Citation Nr: 1323767 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 05-20 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and her (ex-)husband ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1981 to March 1984 and from August 1989 to February 1990. Additionally, she had periods of service in the Army Reserve, both between her two reported periods and after her second period. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously before the Board in August 2007 and December 2009 when it was remanded for further development. In a May 2013 Congressional inquiry, the Veteran raised the issues of service connection for a cervical spine disorder and posttraumatic stress disorder due to military sexual trauma. These matters are not before the Board and are referred to the agency of original jurisdiction for action deemed appropriate. The following determination is based on review of the Veteran's claims file in addition to her Virtual VA "eFolder." FINDINGS OF FACT 1. The Veteran was treated for low back complaints during service. Diagnoses included chronic low back strain and chronic low back pain. 2. The Veteran's low back disorder, currently diagnosed as lumbar strain with some sclerosis at the facet of L4-5, is not etiologically related to her inservice back complaints. CONCLUSION OF LAW A low back disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in May 2004, February 2007, August 2007, March 2010) specifically notified her of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate her claim; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence she was expected to provide. The United States Court of Appeals for Veterans Claims (Court) 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, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the February 2007, August 2007, and March 2010 letters mentioned above. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of her service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examination reports, and statements and testimony from the Veteran, her husband, and her representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The appellant was afforded the opportunity to testify before the undersigned in April 2009. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. 3.103(c)(2) (2012) requires that the Veteran's Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned essentially elicited testimony necessary to determine the nature of the appellant's claim regarding service connection. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the appellant, through her testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate her claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. In March 2011, the Veteran was examined by a VA physician's assistant and an opinion was provided regarding the etiology of current low back complaints. An addendum was added in February 2012 reflecting that the entire claims file was reviewed. In June 2012, the previous report was signed by another examiner in agreement, and in a February 2013 addendum, a more detailed rationale was provided regarding the medical questions at issue. As explained below, the Board finds the medical opinion, in toto, to be adequate to address the current claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the appellant is required to fulfill VA's duty to assist her in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). 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 Circ. 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). Background The STRs reflect that the Veteran was treated for low back pain and sciatica in August 1982. The impression at that time was of low back pain secondary to pregnancy. In May 1983, she had low back pain for several months following the delivery of her baby. Her medical history included back injury three years earlier when she fell on her head while doing a gymnastics flip. The impression was of possible facet syndrome or mechanical low back pain. X-ray of the lumbar spine was normal in October 1983. An Army Reserve examination report dated in November 1988 referred to history of an unspecified back injury in 1983 when the Veteran fell off a trailer. There was no fracture and no pathology of the lumbar spine found. During her second period of service from 1989-1990, there was reference to motor vehicle accident (MVA) in October 1989 with complaints of cephalgia, cervical, and thoracic strain. An Army Reserve record dated in May 1991 states that the Veteran was recovering from back strain which required a back brace on and off. This was apparently secondary to an accident. In January 1993, she received a profile for cervical/thoracic strain. Post service private and VA records reflect neck and shoulder complaints due to a work related injury in 2001. The only significant references to the low back refer to complaints of low back pain associated with a mass of the lower back which was excised in 2004. Subsequently dated records include a VA lumbar spine X-ray in April 2007 which was normal. When examined by VA in November 2008, it was noted that the Veteran had mechanical low back pain, but examination at this time was normal. He opined that low back pain was less likely as not (less than 50/50 probability) caused by or a result of military service. For rationale, he noted that he was unable to find objective evidence of pathology to explain the Veteran's mechanical low back pain. He noted that she was 5 feet 6 inches tall and weighed over 220 pounds. Her pain was more likely related to obesity than from a strain sustained 26 years earlier while in the military. VA records dated through 2012 show persistent reports of low back pain. When examined by VA in March 2011, the diagnosis was lumbar strain with some sclerosis at the facet of L4-5. The examiner opined that the low back disability was less likely as not related to service. For rationale, he noted that the current condition would not occur from a fall 29 years prior. In a February 2012 addendum, the same examiner opined that the lumbar disability was less likely as not a result of service. The examiner noted that the claims file had been reviewed in its entirety. He noted that the veteran's STRs show that the Veteran's was feeling better in July 1983. It was also noted that medical literature supported that strain/sprains resolved in 6 weeks. A June 2012 addendum was added to the record. A second examiner signed the previous opinion in agreement. In a February 2013 addendum, the examiner who conducted the March 2011 exam as summarized above, added additional explanation for his opinion. It was noted that when the Veteran was seen in 2008, that examiner also felt that her current low back complaints were unrelated to service. He added that the Veteran's symptoms had been subjective with X-rays showing no significant lumbar changes. Also, clinical studies and peer review support that soft tissue injures (strains and sprains) resolved in 2-6 weeks. The Veteran's injury occurred 29 years earlier and improved. Again, her height and weight were noted, and it was stated that her general deconditioning contributed to her current symptoms. It was reiterated that her current low back complaints were less likely as not related to military service. Of record are statements from friends and relatives attesting to the difficulties that the Veteran has due to her physical ailments, to include her low back symptoms. Analysis As noted in statements of record, to include the Veteran's testimony at the personal hearings of record, it is her contention that her current low back condition had its onset during service. She points to her inservice treatment on numerous occasions for low back complaints. The Board acknowledges that the Veteran was seen during service for low back complaints. However, while chronic strain and pain were noted in 1983, X-ray was normal. Simply put, no chronic residuals of her inservice complaints were demonstrated by the medical evidence. After her initial discharge from service, she was again see for low back complaints on occasion, to include before, and after her second period of service which ended in 1990. (Specifically, in 1988, 1989, and 1991 as detailed above.) However, after her second period of service, many years passed before she was again seen for low back complaints. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period of which there is no clinical documentation of his low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); 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). Also of significance, when seen by VA personnel in 2008 and 2011 (with addendums as summarized earlier) for opinions regarding the etiology of her current complaints, it was determined that there was no nexus relationship. The 2011 examiner pointed out in a 2013 addendum that the medical literature and other medical personnel agreed that low back strains and sprains resolved in 6 weeks or so. Moreover, the Veteran's current stature (weight, height, and deconditioning) contributed to her complaints. The Board finds the VA examiner's opinion is the most probative evidence in this case. The entire claims file was reviewed, and the Veteran was examined prior to his making his determination. Moreover, his opinion is supported by the clinical evidence of record, to include X-rays of the lumbar spine during service in 1983 and after service in 2007, showing no residuals of inservice low back injury. With respect to the contentions expressed by the Veteran and friends and family, laypersons are generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); Bostain v. West, 11 Vet. App. 124, 127 (1998). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Unlike varicose veins under Barr, a dislocated shoulder under Jandreau, a disorder that was indicated in the medical record to exist years after service, or a finding that one disorder is related to another disorder, is not a condition capable of lay diagnosis. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Here, as discussed, the Board finds that the lay statements are outweighed by the negative STRs for chronic residuals of low back complaints and post service treatment records (indicating a disorder that began years after service). To the extent that she contends that the condition has existed since service, the Board simply does not find the Veteran to be credible. As noted above, when there is an approximate balance of positive and negative evidence about a claim, reasonable doubt should be resolved in the claimant's favor. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012). Here, there is no evidence that the Veteran's low back condition was incurred or aggravated during active service or that it is related to service. When the evidence against the claim is much greater than that in favor, the benefit-of-the-doubt doctrine is not applicable. Gilbert v. Derwinski, supra. ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs