Citation Nr: 1325599 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 10-17 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney at Law ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active service from April 1963 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision from a regional office (RO) of the Department of Veterans Affairs (VA). This matter was previously remanded by the Board in September 2012 for additional development. FINDING OF FACT A back disability was not manifested during service, and a current chronic back disability is not otherwise causally related to service, to include any injury during service. CONCLUSION OF LAW Low back disability was not incurred in nor aggravated by active military service, nor may it be presumed to have been incurred or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record shows that in a January 2010 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in January 2010, which was prior to the February 2010 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. The January 2010 letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. Service treatment records (STRs) and VA medical records are associated with the file. Additionally, the Veteran was afforded a VA examination in January 2013. Under the circumstances, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Additionally, for Veterans who have served 90 days or more of active service during a war period on or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). The Veteran contends that he is entitled to service connection for a back disability. He asserts that he developed a back disability from his active duty service which required him to do a lot of heavy lifting as part of the 3rd Armored Division and the 175th Artillery Unit. Additionally, he states that he attended airborne jump school for four weeks where he was required to jump from towers. See January 2010 claim. Service treatment records are negative for any complaints, treatment, or diagnoses related to the back. Notably, on February 1966 separation examination and associated report of medical examination, no back complaints were noted and the spine was normal on clinical evaluation. The Veteran denied swollen or painful joints. Service personnel records reveal the Veteran entered basic airborne training on September 13, 1963. On September 18, 1963, it was noted that the Veteran was permanently disqualified from airborne training; "no start." Following this, the Veteran was stationed in an artillery unit for the remainder of his time in service. His service specialty was a truck vehicle mechanic. Postservice treatment records show initial complaints of back pain in 2002. An October 2002 treatment record noted that the Veteran is a salesperson who has been doing a considerable amount of driving for the last eight years, and has noticed over a period of time that he has developed some problems with his back. In January 2003, the Veteran reported his low back pain began some time ago and that he doesn't recall any activity that set off the back pain. Lumbar spine X-rays reviewed at that time revealed degenerative changes. In December 2003, the Veteran was seen complaining of problems with his neck. It was noted that he "took a bad fall on his back but since then the back has been fine..." A June 2009 record noted "arthritis w/ prolonged sitting, chronic low back pain." The Veteran was scheduled for back surgery in June 2010 and at that time, it was noted that his initial back pain started over a year ago and there was no recent injury or trauma. A June 2010 physical therapy record showed a diagnosis of low back pain. A soldier who served with the Veteran, D.S., submitted a statement in December 2012. He stated that they "were subject to heavy lifting throughout our entire time overseas and specifically while assigned to the 2nd Battalion 5th Artillery, C Battery. The heavy lifting consisted of, but not limited to: unloading 175 MM artillery shells and gun powder canisters for the 175 MM Gun from 2 1/2 ton military truck beds, pushing or pulling stuck artillery equipment or supportive vehicles, etc." On January 2013 VA examination of the thoracolumbar spine, status post L3 and L4 decompressive laminectomy with medial facetectomy and foramintomy, in addition to lumbar spondylosis was diagnosed. X-rays revealed arthritis. The examiner opined that it was less likely than not that the Veteran's current back disability is related to his active duty service. The examiner noted that the Veteran's service treatment records were silent for any reported injury or traumatic event to the spine during service. He also noted that the first reports of back pain were in 2002. The examiner stated that the Veteran is age 58, which is in the "normal" timeframe for acquired degenerative spinal stenosis to occur. It is not in dispute that the Veteran has a back disability. Arthritis and lumbar spondylosis have been diagnosed, including by VA. However, no back disability is noted in the Veteran's STRs, to include on service separation examination. Additionally, back complaints were not noted until 2002, over 40 years after discharge from service. Accordingly, the Board finds that a preponderance of the evidence does not support finding the Veteran's back disability manifest in service or within the year following service. What remains for consideration is whether the Veteran's current back disability is otherwise related to his service. An opinion as to causation was provided in January 2013 by a VA examiner who concluded that the Veteran's back disability was less likely than not caused by service. The examiner noted a review of the Veteran's service records and postservice treatment records, in addition to a history provided by the Veteran, including a report of participating in jump school for four months and that he was subjected to heavy lifting. Considering this information, the examiner still concluded that the Veteran's current back disability was more likely age-related and that his complaints of back pain starting in 2002 are consistent with the normal timeframe for acquired degenerative spinal stenosis to occur. Here, the VA examiner, after considering all the evidence of record including the Veteran's contentions, provided an opinion supported by a detailed rationale and with citation to the factual record. The Board finds no reason to question this opinion, and as there is no opinion to the contrary, the Board finds this opinion probative and persuasive evidence. The Board acknowledges the Veteran's statements and the statement of his fellow soldier, D.S. However, to the extent that they may be asserting a continuity of back symptoms since service to establish a link to service, the Board finds such statement not credible in light of the overall record. The Veteran did not voice any back complaints during service although records show that he did seek medical attention for other physical complaints. He did not report any back complaints at the time of discharge, although an examination was conducted and a medical history furnished by the Veteran. There is otherwise no supporting evidence of back complaints for many years after service. In fact, a 2010 VA medical record includes history to the effect that the initial back pain started "over a years ago." The Veteran did not relate this to his service at that time. Another VA medical record dated in 2002 appears to document the first post-service treatment for back complaints; at that time the Veteran indicated that he had developed problems with his back over a period of time, but he did not mention anything about it starting during service. Any assertions of a continuity of back symptoms since service are therefore inconsistent with the facts. It is also worthy of note that the Veteran did not include his back when he filed for VA benefits for other disorders in 2002. This suggests that as of that time the Veteran himself did not believe he had any back disorder related to service as it would be reasonable to expect that he would have included such in his claim at that time. In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the claim of service connection for a back disability. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal in this matter must be denied. ORDER Service connection for a back disability is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs