Citation Nr: 1323009 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-48 229 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION The Veteran represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to April 1990. He also served from May 1998 to February 2006 as a member of the National Guard, to include periods of active duty for training (ACDUTRA). This appeal to the Board of Veterans' Appeals (Board) arose from a June 2007 rating decision in which the RO, inter alia, granted the Veteran's claims for service connection for bilateral hearing loss and for residuals of a right long finger fracture, and assigned a noncompensable rating for each, effective February 3, 2006. The RO also denied service connection for degenerative disc disease of the lumbar spine, for unspecified left arm condition, and for left wrist condition. In March 2008, the Veteran filed a notice of disagreement (NOD) with respect to the initial ratings assigned for bilateral hearing loss and residuals of a right long finger fracture, as well as with the denial of his service-connection claims. A statement of the case (SOC) was issued in October 2009, and later that month, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals). In June 2008, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; and in June 2010, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In November 2011, the Board denied service connection for a left wrist disability, a left arm disability, and a low back disability, as well as denied higher initial ratings for service-connected left ear hearing loss and residuals of a right long finger fracture. The Veteran appealed only the Board's denial of service connection for a low back disability to the United States Court of Appeals for Veterans Claims (Court). In August 2012, the Court granted a joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. In January 2013, the Board remanded the claim remaining on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC continued to deny the claim (as reflected in an April 2013 supplemental SOC (SSOC)) and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the matter remaining on appeal has been accomplished. 2. Although the Veteran had documented low back complaints during service, there is no clear indication of actual lumbar spine injury incurred during any service; no actual low back disability was diagnosed during the Veteran's period of active service or ACDUCTRA, or for several years after service; there is no credible evidence of continuity of low back symptoms during and since service; and the only medical opinion on the question of whether there exists a medical nexus between low back disability diagnosed many years post service and service weighs against the claim. CONCLUSION OF LAW The criteria for service connection for low back disability are not met. 38 U.S.C.A. §§ 101 (22), (24), 1101, 1110, 1112, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations 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 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R.§ 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the 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-compliant 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, to include the AMC)). Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a June 2006 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. This letter also included information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The June 2007 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the June 2006 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the issue on appeal. Pertinent medical evidence associated with the claims file consists of service (to include National Guard) and private treatment records and personnel records, as well as the report of March 2013 VA examination reflecting the requested medical opinion. Also of record and considered in connection with this matter are the transcripts of the Veteran's DRO and Board hearings, as well as various written documents provided by the Veteran and by his representative, on his behalf. The Board finds that no further RO action on the matter remaining on appeal, prior to appellate consideration, is required. Specifically as regards to the hearings on appeal, the Board points out that, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Here, each transcript reflects that during each hearing, the issues then on appeal were enumerated by the presiding DRO or Veterans Law Judge, as appropriate, and that the Veteran had full opportunity to present testimony as to the etiology, nature and extent of his claimed problems. As regards to the low back, during the more recent, Board hearing, in particular, the Veteran provided testimony regarding onset and nature of his back problems, to include an incident in which he fell off rocks while fishing on a beach during off duty status, and his subsequent treatment for severe back strain (Transcript at 21). Although neither the DRO nor the undersigned explicitly suggested the submission of specific evidence to support the claim, it is noted that, subsequent to the hearing, the Board's decision, and the appeal of that decision to the Court, the claim was remanded for the express purpose of obtaining an appropriate medical opinion addressing the etiology of current low back disability, and such opinion was obtained. On these facts, the Board finds that the requirements of 38 C.F.R. 3.103(c)(2), and Bryant have been met, and that the Board hearing, in particular, was legally sufficient. The Board also finds that the March 2013 VA examination report and opinion are substantially in compliance with the January 2013 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Such examination report and opinion are sufficient to evaluate the claim, as the examiner conducted a thorough and contemporaneous examination of the Veteran, and his opinion took into account records of pre-service treatment, service treatment records, and records of post-service examination and treatment. See Lineberger v. Brown, 5 Vet. App. 367 (1993); Waddell v. Brown, 5 Vet. App. 454 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1994). In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim on appeal. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc ., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service connection Service connection may be granted for 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. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board observes that, with respect to the Veteran's National Guard service, the applicable laws and regulations permit service connection only for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). See 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6. Certain chronic diseases, such as arthritis, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for arthritis) even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a 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 only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When 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). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical opinion) is limited to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim for service connection for low back disability must be denied. The evidence of record clearly establishes that the Veteran has a current low back disability, as reflected, for example, in the report an October 2003 MRI of the lumbar spine noting diagnoses of right facet arthropathy at L4-5 and left facet arthropathy at L5-S1, and the report of March 2013 VA examination documenting a diagnosis of lumbar spine degenerative joint disease. However, the record fails to persuasively establish that current low back disability had its onset during active duty service, or ACDUTRA, or that the disability is medically related to any incident of active or National Guard service. During the Veteran's June 2008 DRO hearing, he testified that he injured his back while stretching during physical training while on ACDUTRA. During his June 2010 Board hearing, the Veteran testified that he thought that he hurt his back doing sit-ups during ACDUTRA. He also mentioned that he sprained his back off duty while fishing. Service treatment records reflect that in March 1976, the Veteran complained of straining his back while wrestling on a beach. The Veteran had sensitivity to his muscles in the lower back L5-L6 and limited range of motion. The impression was lower back strain. In May 1976, the Veteran denied recurrent back pain on a Report of Medical History. The Veteran, again, denied recurrent back pain on Reports of Medical History in November 1980 and in May 1981. In December 1984, the Veteran reported injuring his back at work approximately 14 months ago. An x-ray of the thoracic spine revealed no abnormalities. At separation, the Veteran's spine was normal. The first record after separation from active duty is dated in October 2003 and is the report of a lumbar MRI of the spine revealing severe right-sided facet arthropathy at L4-L5, and a moderate degree of left facet arthropathy at L5-S1. There was no evidence of a fracture, contusion, or herniated nucleus pulpous. The impression was right facet arthropathy at L4-L5 and left facet arthropathy at L5-S1. In 2005, the Veteran was given a profile, as he was unable to perform a timed two-mile run. In support of the Veteran's physical profile, a private physician wrote a letter in April 2005. It was stated that the Veteran was a patient for several years and that he was known to have significant focal arthritis in his lumbar spine that gave him some degree of constant low back pain. With exercises such as running his back pain greatly increased and he developed a form of sciatica with very bad cramping and pain felt through the right buttock down the thigh and he must typically stop running. In addition, he is known to have early stages of chronic obstructive pulmonary disease as he gets winded quiet rapidly. It was then stated that, for those reasons a request was being made that the Veteran would be allowed to walk or perform a different exercise as the PT part of his testing. On VA examination in March 2013, the Veteran was diagnosed with lumbar spine degenerative joint disease. The VA examiner opined that it was less likely than not that the Veteran's back condition was incurred in or caused by the claimed in-service injury, event, or illness. He stated that there was no medical evidence that supports that a claimed injury occurred during the Veteran's military service. He stated that there were a few conflicting accounts of how the low back strain initially occurred during service, to include an in-service fall in the Navy, fishing while he was off duty, and multiple strains while carrying heavy objects. The examiner emphasized, however, that regardless of which mechanism, none is justifiable as the etiology of the facet arthrosis of the lumbar spine. Furthermore, the Veteran suffered no long term condition since there was no evidence of a "rest" treatment after a "severe back strain", that he had further complications, or that he had a need to seek additional treatments. The examiner noted that, while the Veteran supposedly had a stretching injury after sit ups and heard a "pop", the MRI of the lumbar spine failed to reveal anything acute other than L4-5 and L5-S1 facet arthrosis. The examiner then expressed that, while based on the history and physical examination that while the Veteran's arthritic pain is consistent with the findings on the imaging studies, he found that the Veteran's localized mechanical symptoms did not justify the extent of disability that the Veteran claims. There are indeed moderate degenerative changes but no evidence of formainal stenosis leading to radiculopathy or degenerative discs. The impact of this mechanical low back pain on his quality of life has been mild in terms of necessitating chronic treatment or seeking additional evaluation other than for compensation purposes. The VA examiner stated that he found certain inconsistencies in the Veteran's testimony still somewhat troubling. Specifically, since the claimed mechanism of injury for the onset of the low back pain has changed a couple of times. In addition, the impact of his pain on his disability has changed compared to his hearing records. He stated that he also recovered the Veteran's orthopedic clinic visits and low back pain has not been a complaint and one would think that the Veteran would have easily mentioned it when he was being seen for his orthopedic issues if that was an issue. Collectively, the record reflects that, although the Veteran is currently diagnosed with a low back disability, there is no medical nexus between any such disability and service. Although the Veteran was diagnosed with low back strain in March 1976, only two months later, the Veteran denied recurrent back pain, indicating that he no longer suffered from any residual pain pertaining to that incident. The Board additionally notes that the March 1976 complaints of low back pain were muscle related. The Board acknowledges that the Veteran complained of pain in December 1984, reportedly from a back injury 14 months prior to that date; however, the Veteran reported pain in his thoracic spine, whereas the current claim involves lumbar spine disability, specifically, L4-L5 and L5-S1. Further, the Veteran's x-ray was normal in December 1984 and revealed no abnormalities. Thus, service records document no diagnosis, or indicia, of chronic low back disability. Post service evidence does not reflect any diagnosis of a low back disability for more than 13 years after active military service-clearly well outside of the one-year period for establishing presumptive service connection for arthritis. The Board also points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As for the medical opinion evidence, the Board notes that there is only one medical opinion of record to address the etiology-that of the March 2012 VA examiner-and it weighs against the Veteran's claim. The March 2013 VA examiner's opinion clearly was based on consideration of, and is consistent with, the evidence of record. Moreover, the examiner offered clear conclusions with supporting data as well as a reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Consequently, the Board assigns great probative value to the VA examiner's opinion on the question of medical etiology. There is no contradictory medical opinion. Significantly, the April 2005 private physician letter in support of a physical profile did not discuss the onset or etiology of the Veteran's back pain, with the exception that it occurred when the Veteran was running; moreover, the physical profile was also recommended because of early stages of chronic obstructive pulmonary disease. Furthermore, neither the Veteran nor his representative has presented or identified any existing medical opinion that, in fact, supports the Veteran's assertions that current low back disability had it onset during service. A veteran seeking disability benefits must establish not only the existence of a disability, but also that there exists an etiological connection between his military service and the disability. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). That has not been shown in this case, as the Board herein above finds that the only probative opinion of record on the question of medical etiology of current back disability weighs against the Veteran's claim. Further, to whatever extent the Veteran and/or his representative attempt to establish that there exists an etiological relationship between the Veteran's current low back disability and service on the basis of lay assertions, alone, such attempt must fail. As for lay assertions of continuity of symptoms, the Board points out that laypersons such as the Veteran is are competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). The Veteran is also competent to testify about observable symptoms or injury residuals. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Veteran is competent to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board, however, retains the discretion to determine the credibility and weight of all the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Lay statements made when medical treatment was being rendered may be afforded greater probative value. These records were generated with a view towards ascertaining the appellant's then-state of physical fitness, they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Here, however, as noted by the March 2013 VA examiner, the Veteran assertions as to the onset of back problems appear to have been somewhat inconsistent, there is no clear evidence of actual low back injury during any service, and the Veteran did not report any low back pain during his orthopedic clinic visits. Hence, any current assertions that the Veteran experienced a continuity of low back symptoms during and since service-advanced in connection with the current claim for monetary benefits-are not deemed credible. The Board further notes that, despite the fact that the Veteran complained of back pain during service, as indicated, the governing legal authority requires that the Veteran's back disability be related to an injury or disease that occurred during active duty service or ACDUTRA, or an injury during INACDUTRA. There is no credible indication of record that the Veteran's low back disability resulted from any injury during any type of service. Although the Veteran was given a profile in part because of his degenerative joint disease of the lumbar spine in 2005, the record simply fails to indicate that the Veteran developed this, or any other relevant back disability, during active duty service or ACDUTRA. Finally, as for any direct assertions of medical nexus, the matter of the medical etiology of lumbar spine disability under consideration involves a complex medical question that is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on the matter of medical etiology of the disability for which service connection is sought. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). See also, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layperson is generally not capable of opining on matters requiring medical knowledge). Hence, lay assertions as to etiology of the Veteran's low back disability have no probative value. In short, in this case, the Veteran simply cannot support his claim, or controvert the probative opinion of the May 2013 VA examiner, on the basis of lay assertions, alone. For all the foregoing reasons, the Board finds that the claim for service connection for low back disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a low back disability is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs