Citation Nr: 1329082 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 12-11 477A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for a back disability to include degenerative changes of the lumbar spine and bulging discs REPRESENTATION Veteran represented by: David Owens, Agent ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The record reflects that the Veteran had active service from July 1980 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. FINDINGS OF FACT 1. The Veteran's service treatment records do not show any instance of injury to the Veteran's back. 2. The Veteran has a back disability to include degenerative changes of the lumbar spine and bulging discs. 3. The Veteran reported that his current back symptoms were the result of a workplace accident in 2009. 4. The Veteran reported that the workplace injury in 2009 was aggravated by a motor vehicle accident (MVA) in 2010. 5. The competent and credible evidence of record does not relate the Veteran's back disorder to his military service. CONCLUSION OF LAW The criteria for service connection for a back disability to include degenerative changes of the lumbar spine and bulging discs have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA Notice and Duty to Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, 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 record shows that through a VCAA letter dated October 2010 the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection. The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Charles v. Principi, 16 Vet. App. 370 (2002). Additionally, he was informed of the criteria for assignment of an effective date, and/or disability rating, in the event of award of the benefit sought. The VCAA letter to the Veteran was provided in October 2010, prior to the initial unfavorable decision in February 2011. The Board also finds that there has been compliance with the VCAA duty to assist provisions. The record in this case includes service treatment records, VA treatment records, private treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was also offered a hearing before the Board but declined. While a VA medical opinion was not obtained in this case, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is 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. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). As discussed below, the record in this case does not indicate that the Veteran's claimed back disorder, diagnosed more than two decades after he separated from service, was the result of his military service. Thus, the Veteran's conclusory lay statements are insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In order to establish direct service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be established by either continuity of symptomatology after service under 38 C.F.R. § 3.303(b) or by initial diagnosis of the medical condition after service under 38 C.F.R. § 3.303(d). The Federal Circuit recently held that continuity of symptomatology under 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013). The Veteran contends that his current back disorder is the result of an in-service MVA that occurred in March 1982. He further asserts that the injuries he experienced as a result of the MVA were aggravated by repetitive marching and drilling, and that his back remained painful and sore over the years. Preliminarily, the Board recognizes that the Veteran has been diagnosed with a back disability that includes degenerative changes of the lumbar spine and bulging discs. As such, the Veteran has established a present disability for the purposes of service connection. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran's service treatment records (STRs) are entirely silent as to any injuries, complaints, treatment, or diagnoses of his back, however they do show treatment for a variety of other ailments including wisdom teeth in February 1982, ring worm in June 1982, foot pain in July 1982, and leg and knee pain in September 1982. Additionally, the Veteran elected not to undergo a physical examination at the time of separation in July 1983. The post-service record is negative for any back disorders or diagnoses until August 2010. The Veteran began receiving VA treatment for his back in August 2010. An MRI was performed at this time which showed that the Veteran had degenerative changes throughout the lumbar spine and a bulging disc at the L4-L5 vertebrae (which the Veteran asserts and the record reflects will ultimately require surgery). However, while seeking treatment for his back disorder, the Veteran reported on a number of occasions (including VA treatment records dated August 2010, September 2010, November 2010, and January 2011) that his back pain was the result of a November/December 2009 workplace fall that was further aggravated by a MVA in February 2010. An MRI performed in response to the 2009 back injury was reported to be normal by the Veteran. While results of this MRI are not of record, they would not be relevant as the Board has already determined that the Veteran has a current back disorder. Furthermore, the MRI was completed following the Veteran's workplace injury and therefore any findings would not have conclusively pre-dated that back trauma. The evidence in this case weighs against a finding that the Veteran suffered an in-service injury. As discussed, the Veteran's STRs are negative for any back problems during service and the Veteran has asserted that he was not permitted to seek medical attention at the time of his MVA. However, even if this were accepted as true, the Board finds it unlikely that he would have failed to seek medical attention, if he did in fact continue to experience back problems, at any point between the time of the accident and separation, despite repeatedly being treated for unrelated ailments during that period. Furthermore, the Veteran's representative asserts that the Veteran underwent rehabilitation on his back shortly after the MVA. However, the record is negative for any indication that rehabilitation treatment ever occurred, either during or after service, and no facility or treatment dates appear anywhere in the record. The Board also finds it unlikely that the Veteran would have elected not to have a physical at separation if his back had remained sore and painful ever since an accident. Additionally, the lack of treatment or complaints of a back disorder for approximately 26 years after the Veteran's reported in-service MVA weighs against the credibility of the Veteran's claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). As such, the weight of the evidence in this case simply does not support a finding that an in-service injury occurred. Based on the above, the Board finds the Veteran's statements regarding an in-service injury and symptoms ever since then to be not credible. Moreover, even if the evidence supported a finding that the Veteran did experience an in-service back injury, there is no competent evidence of a nexus or connection between any in-service injury and the Veteran's current back disorder. As discussed, the Veteran reported to several VA medical practitioners that the immediate cause of his current back problems was a workplace injury in November/December 2009 along with a MVA in February 2010. Additionally, the record is negative for any evidence other than the Veteran's assertions that his current back problems are linked to his service. While the Veteran is competent to testify as to experiencing back pain, which is capable of lay observation, he is not competent to render a medical diagnosis, or to opine as to whether his currently diagnosed back disorder is related to service. See Barr, 21 Vet. App. at 307 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature). The Board has considered the Veteran's claim that he has experienced back problems since service. However, the Board does not find that continuity of symptomatology has been established. As discussed above, the record reflects that the Veteran first sought treatment for his back more than two decades after separation, following his 2009 workplace injury and 2010 MVA. Additionally, the Veteran has reported to several VA medical personnel that his current back problems are the result of that workplace injury and MVA. In the VA treatment records from 2010 the veteran indicated a duration of 2 months for his back pain. Based on this evidence, the Board does not find that the Veteran has consistently reported symptoms of back problems since service nor has he consistently attributed his current back problems to service. Therefore, the Veteran's statements regarding the continuity of his back problems since service are not credible and service connection due to continuity of symptomatology is not warranted. 38 C.F.R. § 3.303(b). In sum, the evidence weighs against a finding that the Veteran experienced an in-service injury and there is no credible and competent medical opinion relating the Veteran's current back disability to his military service. As such, service connection must be denied. ORDER Entitlement to service connection for a back disability, to include degenerative changes of the lumbar spine and bulging discs, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs