Citation Nr: 1319325 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 11-21 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for neck disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The appeal has been advanced on the Board's docket. 38 C.F.R. § 20.900(c). The Veteran served on active duty from March 1957 to September 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2012, the Board remanded the matters for additional development. The case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. Arthritis of the back was not manifest during service or within one year of separation from service and the most probative evidence indicates the current back disability is unrelated to service. 2. Arthritis of the neck was not manifest during service or within one year of separation from service and the most probative evidence indicates the current neck disability is unrelated to service. CONCLUSIONS OF LAW 1. The requirements for service connection for a back disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The requirements for service connection for a neck disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in September 2008 and September 2009 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was readjudicated in May 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records, and VA examination reports. With respect to the Veteran's service treatment records, the RO attempted to obtain the full record, however, except for the separation physical examination report, the records were unavailable. In a December 2008 letter, the RO notified the Veteran of its efforts to obtain the records. Documentation of the search for the missing records includes responses from the National Personnel Records Center in October 2008 and January 2013. In a January 2013 letter, the RO listed substitutions for service records. In May 2013, the Veteran indicated he had no additional evidence. The Board also notes that actions requested in the prior remands have been undertaken. The Veteran was asked to provide additional information to assist with obtaining service treatment records, additional VA treatment records were obtained, and a VA examination was conducted with medical opinions obtained. Indeed, corrective VCAA notice was provided as requested, VA medical records were obtained, and VA medical opinions were obtained. The Veteran did not respond to VA's October 2012 request for authorization to obtain relevant records from the Texas Workers' Compensation Commission. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). There is no indication in the record that any additional evidence relevant to the issues decided is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for a chronic disease, to include arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309. Where service treatment records are unavailable, there is a heightened obligation to assist the Veteran in the development of the case, to explain findings and conclusions, and to consider carefully the benefit of the doubt. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). There is no indication that the Veteran is a combat veteran. He has not asserted that either of the claimed disabilities had their onset during combat and 38 U.S.C.A. § 1154(b) (West 2002) is not for application. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts his back and neck disability, to include current degenerative joint disease, is related to a back injury during service. In a September 2010 statement, the Veteran reported that he injured his back and neck from lifting heavy ammunition during service. Service treatment records are unavailable. Although an August 2008 Application for Compensation (VA Form 21-526) reflects the Veteran's report that he did not have a separation examination, a September 1957 separation examination report is associated with the claims file. That separation examination shows the neck, spine and musculoskeletal system were normal. His physical capacity was assigned a profile of "1." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). The first post service evidence of any low back disability is a 1996 private medical report noting the Veteran sustained a work related back injury in November 1994, with a history of a previous back injury in 1977. Although the Veteran is competent to state that he experienced back and neck pain during service, and received treatment for such, there is some question as to the reliability of the information being provided. On his initial application, he reported only having a lumbar spine condition treated in service, and indicated he did not undergo a separation examination. However, the record does include the report of his separation examination in September 1957. When completing an NA Form 13055, he reported receiving outpatient treatment for the back and neck from March 1957 to September 1958. However, he was not in service after September 1957. Likewise, when contacted in November 2009, he reported having injured his back during service in April 1959; again, though, he was not in service in 1959. In an October 2008 report of contact, the Veteran indicated his recollection is poor. In his substantive appeal, he alleged he was actually hospitalized for these conditions. Moreover, the Veteran denied having post service back injuries to the VA examiner in January 2013 that he had no further injury or trauma to his back since his discharge from service. However, the record clearly shows he reported to a physician in 1996 that he suffered low back injuries in 1977 and 1994. In light of the normal service separation examination, the post-service treatment report revealing a history of post service back injuries versus his current report of no post service injuries, and his reports of treatment in service in 1958 and 1959 when he was no longer in service, in addition to the other inconsistencies, the Board finds the history currently being reported by the Veteran is not reliable. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). Additionally, while the Veteran believes that his current back disability is related to service, there is no indication that he has specialized training in diagnosing orthopedic disorders or determining their etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis of spinal disabilities requires medical testing to identify, and such disability can have many different causes, thereby requiring medical expertise to determine the etiology. Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current low back and neck disability is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current low back disability and neck disability is not competent medical evidence. In this case, the only medical opinion of record concerning the low back disability is from the January 2013 VA examiner. That examiner determined that it is less likely as not that the Veteran's lumbar spine condition is related to service. In reaching the conclusion, the examiner noted the normal separation examination, a history of a back injuries decades after separation, and no interim evidence linking any back injury to service. The examination report reflects that although the Veteran reported having had no further injury to the back after separation, a May 1996 letter to the Workman's compensation insurance carrier from a private orthopedist notes a work-related injury to the lumbar spine in November 1994, and that magnetic resonance imaging (MRI) had shown some degenerative disc disease. A history of a previous low back injury in 1977 was also noted. Concerning the neck disability, on VA examination in April 2013, the Veteran reported an insidious onset of neck pain in the 1970s, and no injury or trauma was noted. The same examiner concluded that it is less likely as not that the Veteran's neck condition is related to service. The examiner noted the normal separation examination and a diagnosis of cervical spine disc disease many years after separation. The examiner added that although the record notes long-standing complaints of neck symptoms, there is no evidence of a nexus between the neck condition and active service. Rather, it is attributable to aging and attrition. The examiner's opinions were based on a review of the record and examination of the Veteran, and provided an adequate rationale for the opinions provided. There is no medical opinion to the contrary. Thus, the Board has accorded more probative value to the competent VA medical opinions. The examiner reviewed the claims file and the rationales for the opinions provided are based on objective evidence and reliable principles. Such is far more probative than the Veteran's lay assertion as to etiology. In summary, the preponderance of the evidence is against a finding that the current low back and neck disabilities are related to service and the evidence does not show arthritis manifest within one year following discharge from service. Accordingly, the claims for service connection for a low back disability and neck disability are denied. ORDER Service connection for a low back disability is denied. Service connection for a neck disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs