Citation Nr: 1327159	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  09-49 080	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a lumbar spine disability.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel


INTRODUCTION

The Veteran served on active duty from February 1966 to February 1974.  

This matter is on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  Jurisdiction over the appeal is currently with the RO in Nashville, Tennessee.  


FINDING OF FACT

A low back disability, to include any disability of the lumbar spine, was not shown in service or for years thereafter, and is unrelated to active duty service.


CONCLUSION OF LAW

A lumbar spine disability was not incurred in or aggravated by service, and is not related to service.  38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice requirements apply to all five elements of a service-connection claim, including 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.  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board.  Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The Board finds that the duty to notify was satisfied by a letter sent to the Veteran in April 2009 that fully addressed all notice elements.  The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  

While the Board recognizes that the April 2009 letter was not sent prior to the initial rating decision, the issue was subsequently adjudicated by the RO, most recently in a November 2009 statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The issuance of fully compliant notice, followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect; Prickett v. Nicholson, 20 Vet. App. 370 (2006).  Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).

Next, VA has a duty to assist a veteran in the development of the claim.  That duty includes assisting him in the procurement of service medical records and other pertinent records, and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained the Veteran's service medical records, VA outpatient treatment records, and records submitted in conjunction with a claim to the Social Security Administration (SSA).  Further, the Veteran submitted treatment records from a private facility and his own statements in support of his claim.  While the RO specifically requested treatment records for the year 1977, from the VA Medical Center (VAMC) in Memphis, Tennessee, the VAMC responded in November 2009 that no such records were in its possession.  Nevertheless, the Board is satisfied that a diligent effort has been made to acquire such records.  

The Board recognizes the argument submitted by the Veteran's representative in Nay 2013 that the service medical records from 1972 to 1974 are not of record.  However, the fact that many other service medical records are of record indicates that the RO requested and received all treatment records that are available.  Moreover, the Veteran has not indicated any alternative location where those records may be located.  Therefore, a remand for an additional, non-specific search is unlikely to produce any meaningful results.  

With regard to VA examinations, the Board notes that one was obtained in July 2008, but was obtained under the mistaken belief that the issue on appeal was one for an increased rating.  Thus, that examination was limited to information regarding the current extent of his lumbar spine disability.  No opinion regarding the etiology of any lumbar disability was provided.  

When VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  However, a VA opinion was not necessary in order to determine whether service-connection was warranted.  Specifically, there was no competent evidence of a low back disability of any sort during active duty.  Moreover, the Veteran stated on a number of occasions that his low back symptoms began after a number of post-service incidents.  Therefore, there is no need to remand the claim, as there would have not been a basis for a VA examiner to provide an opinion.  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).

Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  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).

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Generally, the evidence 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.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

In some cases, inservice incurrence, and the relationship to service may be established through a demonstration of continuity of symptomatology for certain specific chronic disabilities.  38 C.F.R. § 3.303(b) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488 (1997).  

However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disabilities considered to be chronic under 38 C.F.R. § 3.309(a).  Injuries to the spinal discs are not chronic disabilities under 38 C.F.R. § 3.309(a), and may not be service connected under 38 C.F.R. § 3.303(b).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disability.  38 C.F.R. § 3.303(a) (2012).  

VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits.  38 U.S.C.A. § 1154(a) (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  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); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

In this case, the service medical records that are available do not show complaints of, treatment for, or a diagnosis related to a lumbar spine or low back disability of any sort while in service.  While the service medical records indicate disabilities of the foot and shoulder, those examinations, where it is likely that a low back disability would have been discussed, were silent of any lower back complaints.  

In fact, the post-service evidence does not indicate that the Veteran sought treatment for a low back disability until September 1977, where he stated that his back disability was related to two incidents, the first in July 1976 when he fell off a truck, and a second in February 1977, where he injured his back after lifting boxes.  At the time of this evaluation, X-rays of the lumbar spine were normal, and the resulting diagnosis was limited to a lumbar strain with "some hyperreaction."  However, the evidence also indicates that he underwent a lumbar discectomy in November 1977, which places the diagnosis of a lumbar strain at least partially in doubt. 

Nevertheless, even if the Board were to presume that there was lumbar spine disc pathology when he was evaluated in September 1977 with normal X-rays, it is nonetheless emphasized that this first indication of a lumbar spine disability was over two years after he left active duty.  Moreover, when the Veteran was evaluated in September 1977, and at subsequent evaluations in August and September 1978, he specifically attributed his low back symptoms to post-service incidents.  Therefore, the gap in treatment and his statements attributing the problem to post-service injury weigh against the Veteran's claim that his lumbar spine disability is related to service.

Service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints.  In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed lumbar spine disability to active duty, despite his contentions to the contrary.  None of the competent evidence of record indicates a relationship between the claimed disability and active duty, nor has any treating professional indicated such a relationship.

In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his lumbar spine disability to his active service.  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.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

However, the Veteran is not competent to provide testimony regarding the etiology of a lumbar spine disability.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Since spinal disc disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make.  Therefore, the uncorroborated statements regarding the claimed etiology of the Veteran's lumbar spine disability lack competency.

The Board recognizes that that the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible.  In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board is not required to accept an appellant's uncorroborated account of his active service experiences.  Wood v. Derwinski, 1 Vet. App. 190 (1991).

Specifically, the first occasion where the Veteran related his disability to active duty was not until he filed his claim for benefits in May 2008.  Moreover, those assertions are directly contradicted by statements he made to treating professionals in 1977 and 1978, where he attributed his back symptoms to post-service incidents.  Pond v. West, 12 Vet. App. 341 (1999) (in weighing credibility, factors for consideration include a showing of interest, self-interest, bias, inconsistent statements and inconsistency with other evidence of record).  Therefore, the Board finds that the Veteran's statements relating his back symptoms to active duty are not credible, and do not constitute probative evidence in support of his claim.

Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection and the appeal is denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for a lumbar spine disability is denied.  



____________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs