Citation Nr: 1322998 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-15 286A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a back disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In September 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. The case was remanded in February 2013 for additional development. The matter is now returned to the Board for further appellate consideration. In April 2013, the Veteran submitted additional evidence in support of his claim on appeal, accompanied by a waiver of review by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2012). The Virtual VA electronic claims file has been reviewed; a review of the documents reveals that it contains no additional documents pertinent to the issue on appeal. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a current back disorder due to a disease or injury in service. CONCLUSION OF LAW A back disorder was not incurred in or aggravated by service, nor may spinal arthritis be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in correspondence dated in April 2008 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability evaluations and effective dates are assigned. The case was most recently readjudicated in April 2013. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. There is no evidence that additional records have yet to be requested, or that additional examinations for these issues are in order. As noted, in February 2013 the claim was remanded for additional development, to include VA examination. The Veteran was afforded an adequate VA examination in March 2013, and the examination report, which included all needed findings and rationale, has been associated with the claims file. There has been substantial compliance with the remand directives, fulfilling the duty to assist, and the case is now ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed all the evidence in the Veteran's claims files, which includes his written contentions, service treatment records, private treatment records, VA examination report, and hearing testimony. 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 Veteran 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). Relevant Laws and Regulations 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). In order to prevail on the issue of service connection there must be medical evidence of a disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic diseases, including arthritis, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from active duty. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran asserts that he is entitled to service connection for a chronic back disability that was incurred during active duty service and has caused recurring pain ever since. At a September 2012 Board hearing, the Veteran explained that his back "went out" while doing push-ups and sit-ups. Despite reporting this complaint, the Veteran alleged that his sergeant placed his foot on the appellant's back and ordered him to perform more push-ups, but he was unable to move and had to be carried to the dispensary where he was treated with cold packs and pain medication. The appellant reports that following this event he was unable to get up for 4 or 5 days, and that since then he has required treatment for his back every 3 or 4 months. He stated that he has had nearly continuous back pain since his in-service injury, but he was able to continue serving in the Army and then work in his civilian jobs only with the help of pain medication. The Veteran's service treatment records show that in June 1964 he reported lumbar pain and was treated for a "muscular injury" of the right lumbar region. At a December 1965 separation examination, the Veteran's spine was clinically evaluated as normal. The service treatment records do not include any additional complaints or treatment for the back or spine. The Veteran's private medical records show that he has been receiving treatment for low back pain since at least October 1998, which his treating physician has diagnosed as degenerative disc disease of the lumbar spine. The Veteran was noted to be overweight, and treatment recommendations for his back disorder included weight loss. An MRI report from October 2004 shows that the Veteran had a right extraforaminal L5-S1 disc protrusion, paracentral and intraforaminal disc protrusion at L4-5, and bilateral facet protrusions at L4-5 and L5-S1, and his physician then diagnosed him with lumbar spondylosis with right L4-5 disc protrusion. In May 2007, the Veteran was diagnosed with L5-S1 disc protrusion and facet joint effusion and treated with epidural injections. The records show that since then the Veteran has received regular treatment for back pain. The most recent treatment of record is dated in January 2013; it notes that the Veteran continues to have low back pain that flares from time to time. The diagnosis was lumbar facet joint pain. The Veteran has also submitted treatment records from treating chiropractors and acupuncturists. On a July 2001 case history form, the Veteran wrote that he had had his condition for 42 years, but does not explain what condition he is referring to. A July 2001 chiropractic treatment record diagnoses the Veteran with lumbar segmental dysfunction and lumbo neuritis/radiculitis and notes that its onset had gradually occurred over the past two years. A November 2008 letter from another chiropractor's office written by the office manager states that until 12 years ago the Veteran had been receiving treatment there for over 15 years. The Veteran has not identified any other private treatment providers or indicated that he has at any time received VA medical treatment. None of the Veteran's private treatment records contain any opinions regarding the etiology of his back disorders. In March 2013, the Veteran was afforded a VA examination of the thoracolumbar spine. The examiner reviewed the claims file and personally examined the Veteran. The Veteran reported the history of being injured in basic training, that he had severe lower back pain upon prolonged sitting or standing, and that he has had back pain since soon after service separation. The examiner discussed the Veteran's in-service injury and his reports of right lumbar pain starting after separation from service and epidural injection treatment roughly twice a year since. She also discussed the Veteran's private medical treatment records and his civilian employment with the Ford Motor Company, where his duties included attaching wiring within cars. Physical examination yielded a diagnosis of lumbar degenerative joint and disc disease. The examiner opined that it was less likely than not that the Veteran's back disorder was incurred in or caused by the in-service injury. She noted that the Veteran's service treatment records showed only a musculoskeletal injury in 1964, that his separation examination showed no back injuries, and that the next medical evidence of a back injury was not until 30 years after separation, when the Veteran was in his 50s. She explained that degenerative spinal disease usually begins to occur in males in their mid-40s and can be accelerated by weight and heavy work. She observed that the Veteran weighed in excess of 300 pounds in 1998 and performed a job that required stooping in confined areas when he worked for Ford. She ultimately stated that the Veteran's spinal changes were a process of aging and were not inconsistent with his age, weight, and later work requirements. There is no competent evidence offering an opinion contrary to the March 2013 opinion. In light of the foregoing evidence, the preponderance of the most probative evidence weighs against granting service connection. While the Veteran clearly has a current back disorder, there is no competent medical evidence of record indicating that the Veteran's current back disorder is related to service. The sole medical opinion of record, that of the March 2013 examiner, states that it is less likely than not related to service. The only statements in favor of a finding of a relationship to service are those of the Veteran himself. The Board acknowledges the Veteran's statements indicating that he injured his back in service and had intermittent back pain since. The appellant is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render an opinion on the etiology of his current degenerative disc disease or degenerative joint disease, as such requires medical expertise to determine the etiology of these disorders. 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). Thus, the Veteran's opinion that his back disorder is related to an injury during service is not a competent medical opinion and is not afforded significant probative weight. As such, the medical findings and opinion of the VA examiner warrant greater probative weight than the Veteran's lay contentions. While the Veteran has claimed a chronicity of symptomatology, he has not presented any medical evidence linking his claim to service or establishing chronicity of symptoms shown to be related to arthritis. Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011) (The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a)). The Veteran indicated at his September 2012 Board hearing that he had received medical treatment for his back approximately every three months since his 1966 separation from service until the present, but he has not provided VA with these records or indicated where this treatment was received or what the exact diagnosis was at that time. The earliest medical treatment record currently of record is from October 1998, and a November 2008 letter from the Veteran's chiropractor's office manager indicates that he had been receiving treatment for low back pain there for 15 years, i.e., until approximately 12 years ago, but that these records had already been destroyed. There is no information given regarding the Veteran's precise diagnosis at that time, but even if the Veteran had been receiving medical treatment for degenerative joint or disc disease as early as 1981, as indicated by this letter, that is still approximately 15 years after separation from active duty. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection cannot be granted on a presumptive basis pursuant to 38 C.F.R. § 3.309(a). While the Veteran's service treatment records indicate that in June 1964 he was treated for a muscular injury, there is no evidence that the Veteran's incurred a back trauma that led to a chronic injury, including any evidence of degenerative joint or disc disease. There is no medical evidence indicating that arthritis of the spine existed or manifested to a compensable degree within one year of his separation from active duty, nor has the Veteran ever indicated that he was diagnosed with arthritis at that time. As there is no competent evidence indicating that the Veteran developed a back disorder as a result of his service or that arthritis of the spine manifested to a compensable degree within one year from separation from active duty, the evidence is not in equipoise. The preponderance of the evidence indicates that the Veteran's current lumbar degenerative disc and joint disease, is not the result of service. Without competent and probative evidence indicating that the Veteran's back disorder was caused by or is otherwise related to an injury during service, on a direct or presumptive basis, service connection is not warranted. In making its determination, the Board considered the applicability of the benefit of the doubt rule. 38 U.S.C.A. § 5107(b). However, as a preponderance of the evidence is against the claim for entitlement to service connection for a back disorder, this rule does not apply, and the claim must be denied. ORDER Entitlement to service connection for a back disorder is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs