Citation Nr: 1320982 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 07-23 361 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a July 2006 rating decision, by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim of entitlement to service connection for a low back disorder. He perfected a timely appeal to that decision. On July 8, 2009, the Veteran appeared at the RO and testified at a videoconference hearing before the undersigned Veterans Law Judge, sitting in Washington, D.C. A transcript of that hearing has been associated with the claims folder. In September 2009, the Board remanded the Veteran's claim to the RO for additional development. Following the requested development a supplemental statement of the case (SSOC) was issued in December 2010. In July 2011, the Board again remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional evidentiary development and consideration. The AMC completed the requested development and issued another SSOC in January 2013. Review of the record reflects substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed the Veteran's physical claims file, as well as the Veteran's electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDING OF FACT A chronic low back disorder was not manifested during the Veteran's active military service or for many years thereafter; nor is there competent evidence relating any current low back disorder to service. CONCLUSION OF LAW The Veteran does not have a low back disorder that is the result of disease or injury incurred in or aggravated by active military service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 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 supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in February 2006 and April 2006 from the RO to the Veteran which were issued prior to the RO decision in July 2006. Additional letters were issued in July 2011, September 2011, and October 2012. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his 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 those letters 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. He was provided an opportunity at that time to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claim decided by this decision 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, that would need to be obtained for a proper disposition of his claim. 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 notices. The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the hearing the VLJ identified the issue, sought information as to treatment to determine whether all relevant records had been obtained. Ultimately the claim was remanded for additional identified records. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c) (2) as interpreted in Bryant. The Veteran has been afforded VA examinations on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the claim. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence 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. II. Factual background. The Veteran served on active duty from December 1965 to October 1967. The service treatment reports (STRs) are completely silent with respect to any complaints or clinical findings of a low back disorder. The Veteran's application for service connection (VA Form 21-526) was filed in February 2006. Submitted in support of the Veteran's claim were VA progress notes dated from August 1998 to May 2006. Those records do not reflect any complaints of or treatment for a back disorder. Received in June 2007 were VA progress notes dated from May 2006 through February 2007. A nursing note, dated in February 2007, indicates that the Veteran was seen for an annual visit and complained of sciatic pain in the left lower back area, which radiated down the left leg. No pertinent diagnosis was noted. At his personal hearing in July 2009, the Veteran testified that he did not have any back problems prior to military service. The Veteran reported that he injured his back while loading guns in service; he stated that he went to the dispensary and the medic just gave him some pain medication. The Veteran did acknowledge that he did not report any back problems at discharge. The Veteran related that he first sought treatment at a VA clinic in Miami in 1992; he stated that they never told him what was wrong with his back; and that they just kept giving him pain medication. The Veteran maintained that he has been going to the VA for his back since 1992 and he continues to go for treatment every 3 to 6 months; he noted that he went to the clinic in Miami from 1992 to 2007, then he started going to Bay Pines. The Veteran further maintained that he did not have any back injury after service. Received in September 2009 were VA treatment reports from the Bay Pines VAMC, including the Highland outpatient clinic, dated from August 1998 to September 2009. The records show that the Veteran was seen in May 2001 with complaints of back pain; it was noted that he has had intermittent low back pain for more than 5 years and he takes Motrin with good relief. The Veteran indicated that the pain usually lasts only 5 days or less; he stated that the back pain this time is the usual with no radiation, fever or chills and has not lasted 5 days yet. Following a physical examination, the assessment was low back pain with radiculopathy. During a physical therapy session later in May 2001, the Veteran stated that he started receiving physical 6 years ago for the same condition. A rehab consultation report dated in August 2003 noted that the Veteran had pain from a herniated nucleus pulposus and he was diagnosed with sciatica. The Veteran noted that the Veteran had been getting worse in the last year. A March 2004 treatment note indicated that the Veteran's current active medical problems include degenerative of lumbar or lumbosacral intervertebral disc. A primary care note dated in February 2007 indicates that the Veteran was seen for reevaluation and continuation of care of his chronic medical problems. At that time, the Veteran reported that he had had progressive low back pain for approximately 7 weeks, the worst approximately three to three and a half weeks ago. He also reported residual left lower leg outer aspect paresthesias; he stated that he used ice alternating with heat for pain. The assessment was low back pain. The Veteran was afforded a VA examination in October 2009. At that time, he stated that he was loading heavy artillery shells in 1965 which resulted in back pain. The Veteran indicated that he was taken to the dispensary; no x-rays were taken, but he was given Motrin and sent to duty. The Veteran reported that he continued to have mild chronic pain until 1996 without a specific incident. He stated that the back pain got worse and was told that pain was due to arthritis. The Veteran related that he was followed at Homestead VA, but there are not records of back pain complaints until April 2008. Prior to that, he was seen at the VA for complete examination, but he never mentioned any low back pain until a visit in April 2008. It was noted that the Veteran has been a dump truck driver since discharge from service. It was noted that the Veteran had constant pain over the lumbar vertebrae L2-S1 from the lumbar area to the left foot; it was reported that the pain was worse with driving and bending. X-ray study of the lumbar spine revealed multilevel degenerative changes, more moderately advanced along the lower thoracic spine and at the L4-L5 and L5-S1 levels. The pertinent diagnosis is mild degenerative arthritis of the lumbar spine. The examiner stated that the Veteran's back condition is less likely than not the result of lifting artillery shells or other trauma during his military service. On the occasion of another VA examination in October 2011, the Veteran reported that he injured his back in service lifting. However, the examiner noted that the STRs are silent as to treatment for a back injury. It was noted that the Veteran was followed at the Miami VA and first reported back pain with left sciatica since 1992. Other records from 2001, 2003 and later report that the Veteran had herniated nucleus pulposus with sciatica. X-ray of the lumbar spine in 2001 revealed mild osteophytes at L4-L5; x-ray in October 2009 revealed moderate advanced degenerative changes at L4-5 and L5-S1. The examiner noted, incidentally, that the Veteran was diagnosed with lupus and he has remained untreated since 2003. The Veteran was a dump truck driver after service, but he had to stop working in 1974 due to back pain. He worked in construction doing drywall and finishing work until 1995. The Veteran was also seen for increased back pain after a dirt bike accident on August 13, 2010. The Veteran did not report any flare-ups of back pain. Following a physical evaluation, the examiner reported a diagnosis of degenerative disease of the lumbar spine, with left sciatica. The examiner opined that the low back condition was less likely than not incurred in or caused by the claimed inservice injury, event or illness. The examiner explained that although the Veteran claims an inservice back injury, there is no evidence of same in the STRs. He further noted that the Veteran first reported back pain in 1992; and, x-rays in 2001 showed minimal osteophyte at L4 and L5 without disc changes. X-rays in 2003 showed moderately advanced degenerative disk changes. There was never any MRI/CT scans document lumbar disc disease. The Veteran worked as a dump truck driver and stated that he stopped due to back pain in 1974, but then he worked in construction (drywall) until 1995. The examiner stated that it is indeterminable which injury, employment or accident during his life could have led to his current disability. Once again there is no evidence in his service treatment records. The examiner further noted that the Veteran was also diagnosed with lupus in 2003 which has musculoskeletal components that the Veteran had decided not to treat. The veteran is on no medication for back pain and uses no assistive devices. III. Legal Analysis. Service connection is warranted for 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. §§ 1110, 1131. To establish compensation for a present disability, there must be: "(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). Service connection will be presumed for certain chronic diseases, such as arthritis, if they were manifest to a compensable degree within the year after active service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Although the disease need not be diagnosed within the presumptive 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). A 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 (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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 is within its province to weigh that testimony and to 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, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. After review of the evidentiary record, the Board finds that the preponderance of the evidence is against the Veteran's claim. In this regard, the Board notes that the Veteran's STRs are completely silent with respect to any complaints, clinical findings or diagnoses of a back disorder. In fact, at the time of his separation examination in October 1967, clinical evaluation of the spine was normal and the Veteran denied having any back problem at that time. The first clinical documentation of the onset of a low back disorder is in May 2001, some 33 years after service separation. 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 Veteran here has contended continuity of low back pain following service. However, upon separation examination in October 1967, the Veteran denied any back problems and clinical evaluation of the spine was normal. Moreover, he failed to raise a claim of entitlement to service connection for a low back disorder until 2006, over 39 years following discharge. Even acknowledging the Veteran's claim that he sought treatment since 1992, the treatment records dating back to 1998 are completely silent with respect to any complaints of back pain. The failure to raise a claim strongly suggests that he has not suffered from chronic and continuous symptomatology since active service. For these reasons, the Board finds that his assertions regarding continued symptoms are not credible. Therefore, continuity of symptomatology has not been demonstrated, either by the clinical evidence or through the Veteran's statements. The Board notes that the absence of evidence constitutes negative evidence against the claim because it tends to disprove that the claimed disorder was the result of an inservice injury, which resulted in a chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). This lack of objective evidence between the period of active military service ending in 1967 and the first diagnoses in 2001, is itself evidence that tends to show that the Veteran's current back disorder did not have its onset in service or for many years thereafter. 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. Moreover, the evidence of record does not support the Veteran's contention that there is a connection between his current back disorder and an injury to the back in service. The Board notes that, while the Veteran has a current diagnosis of degenerative disc disease of the lumbar spine, there is no reliable evidence demonstrating a relationship between the Veteran's currently diagnosed back disorder and service. The Veteran has not submitted any competent evidence of a nexus to service. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Rather, following a VA examination in October 2009, the VA examiner stated that the Veteran's back condition is less than the result of lifting artillery shells or other trauma during his military service. More recently, in October 2011, a VA examiner reviewed the claims folder, examined the Veteran and opined that the low back condition was less likely than not incurred in or caused by the claimed inservice injury, event or illness. The examiner explained that although the Veteran claims an inservice back injury, there is no evidence of same in the STRs. He further noted that the Veteran first reported back pain in 1992; and, x-rays in 2001 showed minimal osteophyte at L4 and L5 without disc changes. X-rays in 2003 showed moderately advanced degenerative disk changes. There was never any MRI/CT scans that document lumbar disc disease. He noted that the Veteran worked as a dump truck driver and stated that he stopped due to back pain in 1974, but then he worked in construction (drywall) until 1995. The examiner stated that it is indeterminable which injury, employment or accident during his life could have led to his current disability. Once again there is no evidence in his service treatment records. In light of the foregoing, the Board notes that the only evidence suggesting a nexus between active duty service and a back disorder is limited to the Veteran's own statements. A lay person is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence showing, and the Veteran does not assert, that he has medical training to provide competent medical evidence as to the etiology of the low back disorder. Here, the Board finds his assertions to be of less value than the contemporaneous records during service and the October 2011 VA examiner's opinion. Furthermore, his assertion of continuity since service is unreliable. Thus, the record contains no competent evidence that the Veteran has a current disability of the back that is related to a disease or injury incurred during his service. 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 many 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 low back disorder, including degenerative disc disease, must be denied. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001) (benefit-of-the-doubt rule does not apply when preponderance of evidence is against claim). ORDER Service connection for a low back disorder is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs