Citation Nr: 1328420 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-07 109A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1944 to November 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, and Montgomery, Alabama. Jurisdiction currently resides with the RO in Montgomery, Alabama. The Veteran testified before the undersigned at a September 2011 Video Conference hearing. His testimony was limited to the issue of entitlement to service connection for a low back disability. The hearing transcript is of record. During the course of this appeal, an additional issue became ripe for appellate review. A different Veterans Law Judge took testimony on the issue of entitlement to an initial compensable rating for tinea cruris (claimed as skin rash). That issue will be addressed in a separate decision. In October 2011, September 2012 and May 2013, the Board remanded the Veteran's low back claim for further development by the originating agency. The case is now ready for adjudication. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. 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). FINDING OF FACT A low back disability is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of the Veteran's discharge from service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA 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. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a November 2007 letter, sent prior to the initial February 2008 rating decision, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's available service records as well as post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. In this regard, the Board notes that the Veteran's service treatment records and most of his service personnel records are not available for review. In November 2008, the Veteran was notified that there was a fire at the National Archives and Records Administration in July 1973. The Veteran was requested to fill out and return the enclosed NA Form 13055. The Veteran returned this form in February 2009. Later in February 2009, VA issued a Formal Finding on the Unavailability of Service Records after an extensive search. Additionally, in accordance with the Board's October 2011 remand instructions, the AOJ attempted to obtain VA treatment records from the Chicago, Illinois, VA Medical Center dated from 1953 to 1995. However, such records were reported as unavailable. Therefore, the Board finds that VA has satisfied its duty to assist in obtaining all available records. Additionally, the Veteran was afforded VA examinations in October 2012 and June 2013 in order to adjudicate his service connection claim. In this regard, the Board notes that, while the October 2012 VA examination was deemed insufficient, as detailed below, the June 2013 VA included an opinion based on an interview with the Veteran, a review of the record, including the Veteran's conceded in-service injury, and a full examination. Moreover, the examiner offered clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As such, the Board finds that the opinion proffered by the June 2013 VA examiner is sufficient to decide the Veteran's claim. Therefore, as the Board remanded the Veteran's claim in May 2013 in order to afford him an adequate VA examination and such has been substantially complied with, no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran contends that he currently suffers from a low back disability that is the result of his time in active duty service. Specifically, he claims that in his capacity as a lineman for telephones and telegraphs in service, he attempted to put up a cross-arm of a telephone pole, which was very heavy and caused him to experience low back pain. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period 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. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Where service records have been lost or destroyed through no fault of the Veteran, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). It is noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran's available service records include his DD Form 214, which indicates that his military occupational specialty was a lineman for telephones and telegraphs, and a September 1946 separation examination, which notes that the Veteran had no musculoskeletal defects at service separation, and is likewise silent for any back injury or complaints. At the September 2011 Board hearing, the Veteran described an in-service back injury from putting up a cross arm for a telephone pole. He testified that, after X-rays were taken of his back, a doctor diagnosed him with a muscle sprain. He was administered a heating pad and given pills, and missed about a week of work. The Veteran stated that his low back pain has been continuous since service. He further alleged that he sought treatment at a Chicago VA medical center in the years following service; however, a request for such records produced a negative reply. The first documentation of medical treatment for the Veteran's low back is an August 2009 private MRI report, reflecting a diagnosis of severe lower lumbar spondylosis and moderate degenerative central spinal stenosis L2-L3. Other private medical records show complaints and treatment associated with the low back, but do not provide an etiology for the problem. In its September 2012 remand, the Board noted the Veteran's currently diagnosed back disability and that his military occupational specialty was a lineman for telephones and telegraphs. Based on this evidence, the Board found that the Veteran's described back injury was consistent with his in-service duties as a lineman, and concluded that for purposes of this claim, the Veteran injured his back while attempting to raise a telephone pole cross arm in service. In accordance with the remand, the Veteran was afforded a VA examination to determine the nature and etiology of his low back disability in October 2012. The physician's assistant (PA) who conducted the examination diagnosed the Veteran with degenerative arthritis and degenerative disc disease, and opined that the condition was less likely than not related to service. His rationale was that there were no military medical records available showing an injury in service, and that the only available evidence of an in- service injury was the subjective report made by the Veteran during his Board hearing. The PA also noted that the only objective evidence available came from the private doctors and the examination that he had just completed. In May 2013, the Board again remanded the claim on the basis that the October 2012 examination was insufficient, as the examiner failed to render an opinion which accepted the Board's finding that the Veteran's in-service back injury occurred. Accordingly, in June 2013, the Veteran underwent another VA examination. The examiner recounted the Veteran's in- service back injury, and described that, since then, the Veteran reported having intermittent episodes of back pain associated with activities of daily living. The examiner noted that "he specifically states that this would occur after lifting injuries after the service." He went on to note the Veteran's post-service occupational history, which included "very physical activities for at least 20 years." After conducting a physical examination of the Veteran, considering his lay statements and reviewing the claims file, the examiner opined that the Veteran's lumbar spine disability was less likely as not related to his service. The examiner reasoned that the symptoms the Veteran experienced in service were due to a back sprain, which is a muscle/ligament condition. This, he explained, "was based on the nature of the injury, the type of treatment he received and the residuals from the condition. This type of condition is self limited and is not the same as his current (lumbar) spine condition." The examiner further explained: His current (lumbar) spine condition is a form of arthritis, he has degeneration of the discs and the joints between the vertebral bodies and discs of the (lumbar) spine. This diagnosis was made more than 50 years after the service. The causes of the current (lumbar) spine condition is aging and also the cumulative damage over the years from the physical nature of his post service occupation. In closing, the examiner cited multiple medical articles concerning spinal stenosis in support of his findings. The Board has first considered whether service connection is warranted for a low back disability on a presumptive basis. However, the record fails to show that the Veteran manifested arthritis to a degree of 10 percent within the one year following his active duty service discharge in November 1946. In particular, there is nothing in the Veteran's separation examination to indicate a low back disability had its onset during service or shortly after service. Rather, the first medical evidence of a low back disability was over 60 years after the Veteran separated from service. Similarly, such evidence weighs against the Veteran's allegations of continuity of symptomatology of low back pain since service. As such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted for a back disorder. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Next, the Board considers whether the Veteran's low back disability is directly related to service. Here, the Board accords the June 2013 examination report significant probative value on the question of etiology, as it reflects an opinion based on a thorough review of the Veteran's medical records and provides a rationale which discusses the Veteran's assertions and pertinent medical history. See Nieves-Rodriguez v. Peak, 22 Vet. App. 295, 299-301 (2008) ('the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.') quoting Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ('[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.'). As such, the Board accepts the VA examiner's opinion as being highly probative with respect to the Veteran's claim. See Guerrieri v. Brown, 4 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board as adjudicator). There is no contrary competent evidence or opinion of record to refute the VA examiner's opinion, and neither the Veteran nor his representative has identified an existing opinion by a competent professional to support the claim. Furthermore, as for any direct assertions by the Veteran and/or his representative that there exists a medical relationship between the Veteran's low back disability and service, the Board finds that no such assertions provide persuasive evidence in support of the claim. The matter of the etiology of the disability here at issue is within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Hence, the lay assertions of medical nexus have no probative value. Based on the foregoing, the claim for service connection for a low back disability must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a low back disorder is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs