Citation Nr: 1329340 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 05-25 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a back disability, to include as secondary to service-connected diabetes mellitus, type II (DM). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. During the course of the appeal, the Veteran has requested a Travel Board hearing before a Veterans Law Judge at the RO on three separate occasions. Three corresponding hearings were scheduled in July 2007, July 2009, and May 2011. In each instance, the Veteran contacted VA prior to the hearing to notify them that he could not attend; consequently each hearing request has been deemed withdrawn. In August 2012 and April 2013, the Board remanded the case for further development. As discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDING OF FACT A back disability is not shown to be causally or etiologically related to any disease, injury, or incident of service origin, including service-connected diabetes mellitus type II. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper 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). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that VA has satisfied its duty to notify. Specifically, an October 2003 letter, sent prior to the decision on appeal, 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 the evidence and information. A June 2010 letter advised him of the same with respect to secondary service connection. A March 2006 letter advised him of information necessary to establish a disability rating and an effective date. While the March 2006 and June 2010 letters were issued after the initial April 2004 rating decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The United States Court of Appeals for Veterans Claims clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the March 2006 and June 2010 letters were issued, the Veteran's claim was readjudicated in the October 2008, April 2009, February 2011, and July 2013 supplemental statements of the case. Therefore, any defect with respect to the timing of the notice has been cured. Relevant to the duty to assist, the Veteran's private treatment records, VA treatment records, service treatment records (STRs), service personnel records, lay statements, and VA examination reports have been obtained and considered. Pursuant to the Board remands, the Veteran was asked in a September 2012 letter to identify any additional providers who treated his back, and current VA treatment records have been associated with the claims file. Veteran has not identified any additional relevant outstanding records that have not been requested or obtained. In August 2012 the Board remanded the case for a VA examination, inter alia. Such examination was conducted in October 2012, including an interview, clinical evaluation, and review of the record. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a rationale. Thus it is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). However, the opinion did not address whether the Veteran's service-connected DM aggravated his back disability. Accordingly, in April 2013 the Board remanded the claim for an addendum medical opinion to address this question. The 2012 VA examiner provided such an addendum in July 2013. As such, the Board finds that the AOJ has substantially complied with the previous remand directives such that no further action is necessary in this regard. D'Aries, supra. The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis 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; 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. § 1110; 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection also may be established for disability that is proximately due to or aggravated by an already service-connected disorder. 38 C.F.R. § 3.310. When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his back disability is due to service. In his substantive appeal, he attributes his back disability to carrying a heavy backpack in Vietnam. Alternately, he claims that his service-connected DM caused and/or aggravated his back disability. Thus, he contends that service connection is warranted. VA and private treatment records show current back diagnoses of chronic low back pain; diffuse hypertrophic spondylosis and mild to moderate degenerative disc at L4/5 and L5/S1; progressive osteoarthritis; and degenerative joint disease (DJD). The Veteran has a current back disability. The only in-service evidence of back symptoms is an undated STR made after two years of military service (roughly 1971). It is a report of medical history completed by the Veteran wherein he answered "Yes" to the question "have you ever or have you now" recurrent back pain. The induction and separation examination reports both show normal spine and no diagnoses, history, or treatment of back problems. There is no evidence of diagnosis, treatment, or objective finding of back disability in service. Arthritis is an enumerated disease under 38 C.F.R. § 3.309(a). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, as this Veteran did, and the disease manifests to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Here there is no evidence that any arthritis manifested at all within one year of January 1972, the date of termination of the Veteran's service. There is no evidence of an in- service diagnosis of arthritis. The earliest post-service evidence of back pain occurred in May 1985, when the Veteran reported low back pain beginning one year prior (1984). The first diagnosis of arthritis was based on a March 2003 x- ray, which showed diffuse hypertrophic spondylosis and mild to moderate degenerative disc at L4/5 and L5/S1. In April 2003 the Veteran reported a history of low back pain since 1985. He has been treated off and on, privately and through the VA, for low back pain since this time. His first definitive diagnosis of chronic low back pain was in an April 2005 VA treatment record. In March 2007 he was diagnosed with progressive osteoarthritis and back pain due to degenerative joint disease (DJD). An October 2009 x-ray showed moderate degenerative changes of the spine. Thus the first diagnosis of arthritis occurred more than 30 years after discharge from service. Moreover, even the Veteran's lay reports of recurring pain place the onset in 1984 or 1985, more than 10 years after discharge. Thus, neither the Veteran nor the medical evidence indicates that the arthritis existed within one year of January 1972. Therefore, his service connection claim for a back disability must fail on the basis of the presumptive regulations. Notwithstanding the foregoing presumption provisions, the Federal Circuit has determined that a Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Direct service connection may be shown by evidence of the existence of a chronic disease in service and present manifestations of the same chronic disease. 38 C.F.R. § 3.303(b). In this case, arthritis is an enumerated chronic disease under 38 C.F.R. §3.309. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While the evidence shows a present manifestation of arthritis, there is no evidence of the chronic disease of arthritis in service. At most, there is the 1971 complaint of recurrent low back pain, and it is unclear whether this refers to a past or present symptom. The Veteran's separation examination report shows normal spine findings. Moreover, at no point does the Veteran assert that his back pain has been continuous since service; rather, both he and the treatment records provide an onset date of 1984 or 1985. Without evidence of the existence of arthritis in service or evidence of continuity of symptomatology since service, the Veteran's service connection claim for a back disability cannot be granted under 38 C.F.R. § 3.303(b). Direct service connection may also be shown by evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 C.F.R. §§ 3.303, 3.304. The 2012 VA examiner opined that the Veteran's lumbar spondylosis with DDD was less likely than not incurred in or caused by an in-service event, illness, or injury. He reasoned that there is no documentation of any back disability occurring or manifesting in service, and that the single complaint of recurrent back pain in 1971 was followed by silence until May 1985. In May 1985, the Veteran reported a history of low back pain for only one year, and his spine examination at that time was normal. The current back disability was not diagnosed until the 2003 x-ray. The Board finds this opinion probative, as the VA examiner provided a fully articulated opinion with supporting rationale. The Veteran also asserts that his back disability is proximately due to or aggravated by his service connected DM. 38 C.F.R. § 3.310. In March 2007 his private primary care physician, Dr. Lizama, stated in a letter, "I do believe his Diabetes Mellitus may be contributing to accelerated premature illness of arthritis. . . . However, the causes may be multi-disease processes and multiple factors." This opinion is not accompanied by a rationale, and therefore is not probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The VA examiner opined that it was less likely than not that the Veteran's back disability was caused or aggravated by his service-connected DM. With respect to causation, he explained that his review of medical literature showed that spondylosis/DDD has no noted etiological relationship to DM. He discussed Dr. Lizama's letter and pointed out that Dr. Lizama acknowledged that the causes of the Veteran's current disability may involve multiple disease processes and factors. The VA examiner explained that the Veteran has additional factors increasing his risk for spondylosis, including smoking history, alcohol use, and osteopenia. With respect to aggravation, the VA examiner noted that the Veteran's DM was diagnosed in 2003, long after the onset of his low back complaints. Further, an October 2012 MRI noted that lumbosacral findings had only mildly progressed since a December 2005 MRI. The VA examiner felt that the radiological measurements of the Veteran's back condition could be attributed to natural progression. In addition, he stated that if DM was a significant contributor to the back progression, he would have expected to see greater changes than those demonstrated by the evidence of record, because the medical evidence shows that the Veteran's DM has not been under adequate control. The VA examiner reviewed the claims file, including lay statements, examined the Veteran, and provided an adequate rationale for his opinion. The Board therefore finds this medical opinion is adequate and probative. Although the Veteran is competent to provide testimony relating to symptoms or facts of events that are within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the Board can only give lay evidence the weight to which it is entitled. A mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient. Waters v. Shinseki, 601 F.3d 1274 (2010). The Board finds that the question regarding the potential relationship between the Veteran's back disability and his service and/or DM to be complex in nature. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). DJD, DDD, osteoarthritis, and spondylosis fall outside the realm of common knowledge of a lay person and are diagnosed by medical tests. There is no evidence that the Veteran has the requisite medical knowledge to administer such tests or interpret the results. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Furthermore, he does not appear to possess the medical knowledge to attribute a back disability to any specific instance of his military service, including his service-connected DM. Therefore, while the Veteran is competent to describe his back symptoms, he has offered only conclusory statements and is not competent to opine on the complex medical question of etiology. As there is no probative evidence of record suggesting a connection between service and the Veteran's back disability, or between his back disability and service- connected DM, the Board finds no basis to grant service connection. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a back disability. Therefore, his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a back disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs