Citation Nr: 1328432	
Decision Date: 09/05/13    Archive Date: 09/16/13

DOCKET NO.  09-34 102	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a lumbar spine 
disorder, to include degenerative joint disease, claimed as 
low back pain.

2.  Entitlement to service connection for radiculitis, 
claimed as spasms and pain down the left side of the body.


ATTORNEY FOR THE BOARD

Kristy L. Zadora, Counsel


INTRODUCTION

The Veteran had active duty service from July 1981 to July 
1984.

These matters come before the Board of Veterans' Appeals 
(Board) on appeal from a February 2009 rating decision of 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Petersburg, Florida which, in pertinent part, denied 
the Veteran's claims for service connection for low back 
pain and spasms as well as pain down the left side of the 
body.

In June 2011 and April 2013, the Board remanded the instant 
matters, as well as a claim for service connection for left 
foot frostbite, to the Appeals Management Center (AMC) for 
additional development.

In June 2013, the RO granted the Veteran's claim for service 
connection for left foot frostbite and assigned an initial 
rating.  As the June 2013 decision represents a full grant 
of the benefits sought with respect to this issue, it is no 
longer before the Board for consideration.  See Grantham v. 
Brown, 114 F.3d 1156 (Fed. Cir. 1977).

A review of the Virtual VA claims processing system reveals 
VA treatment records dated through February 2013; such 
records were considered by the AMC in the June 2013 
supplemental statement of the case (SSOC).

The issue of entitlement to service connection for 
radiculitis is addressed in the REMAND portion of the 
decision below and is REMANDED to the RO via the AMC, in 
Washington, D.C.


FINDING OF FACT

The competent evidence shows that the Veteran's current 
lumbar spine disability, to include degenerative joint 
disease, is not related to active service or any incident of 
service or that arthritis manifested to a compensable degree 
within one year of service discharge.


CONCLUSION OF LAW

A lumbar spine disorder, to include degenerative joint 
disease, was not incurred in or aggravated by the Veteran's 
active duty service.  38 U.S.C.A. §§ 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 FINDING AND CONCLUSION

I.  Duties to Notify and Assist

With respect to the Veteran's claim decided herein, VA has 
met all statutory and regulatory notice and duty to assist 
provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 
3.159, 3.326 (2012). 
 
Under the VCAA, when VA receives a complete or substantially 
complete application for benefits, it is required to notify 
the claimant and his representative, if any, of any 
information and medical or lay evidence that is necessary to 
substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 
C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 
(2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 
(2004) (Pelegrini II), the Court of Appeals for Veterans 
Claims (Court) held that VA 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 Court held in Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006), that the VA 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) the veteran's status; (2) the existence of a disability; 
(3) a connection between the veteran's service and the 
disability; (4) the degree of disability; and (5) the 
effective date of the disability.  The Court held that, upon 
receipt of an application for a service connection claim, 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to 
review the information and the evidence presented with the 
claim, and to provide the veteran with notice of what 
information and evidence not previously provided, if any, 
will assist in substantiating or is necessary to 
substantiate the elements of the claim as reasonably 
contemplated by the application.   Id. at 486. This notice 
must also inform the veteran that a disability rating and an 
effective date for the award of benefits will be assigned if 
service connection is granted.  Id. 

With respect to the claim for service connection, the 
Veteran was provided a letter in December 2007 which fully 
satisfied the duty to notify provisions.  See 38 U.S.C.A. § 
5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  This 
letter also provided appropriate notice under 
Dingess/Hartman. 

All the law requires is that the duty to notify is satisfied 
and that claimants are given the opportunity to submit 
information and evidence in support of their claims.  Once 
this has been accomplished, all due process concerns have 
been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 
C.F.R. § 20.1102 (harmless error).  In view of the 
foregoing, the Board finds that the Veteran was notified and 
aware of the evidence needed to substantiate his claim, as 
well as the avenues through which he might obtain such 
evidence, and of the allocation of responsibilities between 
himself and VA in obtaining such evidence.  Accordingly, 
there is no further duty to notify. 
 
The Board also concludes VA's duty to assist has been 
satisfied.  The evidence of record includes the service 
treatment records, VA outpatient treatment records, various 
private treatment records, Social Security Administration 
(SSA) records and the VA examination reports.  The Board 
notes that although the Veteran was asked by VA to provide 
information regarding his previous Worker's Compensation 
claim, he has not done so.  In order for VA to process 
claims, individuals applying for VA benefits have a 
responsibility to cooperate with the agency in the gathering 
of the evidence necessary to establish allowance of 
benefits.   See Morris v. Derwinski, 1 Vet. App. 260, 264 
(1991).   Moreover, VA's duty to assist is not always a one-
way street.  See Wood v. Derwinski, 1 Vet. App. 190, 193 
(1991); see Swann v. Brown, 5 Vet. App. 229, 233 (1993).  
The Veteran has provided very little to VA in the way of 
information about his claimed in-service injuries.  As 
previously indicated, the RO requested that the Veteran 
provide information regarding his previous Worker's 
Compensation claim to allow VA to seek such records in an 
April 2013 letter.  Under these circumstances, the Board 
finds that, with respect to this request, no further RO 
action in this regard is required.

Additionally, the Veteran was afforded a VA examination in 
order to adjudicate his claim for service connection.  In 
this regard, the Board notes that the May 2013 VA examiner 
offered an etiological opinion as to the claimed disorder 
and based his conclusions on the existing medical evidence 
and the other evidence of record.  Moreover, such opinion 
offered clear conclusions with supporting data as well as 
reasoned medical explanations 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 
VA examiner is sufficient to assist VA in deciding the 
instant claim for service connection. 

Additionally, the Board finds there has been substantial 
compliance with its June 2011 and April 2013 remand 
directives.  
 
The Board notes that the Court has recently noted that "only 
substantial compliance with the terms of the Board's 
engagement letter would be required, not strict compliance."  
See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also 
Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding 
that there was no Stegall (Stegall v. West, 11 Vet. App. 
268) violation when the examiner made the ultimate 
determination required by the Board's remand.)  The record 
indicates that the AMC scheduled the Veteran for a VA 
examination, which he attended, and an April 2013 letter 
requested that the Veteran complete a VA Form 21-4142 for 
each private health care provider who had treated him for 
his claimed disability and to provide information his 
Worker's Compensation claim.  Based on the foregoing, the 
Board finds that the AMC substantially complied with the 
mandates of its remands.  See Stegall, supra, (finding that 
a remand by the Board confers on the appellant the right to 
compliance with its remand orders).  Therefore, in light of 
the foregoing, the Board will proceed to review and decide 
the claim. 

As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably 
affects the outcome of this case, the Board finds that any 
such failure is harmless.  See Newhouse v. Nicholson, 497 
F.3d 1298 (Fed. Cir. 2007).  The Veteran has submitted 
argument and evidence in support of the appeal.  Based on 
the foregoing, the Board finds that the Veteran has had a 
meaningful opportunity to participate in the adjudication of 
his claim such that the essential fairness of the 
adjudication is not affected.

  II. Service Connection

A. Applicable Laws and Regulations

Service connection will be granted if the evidence 
demonstrates that a current disability resulted from an 
injury or disease incurred in or aggravated by active 
military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).

Establishing service connection generally requires (1) 
medical evidence of a current disability; (2) medical or, in 
certain circumstances, lay evidence of in-service incurrence 
or aggravation of a disease or injury; and (3) medical 
evidence of a nexus between the claimed in-service disease 
or injury and the present disability. Shedden v. Principi, 
381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 
Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 
(Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. 
App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of 
establishing the second and third Shedden/Caluza element is 
through a demonstration of continuity of symptomatology.  
Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. 
Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. 
West, 12 Vet. App. 296, 302 (1999).  In a recent decision, 
the United States Court of Appeals for the Federal Circuit 
(the Federal Circuit) determined that such an alternative 
method can be used only in cases involving those conditions 
explicitly recognized as chronic in 38 C.F.R. § 3.309(a).  
Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The 
Board notes that arthritis is listed as a chronic disease 
under 38 C.F.R. §§ 3.307(a), 3.309(a).

In relevant part, 38 U.S.C.A. § 1154(a) requires that VA 
give "due consideration" to "all pertinent medical and lay 
evidence" in evaluating a claim for disability or death 
benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 
2009).

The Federal Circuit has held that "[l]ay 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 profession."  Jandreau v. Nicholson, 492 F.3d 
1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 
451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot 
determine that lay evidence lacks credibility merely because 
it is unaccompanied by contemporaneous medical evidence.")

Once evidence is determined to be competent, the Board must 
determine whether such evidence is also credible.  See Layno 
v. Brown, 6 Vet. App. 465 (1994) (distinguishing between 
competency ("a legal concept determining whether testimony 
may be heard and considered") and credibility ("a factual 
determination going to the probative value of the evidence 
to be made after the evidence has been admitted").

When there is an approximate balance of positive and 
negative evidence regarding any issue material to the 
determination of a matter, the VA shall give the benefit of 
the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. 
§ 3.102.

B.  Lumbar Spine Disorder

The Veteran generally asserts that his current lumbar spine 
disorder is the result of an injury he sustained while 
serving in Germany, but has not provided any further 
information regarding this injury.

Service treatment records were negative for complaints, 
treatments or diagnoses related to any lumbar spine 
disorder.  The Veteran did not undergo a separation 
examination; in a July 1984 statement indicated that he was 
unable to receive such a physical examination but provided 
no further explanation.

Post-service clinical records document the Veteran's 
complaints of left-sided low back pain for the past six 
months in a June 1999 private treatment note.  A June 1999 
private Magnetic Resonance Imaging (MRI) scan revealed mild 
neural foraminal stenosis at L5-S1 and a very small central 
herniated nucleus pulpous (HNP) at L5-S1 while a X-ray 
revealed mild diminution of disc height at L5-S1.  A June 
2005 lumbar X-ray revealed mild degenerative changes and 
disc space narrowing at L4-5 and L5-S1.

In a May 2013 VA examination report, the Veteran reported 
that he had injured his back in 2000 while at work.  
Following a physical examination and a review of the 
Veteran's claims file, a diagnosis of lumbosacral 
degenerative joint disease was made.  The examiner opined 
that the Veteran's claimed lumbar spine disorder was less 
likely than not (less than 50 percent probability) incurred 
in or caused by the claimed in-service injury, event or 
illness as there was no documentation of back pain during 
service and the earliest notation of lumbar disc disease 
found by the examiner to be documented in the claims file 
was in 2002.  The examiner also noted that the Veteran had 
reported injuring his back at his post-service civilian 
employment in approximately 2000.

With respect to post-service medical records, the first 
evidence of a lumbar spine disorder was in a June 1999 
private treatment note.  As noted above, there is nothing in 
the Veteran's service records to indicate that a lumbar 
spine disorder had its onset during service or shortly after 
service.  Rather, the first clinical evidence of such a 
lumbar spine disorder was in 1999, approximately 15 years 
after the Veteran separated from service.  The Board points 
out that the passage of years between discharge from active 
service and the medical documentation of a claimed 
disability is a factor that tends to weigh against a claim 
for service connection.  See Maxson v. Gober, 230 F.3d 1330, 
1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 
(1992). 

Moreover, the probative evidence of record fails to 
demonstrate that the Veteran's lumbar spine disorder, to 
include degenerative joint disease, is related to his 
service.  In this regard, the Board places great probative 
weight on the VA examiner's opinion that the Veteran's 
lumbar spine disorder was less likely than not related to 
his service as there was no evidence of back pain during 
service, that the Veteran himself alleged injuring his back 
in approximately 2000 at his civilian employment and the 
earliest post-service clinical evidence of a lumbar spine 
disorder was after this work injury.  This examiner's 
opinion had clear conclusions and supporting data, as well 
as a reasoned medical explanation connecting the two.  See 
Nieves-Rodriguez, supra; Stefl, supra.  The Board notes that 
the VA examiner identified the date of the first post-
service clinical evidence of a disorder as occurring in 2002 
and failed to mention the June 1999 private treatment note 
detailing a lumbar spine disorder.  However, such an 
omission is not material to the opinion as the first 
clinical evidence of such a lumbar spine disorder occurred 
following the Veteran's post-service work-related back 
injury and more than one year after separation from service.  
Moreover, such does not alter the Veteran's contention that 
he injured his back at his post-service civilian employment 
as opposed to during service.  Accordingly, as the probative 
evidence of records demonstrates that the current lumbar 
spine disorder are not related to service, service 
connection is not warranted.

The Board notes that the Veteran has, on occasion, alleged a 
continuity of symptomology with regards to his lumbar spine 
disorder, which he is competent to assert.  However, he has 
not been consistent in his assertions regarding the onset 
and presence of such a disorder.  In a June 1999 private 
treatment note, the Veteran reported low back pain for the 
past six months.  Such statements were made during the 
course of treatment, years prior to the filing of the 
instant claim, and are highly probative.  See Rucker v. 
Brown, 10 Vet. App. 67, 73 (1997) (observing that statements 
made to physicians for purposes of diagnosis and treatment 
are exceptionally trustworthy because the declarant has a 
strong motive to tell the truth in order to receive proper 
care). 

In addition, the Board notes that the Veteran indicated in 
his July 2007 SSA application that he injured his back in 
June 1999.  In December 2006, the Veteran reported that he 
was lifting heavy objects while employed as refuse collector 
and that he suddenly began to experience disabling back 
pain.  A November 2007 statement from the Veteran's treating 
VA orthopedic spine surgeon reflected the Veteran's reports 
that he had injured his back in 1999 while working at his 
civilian employment.  The Board, therefore, accords the 
Veteran's statements regarding the onset of his lumbar 
symptoms prior to the filing of the instant claim and in 
conjunction with his SSA claim more probative weight than 
any such report of symptoms made in connection with, or, 
presumed by the filing of, the Veteran's August 2007 claim 
for service connection.  See Cartwright v. Derwinski, 2 Vet. 
App. 24, 25 (1991) (a pecuniary interest may affect the 
credibility of a claimant's testimony).  Moreover, in light 
of the contradictory statements regarding the onset of his 
current lumbar disorder or symptoms related to this 
disorder, any current assertions as to experiencing lumbar 
symptoms continuously since service, advanced in furtherance 
of the appeal, are deemed not credible. 

Furthermore, as for any direct assertions by the Veteran 
that there exists a medical relationship between his lumbar 
spine disorder 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 one within the province of trained professionals.  
See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).  As the 
Veteran is not 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.  

Moreover, a lumbar spine disorder, to include degenerative 
joint disease, may not be presumed to have been incurred 
during service here as it did not manifest to a compensable 
degree within one year of separation from active duty.  

For all the foregoing reasons, the claim for service 
connection for a lumbar spine disorder, to include 
degenerative joint disease, 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 v. Derwinski, 1 Vet. 
App. 49, 53-56 (1990).  



ORDER

Service connection for a lumbar spine disorder, to include 
degenerative joint disease, is denied.


REMAND

With respect to the issue of entitlement to service 
connection for radiculitis remaining on appeal, the Board 
finds that a remand is necessary in order to ensure that 
there is a complete record upon which to decide the 
Veteran's claim so that he is afforded every possible 
consideration.  38 U.S.C.A. §§ 5107(a), 5103A; 38 C.F.R. § 
3.159(c).

The Veteran has claimed to suffer from radiculitis in his 
left lower extremity due to service.  A VA examination was 
conducted pursuant to the Board's remand directives.  In May 
2013, the VA examiners found that there was no left lower 
extremity radiculopathy demonstrated on physical examination 
and instead attributed his physical symptoms to his service-
connected left foot frostbite.  However, a review of the 
clinical evidence reveals an assessment of sciatica (i.e. 
lower extremity radiculopathy) in an October 2008 VA 
examination report.  See McClain v. Nicholson, 21 Vet. App. 
319, 321 (2007) (the requirement of a current disability is 
satisfied when the claimant has a disability at the time a 
claim for VA disability compensation is filed or during the 
pendency of the claim, even if the disability resolves prior 
to the adjudication of the claim).  

A remand by the Board confers on an appellant the right to 
VA compliance with the terms of the remand order and imposes 
on the Secretary a concomitant duty to ensure compliance 
with those terms.  See Stegall v. West, 11 Vet. App. 268, 
271 (1998).  In Stegall, the Court held that "where ... the 
remand orders of the Board . . . are not complied with, the 
Board itself errs in failing to insure compliance."  Id.  
In light of this deficiency, and the Board's remand 
directives, it is unlikely that the May 2013 VA opinion 
would withstand judicial scrutiny.  As such, he an addendum 
to this VA opinion should be obtained to determine the 
nature and etiology of the Veteran's claimed radiculitis. 

Accordingly, the case is REMANDED for the following action:

1.  Obtain an addendum to the May 2013 opinion, 
if possible, or afford the Veteran a new 
examination with an appropriate examiner, to 
determine the nature and etiology of his 
claimed radiculitis.  All indicated tests and 
studies should be undertaken.  The claims file, 
including a complete copy of this remand, must 
be made available for review of the Veteran's 
pertinent medical history.

The examiner is asked to furnish an opinion 
with respect to the following questions:
.
Is it at least as likely as not (50 percent or 
greater probability) that any such diagnosed 
lower extremity radiculopathy had its onset 
during the Veteran's period of active duty 
service from July 1981 to July 1984; or, was 
any such disorder caused by any incident or 
event that occurred during his period of 
service?  

The examiner should specifically consider the 
Veteran's lay statements regarding his lower 
extremity radiculopathy.  The rationale for any 
opinion offered should be provided.  The 
examiner should also address the impact, if 
any, of the Veteran's post-service back injury 
on his claimed radiculitis.

In answering each of the questions posed above, 
the examiner is advised that the Veteran is 
competent to report injuries and symptoms, and 
that his reports must be considered in 
formulating the requested opinion.  If the 
Veteran's reports are discounted, the examiner 
should provide a rationale for doing so.

A complete rating should be given for each 
opinion expressed.  In this regard, a 
discussion of the facts and medical principles 
involved would be considerable assistance to 
the Board.

2.  After completing the above, and any other 
development as may be indicated by any response 
received as a consequence of the actions taken 
in the preceding paragraphs, the Veteran's 
claim should be readjudicated based on the 
entirety of the evidence, to include all of the 
evidence received since the issuance of the 
June 2013 supplemental statement of the case.  
If the claims remains denied, the Veteran 
should be issued a supplemental statement of 
the case.  An appropriate period of time should 
be allowed for response.

The Veteran has the right to submit additional evidence and 
argument on the matter the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court 
of Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs