Citation Nr: 1327105 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 11-04 436 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from November 1955 to January 1958. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from an August 2008 rating decision by the RO. The Veteran testified at a hearing held at the RO before the undersigned Veteran's Law Judge at a March 2013. The Board remanded the case in May 2013 for additional development of the record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is shown to have suffered a sore back after being injured in an automobile accident in 1957 during service. 2. The currently demonstrated lumbar spine degenerative disc disease and osteoporosis are not shown to be due to an injury or other event or incident of his period of active service. 3. The Veteran is not found to have presented credible lay assertions that are sufficient to link the onset of a chronic low back condition to his period of active service. CONCLUSION OF LAW The Veteran's low back disability manifested by lumbar spine degenerative disc disease and osteoporosis is not due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding defects in the timing or content of the notice if such are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in December 2007, prior to the rating decision that explained how VA could assist the Veteran with the development of his claim. This letter also explained what the evidence needed to show in order to establish service connection for a claimed disability as well as how VA assigns ratings and effective dates for service connected disabilities. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including VA treatment records and a transcript of the Veteran's testimony at the March 2013 hearing. It appears that, during the course of this appeal, the Veteran's service treatment and other medical records may have been misplaced by VA. In a report prepared in conjunction with a March 2008 examination, the VA examiner referred to records that pertained to his period of active service and other medical records referable to treatment received by the Veteran many years after service. However, none of these records is present in the claims folder at this time. In its May 2013 remand, the Board directed the RO to attempt to locate the Veteran's records and associate them with the claims file. A search was made for the Veteran's service treatment records at the RO, but they could not be located. In June 2013, the RO also sent the Veteran a letter informing him that it was unable to obtain his records and requesting that he send copies of these records to VA if they were in his possession. The Veteran did not respond to this letter. A formal finding that the service treatment records were unavailable was made in July 2013. While the Veteran's records are not available for review at this time, the Board finds that further efforts in this area would be futile. The Board acknowledges its heightened obligation to consider carefully the benefit of the doubt rule in cases where the Veteran's service treatment records are unavailable through no fault of the Veteran, as here, when the records appear to have been lost by VA. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Additionally, the Veteran brought other medical evidence to the March 2008 VA examination, and these were reviewed and thoroughly addressed by the examiner in providing his opinion. However, copies of these documents are not present in the claims file. Additionally, at his hearing, he identified other medical and chiropractic treatment for his low back, but no private treatment records are in the claims file. In May 2013, the Board remanded the case with instructions that the RO attempt to obtain these records. In May 2013 the RO requested that the Veteran complete a release to enable it to obtain records from the primary care doctor that the Veteran identified at his hearing. The Veteran did not provide the requested release or submit copies of the private treatment records himself. Lacking an appropriate release, the RO was unable to obtain copies of any of the Veteran's private treatment records. Thus, given the lack of any response by the Veteran, the Board finds that additional attempts in this area would be unavailing. The Veteran was afforded a VA examination of his spine in March 2008. The examiner was able to review the service treatment records and other medical evidence at that examination, as well as to examine the Veteran. The Board finds that the examiner provided a reasoned opinion taking into account all of the relevant facts and was adequate for rating purposes. While the records that provide the factual basis for his opinion are not in the claim file, there is no way for VA to obtain these records insofar as the service treatment records were lost and the Veteran did not provide copies of any records as requested by VA. Moreover, the Board finds no basis to doubt the VA examiner's description of the information contained in the records. The May 2013 remand also requested that an addendum opinion or additional examination be conducted if warranted based on any newly received evidence. However, no additional evidence was received after the May 2013 remand, so this measure was unnecessary. The Board finds that all necessary notice and development actions were taken in this case. Additionally, the Board finds that VA substantially complied with the instructions which were set forth in the May 2013 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases which are listed in 38 C.F.R. § 3.309, including degenerative joint disease, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In most cases, establishing a nexus to service requires medical evidence. However, in the case of the chronic diseases set forth in 38 C.F.R. § 3.309, the requisite nexus may also be provided by evidence of continuity of symptoms. Walker v. Shinseki, 708 F.3d 1331 (2013). While degenerative joint disease is among these listed chronic diseases, degenerative disk disease, which is a different disorder although it may occur at the same time, is not. In this case, the Veteran contends that his current low back disorder is due to an injury sustained during his active service. At his May 2013 hearing, the Veteran testified that he hurt his back in a motor vehicle accident in service when his car turned over and that, after the accident, he was in the hospital for two weeks and had a very sore low back. He reported having had no other injuries at that time and being told that he was going to be medically discharged due to his back injury, but going back to work, even though he continued to have low back pain, used over the counter pain relievers, and took care when lifting. He reported that, after staying in service for about another year and a half, he went to chiropractors for treatment of his back pain after service. Currently, he was taking pain medication that was prescribed by his private primary care physician. The Veteran was treated by VA for a short period of time in 2006 and 2007 when he complained of low back pain due to a service injury, but no diagnosis was given. The Veteran was afforded a VA examination of his spine in March 2008. As previously noted, the examiner apparently reviewed service treatment records and a summary of records pertaining to work-related injury after service. (Copies of these records are not now in the claims file.) The VA examiner noted at that time that a review of the service treatment records showed that the Veteran was in a motor vehicle accident in 1957, when he apparently fell out of his car on his head, neck and upper back. The VA examiner also referred to the Veteran hitting his pelvis, but added that the documentation was not very good. The VA examiner did note that X-ray studies of the skull and pelvis were negative. The VA examiner noted that the Veteran provided a summary of records showing work-related injuries. The VA examiner noted that the Veteran had work-related back injuries in 1980 and received benefits for these injuries. The VA examiner noted that there appeared to have been three different injuries and that the Veteran was found to have osteoporosis that had caused about five thoracic spine vertebral body fractures. The VA examiner added that it appeared that some of the fractures were caused by the work-related injuries. The summary was noted to have been prepared by a private physician. The documents referable to X-ray studies performed in 2005 were summarized as showing age-acquired degenerative disk disease, primarily of L5, S1 as well as osteoporosis. At the time of the VA examination, the Veteran was noted to have reported having a constant soreness in his back that was helped by medication. His range of motion of the back was limited, and he needed to use his arms to raise himself out of a chair. The X-ray studies were noted to show facet hypertrophy and sclerosis. There were small endplate osteophytes, and the vertebral heights were maintained. The examiner diagnosed age-acquired degenerative disk disease of the lumbar spine and osteoporosis. The VA examiner noted that the Veteran had reported seeing chiropractors for back pain after service, but there was no documentation of this. The VA examiner added that the summary provided by the private physician showed work-related injuries in the 1980s that resulted primarily in collapsed thoracic spine vertebral bodies as was typical for osteoporosis. The X-ray summary in 2005 was noted to show osteoporosis as well as lumbosacral L5, S1 degenerative disk disease. The VA examiner noted that there was difficulty in relating the Veteran's back problems to service. The first factor was that he had documented work-related injuries starting in the 1980s. The second factor was that there was no documentation of any treatment between service and these work-related injuries. The third factor was noted to be that, according to the service treatment records, the main injuries in the car accident involved his head and pelvis. He had pelvic and head X-ray studies at that time, but no studies of the spine. Moreover, these X-ray studies were noted to be normal. The VA examiner added that the case would be more in the Veteran's favor if he could document having been seen by a chiropractor or other medical personnel prior to the work-related injuries. Without that information, the VA examiner noted there was no evidence that he had a chronic problem due to service or earlier than the significant work-related injuries in the 1980s. Most significantly, the VA examiner identified the Veteran's current back issues as being related to aging and the work-related injuries following his period of active service. The evidence of record shows that the Veteran currently suffers from low back degenerative disk disease and osteoporosis. To the extent that the service treatment records as discussed by the VA examiner showing that the Veteran was involved in some form of automobile accident in 1957 and sustained injuries tend to substantiate the Veteran's testimony, the VA examiner did not find that the Veteran had specific low back condition at that time. The main areas of concern for treatment at that time were identified to be the Veteran's head and pelvis, and they were found to be normal on X-ray studies. The low back was not X-rayed at that time, suggesting that it was not significantly involved at the time of the accident. This description of the evaluation and treatment that the Veteran received after the accident is not consistent with his testimony that he had a chronic low back disorder after being injured in the car accident. The Board notes that RO personnel apparently reviewed service treatment records and noted a complaint of a sore back after the accident. However, the VA examiner's description of the treatment records suggested that this was related to the upper back since the Veteran fell on his upper back. In any event, there was no indication in the examiner's review of the treatment records or the reference by the RO that suggested this was related to a chronic disorder. While the Veteran also testified that he had back pain and received regular chiropractic treatment after service, this testimony apparently was not supported the documentation in the other medical records, as described by the VA examiner. These documents referenced back problems beginning with work-related injury in the 1980s, with no mention of earlier back problems or injuries. If the Veteran had had earlier back problems, this was not documented in any medical records associated with those claims. Furthermore, the summary that was provided to the VA examiner indicated that the Veteran prevailed on his work-related compensation claims and that, to this extent, his injuries were attributable to events connected with work performed many years after service, as opposed to an injury during service. It is significant that the 2005 X-ray study referenced in the materials as being brought to the examination by the Veteran indicated that he had disk degeneration that was described as age related and was not associated with an old injury such as described by the Veteran as happening during service. Although copies unfortunately are not in the claims file, the VA examiner's description of the records that he reviewed is probative, as there would be no reason for the examiner to misrepresent the medical information in these records. Moreover, the Board feels that a presumption of regularity applies to the actions of the examiner in this case in that a physician would be professionally obligated to accurately summarize documentation provided for his medical evaluation. See, e.g., Hilkert v. West, 12 Vet. App. 145, 151 (1999). While the Veteran is competent to report that he experienced back pain that was treated after service, the lay statements to this extent were addressed and appropriately considered by the VA examiner in reviewing the entire record and preparing the medical opinion in this case. Thus, on this record, the Board finds that the Veteran's testimony of having had low back pain and receiving treatment after service in and of itself is of limited probative value when weighed in the context of the medical opinion provided by the VA examiner. Most importantly, the VA examiner opined that the Veteran's current low back problems were related to aging and work-related injuries that happened many years after service. This medical finding is particularly probative because the VA examiner was able to address documented history of intercurrent work-related back injuries after service in light of the Veteran's lay assertions of being injured in service. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Service connection for a low back disorder is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs