Citation Nr: 1323451 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-28 000A ) DATE ) ) On appeal from the Department of Veterans Affairs Hartford Regional Office in Newington, Connecticut THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from January 1973 to January 1976. He subsequently joined the Air National Guard in November 1992 and had various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) until he was medically disqualified in June 2002. His periods of ACDUTRA included a period in January 2007. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut. In December 2012, the Board remanded this claim for additional development. The Board is satisfied that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDING OF FACT A low back disability was not present during the Veteran's period of active duty, arthritis of the low back was not manifested within one year after the veteran's period of active duty, a low back disorder did not originate or increase in severity during a period of active duty for training or a period of inactive duty for training, and a low back disorder is not etiologically related to any period of service. CONCLUSION OF LAW The criteria for service connection of a low back disability have not been met. U.S.C.A. §§ 101, 106, 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.6(a), 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with all required notice by letter dated in February 2008, prior to the initial adjudication of the claim. The record also reflects that service treatment records and relevant post-service treatment records have been obtained. Records associated with the application for benefits from the Social Security Administration were also obtained. Neither the Veteran nor his representative has identified any additional, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Board acknowledges that the Veteran's service personnel records are not of record and that all of the Veteran's periods of duty for training are not known to the Board. The record does not suggest, and the Veteran does not allege, that the low back disability is possibly related (either through date of onset or cause) to any period of active service other than the January 1997 period which is known to the Board, however. Thus, the Board finds the absence of the service personnel records does not result in any prejudice. In addition, the Veteran was afforded a VA examination by a physician in response to the claim. The Board finds that the report of the January 2013 VA examination is adequate for adjudication purposes: the examiner reviewed the claims files and provided a probative opinion as to whether the low back disability is related to service: the opinion is supported by thorough explanation. The Board acknowledges that the examiner erroneously reported that the Veteran's service ended in 1997. The Board finds this error does not strip the opinion of probative value, however. The examiner does not base the opinion solely on the length of time between discharge from the National Guard and the initial diagnosis in 2002; rather the record indicates that the examiner considered the length of time between the injury in 1997 and the initial diagnosis of a low back disability and the Veteran's civilian occupation. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or active duty for training or for disability resulting from injury incurred in or aggravated by inactive duty for training. 38 U.S.C.A. §§ 101, 106, 1110 (West 2002); 38 C.F.R. §§ 3.6, 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran claims that service connection is warranted for low back disability because it is due to an injury sustained in a fall during a period of active duty for training in January 1997. Service treatment and examination records reflect no findings or histories indicative of a low back disability or injury. A May 2000 private neurological consultation record reflects the Veteran's history of past treatment for low back injury after lifting a person onto a gurney and current treatment for backache and right sacroiliac and sciatic pain. The Veteran also reported increased neck, shoulder, and arm pain since "the injury." The examining neurosurgeon noted that the Veteran was "well-known" based on treatment for bifrontal injuries after a skull fracture. The record does not include any findings pertaining to the low back. After examination, the Veteran was diagnosed with persistent cognitive deficit and change of personality. The examiner found that, "essentially all of 'these' problems are felt to be causally related to the [Veteran's] fall in January 1997. The context of the record indicates that this finding referenced the cognitive deficit and change of personality and not the reported back pain. A December 2002 VA treatment record reflects the Veteran's history of "longstanding intermittent" low back pain that radiated down the right leg. May and June 2003 VA treatment records reflect the Veteran's three-year history of radicular low back pain. The Veteran was determined to have a herniated disc, for which he underwent surgery in June 2003 and 2005. Subsequent records reflect continued treatment for low back disability and records dated in February and September 2005 reflect histories of low back pain since 2001, which had a spontaneous onset, i.e. an onset unassociated with injury. See February and September 2005 Salame treatment records. In January 2008, the Veteran reported the initial history of injury of the low back at the time of the January 1997 fall which resulted in a skull fracture. Subsequent records reflect that he reported a history of injuring his low back in January 1997 and a history of an onset of low back pain a "few months to a year later," and in November 2008, a private physician noted the history of injury in 1997, and opined that the Veteran's lower back problems were the results of the January 1997 "fall-down incident." See February 2008 Salame treatment record; November 2008 Salame statement. In January 2011, during a hearing before a Decision Review Officer (DRO), the Veteran testified that he injured his back when he fell in January 1997. He explained that his back "locked up" and he then blacked out, causing him to fall. He testified that he did not seek treatment for the back right away because he was "so busy trying to deal" with his head injury. A January 2013 VA examination record reflects the Veteran's history of falling on his back, hitting his head and neck, in January 1997. The record further reflects the Veteran's history of working in the carpentry/remodeling business when not in the National Guard. The examiner noted that the Veteran first reported back pain in 2000, after carrying a person onto a gurney and that, when asked, the Veteran reported that the "person" was his father-in-law. The Veteran reported a history of pain since 2000. The examiner, a physician, diagnosed lumbosacral strain/lumbar disc disease status-post laminectomy. The examiner opined that it was less likely than not that the lumbar spine disability was incurred in or caused by service. The examiner specifically found it less likely than not that the lumbar spine disability was the result of the January 1997 fall. The examiner explained that there was no documented treatment for low back pain until 2002, that the Veteran had issues with his cervical spine and did not seek care for his low back until 2002, and that the Veteran worked as a carpenter from 1981 until 1997. The examiner found it more likely that the low back disability was related to the Veteran's work as a carpenter. The examiner explained that a medical study found that construction laborers and carpenters had the highest prevalence of back pain within the construction industry when comparing trades and industries and that back pain was endemic among construction workers because of workplace risk factors. Service connection is not warranted for a low back disability because the preponderance of the evidence shows that no low back disability was present in active service, that arthritis was not manifested within one year after the Veteran's discharge from his extended period of service, and that no current low back disability is related to active service. The service treatment and examination records reflect no findings or histories suggestive of a low back disability, and the first diagnosis postdates the Veteran's discharge from the National Guard. The Board acknowledges that the evidence documents that low back pain was reported and treated in 2000, while the Veteran was a member of the National Guard. However, the evidence, namely the explanation of what he was doing (and who he was helping) when the pain began, indicates that the Veteran was not performing active duty or active duty training at that time of the onset of the low back pain. The Board further acknowledges that the Veteran has reported a history of low back injury and pain as a result of the January 1997 fall, which occurred during ACDUTRA. Although the Veteran is competent to report this history, the Board finds the histories of low back injury and associated symptoms since the January 1997 fall are not credible based on the Veteran's failure to provide a history of injury of the low back or any symptoms involving the low back as a result of that fall prior to 2008, though he was asked about that fall and received treatment and underwent examination for the residuals of that fall during that time, the 2000 treatment record which reveals a contradictory history of low back pain since earlier that year after lifting someone on a gurney; the histories provided earlier than 2008 which indicate that the low back pain began spontaneously in 2000-2001, and the histories provided earlier than 2011 which indicate that the Veteran did not remember why or how he fell (thereby discrediting the account provided at the 2011 hearing). Additionally, the competent and probative evidence establishes that the low back disability is not related to service. The Board acknowledges that a private physician has linked the low back disability to the January 1997 fall during service. However, this opinion is based on the history provided by the Veteran of injuring his low back in the January 1997 fall, which the Board finds lack credibility. Thus, the opinion is not probative evidence. The Board further acknowledges the Veteran's contention that the May 2000 private neurological consultation record reflects an opinion linking the low back disability to the January 1997 fall. The Board does not read the record as suggesting such an opinion, however; rather, the Board finds the examiner was only offering an opinion as to the etiology of the diagnosed cognitive deficit and change of personality. The Board finds the record, on its face, does not support the Veteran's interpretation and, thus, it is not probative evidence of a link between the low back disability and active service. Furthermore, even if the record could be interpreted as evidence linking the low back disability and the January 1997 fall, the Board finds the opinion lacks probative value because the physician did not provide a rationale. In contrast, as discussed above, the Board finds the VA examiner's opinion is probative as it is based on facts that the Board accepts are true and is supported by rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) Accordingly, service connection is not warranted for the Veteran's low back disability. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for a low back disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs