Citation Nr: 1320049 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-41 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbar spine (a back disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from December 31, 1975 to February 11, 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over this claim is now with the RO in Muskogee, Oklahoma. In the October 2009 substantive appeal, the Veteran requested a hearing at a local VA office before a member of the Board. Subsequently, in a November 2010 correspondence, the Veteran elected a hearing before a decision review officer (DRO) at the regional office. A copy of the DRO hearing is associated with the claims file. After reviewing the contentions and evidence of record, the Board finds that the issue on appeal is more accurately stated as listed on the title page of this decision. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran sustained a back injury in service which manifested, at most, in a muscle sprain. 2. The Veteran did not have symptoms of a back disability until years after service separation. 3. The current back disability is not related to an in-service injury, disease, or event. CONCLUSION OF LAW The criteria for service connection for a back disability are not met. 38 U.S.C.A. §§ 1101, 1131, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely letter dated in March 2009, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection for a back disability, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The March 2009 letter included provisions for disability ratings and for the effective date of the claims. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records and Texas Department of Criminal Justice treatment records, Social Security Administration (SSA) records, a VA examination of the back from May 2011, and the Veteran's statements. The Veteran indicated that he sought treatment at the California Department of Corrections for a back injury from 1992 to 1995. Upon request of the medical records, the California Department of Corrections replied that there were no records as described in the request. As such, further efforts to obtain those treatment records would be futile. See 38 C.F.R. § 3.159(c)(2); see also Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Also, in this regard, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion and findings obtained in this case are adequate. The VA opinion provided in May 2011 considers all the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinion stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion in this case has been met. 38 C.F.R. § 3.159(c)(4). As such, the RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Service Connection - Laws and Regulations Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). For certain chronic diseases, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a Back Disability The Veteran seeks service connection for a low back disability, which he alleges was sustained while on a "full pack run" during basic training. He testified that after injuring his back, he reported to sick call. See DRO Hearing Transcript at 3. A service treatment record from January 20, 1976 indicated that the Veteran complained of low back pain. Upon physical examination, there was no swelling and no discoloration. Straight leg testing was negative and the Veteran appeared to have tenderness at the small of the back. The impression, at that time, was a muscle sprain. There is no further mention of a back condition in the service treatment records. Indeed, in a Statement of Medical Condition from February 11, 1976 (the day of separation from active duty and merely 22 days after the complaint of low back pain), the Veteran indicated that since his last medical examination, which he noted was on December 31, 1975 (the day of enlistment into active service), there had been no change in his medical condition. In the December 31, 1975 Report of Medical History, the Veteran had no recurrent back pain. A contemporaneous report of medical examination revealed a normal spine and musculoskeletal system. In short, upon separation, the Veteran did not indicate that he had back pain or a back condition. These records, as a whole, show that the previous back condition noted in service resolved without residuals. The Board notes that there were no post-service treatment records indicating complaints of, diagnoses of, or treatment for, a back disability until February 1999. A Medical History record from the Texas Department of Criminal Justice, dated in February 1999, indicted the Veteran's reported history of a back injury in 1997. The Veteran has also asserted that he received treatment at the California Department of Corrections from 1992 to 1995 for a back injury. As indicated above, the California Department of Corrections replied that there were no records as described in the request. While the treatment records from 1992 to 1997 are not available, even assuming, arguendo, that the Veteran sustained post-service injuries to his back during that time, the absence of post-service complaints, findings, diagnosis, or treatment of a back disability after service for over a decade until 1992 is one factor, considered in addition to the other factors stated in this decision, that tends to weigh against the Veteran's claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor that tends to weigh against a claim for service connection). The Veteran testified that he experienced pain in his back since the back injury sustained in active service. See DRO Hearing Transcript at 4-5. He also contended that he did not seek treatment for his back pain after service because he did not have health insurance and was not aware that he was entitled to receive care from VA. See October 2009 Substantive Appeal. Here, the Board finds that the weight of the evidence demonstrates that the Veteran did not have back symptoms until years after separation from active service. Evidence weighing against the Veteran's claim is a VA treatment record from May 2008. At that time, the Veteran complained of chronic back pain. Significantly, he reported that the back pain began about 20 years prior (approximately in 1988) after twisting his torso, but that the pain had only been constant for the last seven to eight years. Indeed, the statement that the back pain began 20 years prior, over a decade after separation from active service, and that the pain had only become constant as early as eight years prior, is of more probative value than the Veteran's more recent assertions that he experienced back pain since the in-service injury and since service discharge. The Veteran would be expected to give a full and accurate history to a medical provider when seeking treatment to ensure adequate care. Cartright, 2 Vet. App. at 25; Pond v. West, 12 Vet. App. 341 (1991). Further, a VA treatment record from July 2008 again indicated that the Veteran had chronic back pain for six years. Another VA treatment record from July 2009 revealed that the Veteran had chronic low back pain for approximately 15 years. Notably, in a September 2009 VA treatment record (approximately eight months after filing a claim for service connection for a back disability in January 2009), the Veteran reported that he strained his back in basic training and has had low back pain off and on since then. The report also indicated no traumatic injury to the back. Until September 2009, the Veteran made no mention of a back injury resulting in a strain that he sustained during service. See Caluza at 498 (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Not only may the Veteran's memory be less than reliable with the passage of time (in this case, decades), but self interest may play a role in the more recent statements, which were only made after filing a claim of service connection for a back disability. See Pond, 12 Vet. App. at 341 (although the Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). As such, given the inconsistencies with the Veteran's statements regarding the onset of his back pain, the Board finds that the preponderance of the evidence is against the assertion that the Veteran had back pain since injuring it in service and since service separation. To assist in determining whether any current back disability is related to his service, the Veteran underwent a VA examination of the spine in May 2011. The examiner indicated that he reviewed the Veteran's medical records, including his service treatment reports. During the examination, the Veteran reported that he experienced back pain in basic training about two weeks before separation and was diagnosed with a sprain. He was treated with medication but could not recall the results. Upon a comprehensive physical evaluation of the Veteran, to include X-rays of the lumbar spine, the Veteran was diagnosed with musculoskeletal low back pain with mild to moderate degenerative change of the lower portion of the lumbosacral spine. X-ray results revealed marginal osteophyte formation at the vertebra of L4 and L5 anteriorly with narrowing of the disk space of L4-L5 and L5-S1. There was also a minimal vacuum phenomenon in the disk space of L4-L5 and L5-S1. Bilateral sacroiliac joint appeared unremarkable and there was periarticular osteosclerosis of the facet joints of the lower portion of the lumbosacral spine. In this regard, a VA treatment report from July 2008 indicated that the reason for referral was for treatment of the Veteran's degenerative joint disease of the lumbar, cervical spine. Despite this cursory note of degenerative joint disease of the lumbar spine, the Veteran has not been diagnosed with lumbar spine degenerative joint disease. He has, however, been diagnosed with degenerative joint disease of the cervical spine. Indeed, the May 2011 VA examiner clearly stated that the degenerative changes are the end result of the degenerative disc disease, not "arthritis." Even if the Board were to assume, arguendo, that the Veteran has a current diagnosis of arthritis, application of 38 C.F.R. § 3.303(b) would not be favorable to the Veteran as the evidence does not show chronic symptoms of arthritis during service or continuous symptoms of arthritis since service separation. With respect to the etiology of the back disability, the May 2011 VA examiner noted his review of the Veteran's service treatment records, which were consistent with the Veteran's assertions. He opined, after a review of the medical records, taking the Veteran's history, performing a physical examination, and reviewing the medical literature of the Veteran's disability, that it is less likely than not that the back disability was permanently aggravated by or a result of any event and/or condition that occurred and/or expressed in service, including the January 1975 lumbar sprain 2 weeks prior to service separation. The examiner explained that degenerative disc disease is a normal process of aging and not a posttraumatic event. In support of his medical opinion, the examiner cited to numerous medical literature pertaining to back disabilities and their etiologies. Here, the Board finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed back disability is not related to his active service. Specifically, the May 2011 VA examiner indicated his review of the Veteran's medical records, including service treatment records, and conducted an interview and physical examination of the Veteran. The examiner ultimately concluded that there was no relationship between the Veteran's service and the current back condition. The examiner's opinion is thus based on the accurate facts shown in the service treatment records and the opinion is competent and probative. The Board now turns to the Veteran's assertions regarding the relationship between his service and his current back disability. Here, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on such complex disorders as degenerative disc disease of the spine. See Jandreau at 1372; see also Barr at 303 (lay testimony is competent to establish the presence of observable symptomatology). As such, as a lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the etiology of a specific condition. As to the specific issue in this case, the etiology of a back disability falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). Such back conditions as degenerative disc disease are diagnosed not by symptoms alone but by specialized testing such as X-rays, MRI, CT scan, or other testing, is not diagnosed only on the symptoms such as pain and stiffness to which a lay person is competent to report, and rendering an etiology opinion would require knowledge of the various causes or risk factors for degenerative disc disease, and knowledge of periods of incubation or disease processes. The question of causation, in this case, involves a complex medical question that the Veteran is not competent to address. Jandreau at 1372. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a). Based on the above, the Board finds that the weight of the competent evidence is against a finding of a relationship between the Veteran's current back disability and military service. The only probative medical nexus opinion of record, in May 2011, weighs against the claim. The May 2011 VA opinion is competent and probative medical evidence as it is factually accurate, and is supported by an adequate rationale. The VA examiner was informed of the pertinent evidence, reviewed the medical records and service treatment records, including the Veteran's own reported histories and complaints, and fully articulated the opinion; therefore, the Board finds that the weight of the lay and medical evidence of record is against a finding of a relationship between a back disability and service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a back disability, and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a low back disability is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs