Citation Nr: 1327403 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 11-00 260A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Tennessee Department of Veterans Affairs ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1978 to April 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The Board notes that VA treatment records dated from December 2010 to April 2012 have been associated with the claims file via Virtual VA. These records appear to have not been considered by the RO in connection with the Veteran's claim, as the January 2013 Supplemental Statement of the Case does not include the records in the list of evidence it considered. Additionally, the record does not include any statement from the Veteran or his representative waiving initial Agency of Original Jurisdiction (AOJ) review of this submission. Nevertheless, the Board finds a waiver of this nature is not necessary, since the additional evidence is not pertinent to the issue on appeal, specifically whether the Veteran currently has a diagnosed back disorder that is related to service. 38 C.F.R. § 20.1304(c) (2012). Therefore, remand of the present matter to permit the AOJ to consider the newly submitted VA treatment records, as an initial matter, is unnecessary. FINDING OF FACT The Veteran does not have a current low back disability that is related to an injury or disease in service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). 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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). In the instant case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2009. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letter also informed the Veteran of how ratings and effective dates are assigned. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). With regard to the duty to assist the Veteran in procuring pertinent treatment records, the RO's development indicates that the Veteran's service treatment records are unavailable. VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board concludes, however, that the heightened duty to assist has been met. Exhaustive attempts were made to obtain the Veteran's complete service treatment records. The only service treatment records obtained and associated with the Veteran's claims file consist of those from the Veteran's inactive service, dated July to August 1983 and July 1984. The RO made a formal finding, in June 2012, that the complete service treatment records could not be obtained and outlined the efforts made to attempt to obtain them. The Veteran was notified in a July 2012 letter that his service treatment records, specifically those for the periods of April 1978 to April 1981, could not be located. He was informed of the efforts that were made to obtain the records, was asked to provide any service treatment records in his possession to VA, and was informed that a decision could be made within 10 days, therefore, he should send any information or evidence as soon as he could. See 38 C.F.R. § 3.159(e) (2012). The Veteran was also informed of alternate sources of evidence that could substitute for the service treatment records. See Dixon v. Derwinski, 3 Vet. App. 261 (1992). While the July 2012 letter was sent to the Veteran with respect to another pending claim, the Board finds that a reasonable person would be expected to understand that the contents also apply with respect to the pending claim. With regard to the claim on appeal, the Board observes that VA treatment records and inactive treatment records have been obtained. There is no indication that there are any available records that are outstanding. The Veteran has not been afforded a VA examination with respect to his claim for service connection for a low back disability. In disability compensation claims, VA must provide a VA medical examination prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifested during an applicable presumption period for which the veteran qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence of record for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the third factor above, the Court of Appeals for Veterans' Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. McLendon, 20 Vet. App. at 83. As discussed in more detail below, there is sufficient competent medical evidence of record for the VA to make a decision on the present claim. Accordingly, a VA examination addressing the Veteran's current service connection claim for a low back disability is not warranted. The Board finds that VA satisfied its duties to notify and assist the Veteran, that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 CF.R. §3.159, and that all due process has been provided. The Board will proceed to a decision. II. Merits of the Claim The Veteran contends that his current low back condition is related to his active service. For this reason, he asserts that he is entitled to service connection for a low back disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish entitlement to service-connected compensation benefits, 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). The Veteran is claiming entitlement to service connection for a back condition, which he contends is due to his military service. Service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). With respect to the first element required for service connection, the existence of a present disability, the competent and probative evidence of record shows that the Veteran is not currently diagnosed with a back condition. The Veteran states that he has been treated for a back condition at the VA medical center in Nashville, Tennessee, and additionally specified in his July 2010 Notice of Disagreement that "there are medical records at the VA in Clarksville showing a back condition." The claims file contains May 2003 VA treatment records showing that the Veteran sought treatment for left thumb pain and drug addiction. In the course of a medical examination, the physician noted that the Veteran had forward flexion of the back and spine of 90 degrees without pain. The Clarksville VA treatment records contain no other complaints of back pain or treatment. The Veteran's claims file also contains VA treatment records from the Nashville VA medical center dating from June 2008. Though the treatment records show the Veteran has received diagnoses and treatment for a number of medical conditions, he has never been diagnosed with any back or spine condition. The Board recognizes that the Veteran was assessed as having low back pain and mechanical low back pain in VA treatment records dated in May 2010 and July 2010. Indeed, the Board wishes to make clear that it has no reason to doubt that the Veteran experiences pain in his back. However, pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The Veteran asserts in his July 2010 NOD and January 2011 statement that he suffers from a "back condition" for which he seeks entitlement to service connection. The Court of Appeals for the Federal Circuit has provided guidance for determining what kind of evidence is competent evidence, stating as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person 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, 1377 (Fed. Cir. 2007). However, though lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to identify a condition where the diagnosis of such condition is outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at n. 4 (lay persons are not competent to diagnose cancer). Here, while the Veteran is entirely competent to report that he experiences pain, he is not competent to associate his back pain to a back disability. Whether his symptoms are manifestations of an identifiable underlying malady or condition are determinations for a medical professional. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a diagnosis of a back condition to be of no probative value. See 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a current back disability. Moreover, even if the Veteran were found competent to diagnose a back disorder, his statements are outweighed by the more probative medical evidence which shows that he does not have a diagnosed back disorder. The medical evidence, which indicates that the Veteran was examined following complaints of back pain, indicates only that he has low back pain. No diagnosed or identifiable underlying condition was identified. As the competent medical evidence of record lacks any evidence that the Veteran has a back disorder, the preponderance of the medical and lay evidence of record is against the Veteran's claim for service connection for a back condition. 38 C.F.R. § 3.655(b). Accordingly, the benefit sought on appeal is denied. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs