treatment records to explain the possibility of him having bulging disks or lumbar DJD during his military service or caused by his military service. He noted that there was no complaint of back pain upon separation from the military and upon his release from the military; he stated that he was not using any medications as seen on the separation report of the medical history. III. Legal Analysis. Service connection may be awarded for a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1131 (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). In addition, the law provides that, where a Veteran served ninety days or more of active military service and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board may weigh that testimony and make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). After careful review of the evidentiary record, the Board finds that service connection is not warranted for a back disorder. Significantly, while the service treatment records show that the Veteran sustained dog bite wounds, including on his back in April 1991, the records do not reflect any complaints or findings of an underlying back disorder. The remainder of the STRs is completely silent with respect to any complaints or diagnosis of a chronic back disorder. In fact, at the time of his separation examination in August 1992, clinical evaluation of the spine was normal. A post service medical certificate in November 1992 noted that the Veteran didn't have any symptoms at this moment. The first clinical documentation of the onset of a chronic low back disorder is dated in April 1997, several years following Veteran's discharge from service. The Court has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See generally Maxson v. Gober, 230 F.3d 1330(Fed. Cir. 2000). The medical record also does not present any evidence of arthritis of the lumbar spine being present within the first post-service year, and hence service connection may not be afforded for a low back disorder presumptively on that basis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, there is no persuasive evidence indicating that there is a relationship between the Veteran's current back disorder and military service. Following the VA examination in September 2011, the VA examiner reviewed the medical records, examined the Veteran, and offered his opinion that the bulging discs L5-S1, and lumbar DJD L3-L4 to L5-S1 are not likely due to military service. The examiner noted that the STRs show that the Veteran was attacked by a guard dog and had multiple dog bites, including on his back; there is evidence of local care but no complaints of a back injury or trauma to his back on fall as described by the Veteran. The examiner further noted that there is no evidence of a lower back condition in the Veteran in the first 5 years after his release from military service. This opinion was confirmed by another VA examiner in October 2012 who, following examination of the Veteran and review of the claims folder, opined that the Veteran's back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the bulging discs L5-S1, Lumbar DJD L3-L4 to L5-S1 were not likely due to military service. The examiner stated that there was no mechanism of injury identified in the Veteran's service treatment records to explain the possibility of him having bulging disks or lumbar DJD during his military service or caused by his military service. The Veteran has not submitted any competent medical evidence of a nexus to service. The Board finds that the medical evidence is more probative than the lay statements. Therefore, the evidence does not support service connection for a back disorder. To the extent that the Veteran asserts that his low back disorder is attributable to service, the Board again acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's back disorder and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Here, while the Veteran is competent to describe his in-service symptoms, as well as his current symptoms, the Board accords his statements regarding the etiology of his disability little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the Veteran has offered only conclusory statements regarding the relationship between service and his current back disorder. In contrast, the October 2012 VA examiner provided a detailed rationale in support of his opinion that the current back disorder was not related to service, and cited to the relevant evidence. For this reason and the reasons discussed above, the October 2012 VA examiner's opinion is the most probative evidence of record. See supra Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Absent competent evidence of a causal nexus between a current disability of the back and service, the Veteran is not entitled to service connection. Given the absence of complaint or treatment until years after service, and the absence of any credible evidence showing continuity of symptomatology since service, the Board finds that the evidence weighs against the Veteran's claim. The Veteran's current low back disorder was not incurred in or aggravated by service, and there is no evidence of a nexus between the post-service diagnoses and active service. As such, the Veteran's claim for service connection for a back disorder must be denied. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of service connection for a back disorder and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for a back disorder is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs