Citation Nr: 1328450	
Decision Date: 09/05/13    Archive Date: 09/16/13

DOCKET NO.  11-20 937	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, 
Idaho


THE ISSUE

Entitlement to service connection for a lower spine 
disorder.  


REPRESENTATION

Appellant (Veteran) represented by:	Disabled American 
Veterans


ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel 


INTRODUCTION

The Veteran served on active duty from July 1949 to November 
1952.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a December 2009 decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.  
In April 2013, the Board remanded this matter for additional 
development, which has been completed.  

The Board has reviewed the Veteran's entire claims file, to 
include documents of record in his virtual VA folder.  No 
additional relevant evidence has been included in the claims 
file since the most recent supplemental statement of the 
case (SSOC) dated in August 2013.  38 C.F.R. §§ 19.31, 
20.1304(c) (2012). 
 
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 disorder was not shown in service; a low back 
disorder was not shown until many years after service; and 
the Veteran's current low back disorder is not related to a 
disease or injury of service origin.    


CONCLUSION OF LAW

A low back disorder was not incurred in or aggravated by 
active service, and may not be presumed related to service.  
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 
3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, 
describes VA's duties to notify and assist claimants in 
substantiating a claim for VA benefits.  
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(a) 
(2012).  The VCAA applies to this claim.

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative of any information, 
and any medical or lay evidence, that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b).  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 C.F.R. § 3.159(b)(1).  VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 
484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA 
notice should be provided to a claimant before the initial 
unfavorable agency of original jurisdiction decision on a 
claim.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), 
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

The RO submitted to the Veteran a VCAA letter dated in March 
2009.  The letter notified the Veteran regarding what 
information and evidence is needed to substantiate his claim 
of service connection.  The letter notified the Veteran 
regarding what information and evidence must be submitted by 
the Veteran and what evidence VA would obtain.  The letter 
included provisions regarding disability ratings and 
effective dates.  And the Veteran was fully notified prior 
to the December 2009 rating decision on appeal.  In sum, the 
Board finds that VA has met its duty to provide VCAA 
notification to the Veteran regarding the service connection 
claim addressed in this decision.  

With regard to the duty to assist, the RO attempted to 
retrieve the Veteran's service treatment records (STRs), 
which were reportedly destroyed by fire.  The RO obtained 
relevant private and VA treatment records and reports.  
Further, the Veteran underwent VA compensation examination 
into his claim.  The report of the examination, and its 
included opinion, adequately address the Veteran's case.  
See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that 
VA must provide an examination that is adequate for rating 
purposes).  

In sum, the record is sufficiently developed for a 
determination at this time.  The Board will rely on the 
record to determine the claim to service connection.  
Appellate review may proceed without prejudice to the 
Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

II.  The Merits of the Claim to Service Connection

The Veteran claims service connection for a low back 
disorder.  He claims that he injured his back during service 
in 1951, and that he was treated several times during 
service for his lumbar spine injury in 1951 and 1952.  He 
also asserts that he has experienced symptoms since the in-
service injury.  

Service connection for VA compensation purposes will be 
granted for a disability resulting from disease or personal 
injury incurred in the line of duty or for aggravation of a 
preexisting injury in the active military, naval or air 
service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 
3.303(a) (2012).  When a Veteran seeks service connection 
for a disability, due consideration shall be given to the 
supporting evidence in light of the places, types, and 
circumstances of service, as evidenced by service records, 
the official history of each organization in which the 
Veteran served, the Veteran's military records, and all 
pertinent medical and lay evidence.  38 U.S.C.A. § 1154; 38 
C.F.R. § 3.303(a).

Service connection may be awarded where the evidence shows 
that a Veteran had a chronic condition in service or during 
an applicable presumptive period and still has the 
condition.  38 C.F.R. §§ 3.303(b), 3.307, 3.309.  Certain 
disorders such as arthritis are presumed to have been 
incurred in service if manifested to a compensable degree 
within one year after service.  38 U.S.C.A. §§ 1101, 1112, 
1113; 38 C.F.R. §§ 3.307, 3.309.

If there is no evidence of a chronic condition during 
service or during an applicable presumptive period, then a 
showing of continuity of symptomatology after service is 
required to support the claim.  The U.S. Court of Appeals 
for the Federal Circuit recently clarified that the 
continuity of symptomatology language in § 3.303(b) is 
limited to the chronic diseases listed under 38 C.F.R. § 
3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 
2013).  Service connection may also be granted for disease 
that is diagnosed after discharge from active service, when 
the evidence establishes that such disease was incurred in 
service.  38 C.F.R. § 3.303(d).

Generally, in order to establish service connection, there 
must be (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 current disability.  See 
Hickson v. West, 12 Vet. App. 247, 253 (1999).  The 
determination as to whether these requirements are met is 
based on an analysis of all the evidence of record and the 
evaluation of its credibility and probative value.  See 
Baldwin v. West, 13 Vet. App. 1, 8 (1999).

When there is an approximate balance of positive and 
negative evidence regarding any issue material to the 
determination of a matter, the benefit of the doubt shall be 
given to the claimant.  38 U.S.C.A. § 5107(b).  When a 
reasonable doubt arises regarding service origin, such doubt 
will be resolved in the favor of the claimant.  Reasonable 
doubt is doubt which exists because of an approximate 
balance of positive and negative evidence which does not 
satisfactorily prove or disprove the claim.  38 C.F.R. § 
3.102.  In Alemany v. Brown, 9 Vet. App. 518 (1996), the 
United States Court of Appeals for Veterans Claims (Court) 
found that in light of the benefit of the doubt provisions 
of 38 U.S.C.A. § 5107(b), an accurate determination of 
etiology is not a condition precedent to granting service 
connection; nor is "definite etiology" or "obvious 
etiology."  The question is whether the evidence supports 
the claim or is in relative equipoise, with the claimant 
prevailing in either event, or whether a fair preponderance 
of the evidence is against the claim, in which event the 
claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 
54 (1990).  

The Board notes that it has thoroughly reviewed the record 
in conjunction with this case.  Although the Board has an 
obligation to provide reasons and bases supporting this 
decision, there is no need to discuss, in detail, the 
extensive evidence submitted by the appellant or on his 
behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. 
Cir. 2000) (the Board must review the entire record, but 
does not have to discuss each piece of evidence).  Rather, 
the Board's analysis below will focus specifically on what 
the evidence shows, or fails to show, on the claim.  See 
Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting 
that the Board must analyze the credibility and probative 
value of the evidence, account for the evidence which it 
finds to be persuasive or unpersuasive, and provide the 
reasons for its rejection of any material evidence favorable 
to the claimant).  

In this matter, the record establishes that the Veteran has 
a current low back disorder.  A June 2013 VA compensation 
examination report notes diagnoses of degenerative disc 
disease of the lumbosacral spine from L3 to S1, a history of 
lumbar spine disc rupture, and residuals of discectomy and 
instrumented fusion from L2 to L5.  Private and VA treatment 
records document treatment for the lower back problems as 
well.  The first element of Hickson is therefore 
established.  

With regard to the second element of Hickson - i.e., whether 
the Veteran incurred a back disorder in service - the Board 
notes that the record lacks medical evidence documenting an 
in-service lower back injury.  Indeed, the Veteran's 
November 1952 discharge report of medical examination is 
negative for a back disorder.  Nevertheless, the Board finds 
that the evidence of record satisfies the second element of 
Hickson.  

In memoranda of record, the RO concluded that the remainder 
of the Veteran's STRs are unavailable and were likely 
destroyed while in the possession of the government.  In 
matters such as this, the Board is obligated to particularly 
consider  the benefit-of-the-doubt rule.  O'Hare v. 
Derwinski, 1 Vet. App. 365, 367 (1991).  And in doing so, 
the Board finds the record in equipoise on whether the 
Veteran injured his back in service.  On the one hand, the 
November 1952 discharge report of examination indicates no 
back injury.  On the other hand, lay evidence of record 
indicates a lower back injury during service.  The Veteran 
has repeatedly described an in-service lower back injury in 
1951 for which he received medical treatment.  Two former 
servicemembers, in letters received in March 1993, indicate 
that they recall the Veteran had injured his back while 
working on large trucks in the motor pool; and that he 
suffered a lot of back trouble, including difficulty getting 
out of bed and walking.  Moreover, in statements received in 
December 2010, the Veteran's brothers testified that they 
knew the Veteran hurt his back during active service, and 
that he continued to have back problems after his discharge 
from active service.  

Lay assertions may serve to support a claim for service 
connection by supporting the occurrence of lay-observable 
events or the presence of disability or symptoms of 
disability subject to lay observation.  Jandreau v. 
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. 
Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing 
lay evidence as potentially competent to support presence of 
disability even where not corroborated by contemporaneous 
medical evidence).  As the Veteran is competent to attest to 
symptoms such as the pain and limitation of function that 
would relate to a lower back injury, his lay assertions are 
of probative value.  These symptoms, which the Veteran 
directly experienced, are observable in nature.  Similarly, 
the observations of his friends and brothers, who claimed to 
directly see the Veteran's pain and limitation, are of 
probative value.  Further, the Board has found no evidence 
of record to question the credibility of the Veteran and the 
other lay witnesses.  

Nevertheless, a service connection finding is unwarranted 
for any lower back disorder.  The evidence establishes that 
the current lower back problems are not related to the in-
service lower back injury, and establishes that arthritic 
changes associated with the lower back disability did not 
develop within one year of discharge from service.  
38 C.F.R. §§ 3.303, 3.307, 3.309.   

With regard to Hickson element (3) - the question is whether 
the Veteran's current lower back problems relate to his in-
service injury.  For the Veteran to be successful in his 
claim, the evidence must show either that it is at least as 
likely as not that his disability is related to a disease or 
injury that occurred in service.  If the preponderance of 
the evidence shows otherwise, the Veteran's claim must be 
denied.  Based on the record, the Board finds that the 
preponderance of the evidence is against Hickson element 
(3).  

The record contains one medical opinion addressing the 
Veteran's claim.  Pursuant to the Board's April 2013 remand, 
the Veteran underwent VA compensation examination in June 
2013.  The examiner indicated a review of the claims file 
and a personal evaluation of the Veteran.  The examiner 
noted a diagnosis of degenerative disc disease, and 
summarized evidence of record documenting that the Veteran 
underwent lower back surgery in the 1970s and 1980s.  The 
examiner summarized the Veteran's claim that he injured his 
back during service in 1951.  And the examiner offered a 
clear opinion, stating that the Veteran's current lower back 
problems were likely not related to any injury he might have 
experienced during service.  In support of his opinion, the 
examiner stated that the in-service back injury did not 
relate to the back problems that appeared to have had their 
onset in the early to mid 1970s, and which persist to today.  
The examiner noted that documents of record pertaining to 
lower back treatment and surgery in the 1970s do not refer 
to a service injury at all.  Lastly, in explaining his 
finding that the current back problems do not relate to an 
in-service injury, the examiner stated that the Veteran "has 
genetically determined diffuse degenerative disc disease.  
This is, of course, a normal condition but his is most 
likely accelerated by genetic factors."  See Nieves-
Rodriguez v. Peake, 22 Vet. App. 295, 300-1 (2008) (to have 
probative value, a medical examination submitted to the 
Board must contain not only clear conclusions with 
supporting data, but also a reasoned medical explanation 
connecting the two).  

The examiner's opinion is based on the evidence of record.  
As indicated, the earliest evidence of record of a post-
service back disorder, or of treatment for one, is dated in 
the early to mid 1970s, approximately two decades following 
active service.  See Maxson v. Gober, 230 F.3d 1330, 1333 
(Fed. Cir. 2000) (the passage of many years between 
discharge from active service and the medical documentation 
of a claimed disability may be considered in evaluating a 
claim of service connection).  In the mid 1970s, when filing 
a claim for pension benefits due to a back disorder, the 
Veteran did not refer at all to service, or to a back injury 
during service.  During a June 1976 VA examination, the 
Veteran reported that he injured his back when he attempted 
to stop a falling mechanical jack in 1972; that he was 
hospitalized and was put in traction for ten days; and that 
he continued to have low back pain, and underwent surgery in 
April 1974.  Indeed, the Veteran's earliest assertion of 
record of an in-service back injury is made in March 1993, 
over four decades following discharge from service.  

In assessing the third element of Hickson, The Board has 
closely considered the lay statements of record asserting a 
medical nexus between service and the lower back problems.  
Again, the lay witnesses of record are competent to comment 
on observable matters such as pain and limitation of motion.  
See Jandreau and Buchanan, both supra.  However, the lay 
statements are of limited value regarding the issue of 
medical nexus because none of the witnesses, to include the 
Veteran, is competent to render diagnoses or comment on the 
issue of etiology.  The disability at issue involves an 
internal degenerative disease process of the spine that is 
beyond the capacity for lay observation.  Its etiology and 
development cannot be determined through observation or by 
sensation such as feeling.  Indeed, the lay assertions 
regarding the way in which the spine problem developed are 
not persuasive.  None of the lay witnesses has the training 
and expertise to provide probative medical evidence 
connecting service to the symptoms, or connecting the 
symptoms to a back disorder.  In particular, the Veteran is 
not competent to state that what he may have felt during 
service, or has felt since service, resulted in the 
arthritic and neurological problems, and multiple surgeries, 
that had an onset decades following service.  On this 
essentially medical question, the medical evidence is of 
more probative value.  And the medical evidence clearly 
indicates no relationship between the Veteran's current back 
problems and his service.  

In sum, the record documents that the Veteran has current 
lower back problems, and that he may have injured his back 
during service.  However, the preponderance of the evidence 
of record indicates that the current problems are unrelated 
to service, and that they had an onset many years following 
service.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  As 
such, a service connection finding is unwarranted in this 
matter, on either a direct or presumptive basis.  38 C.F.R. 
§§ 3.303, 3.307, 3.309.  


(Continued on the next page)


ORDER

Entitlement to service connection for a lower spine disorder 
is denied.  



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs