Citation Nr: 1329859	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  11-01 804	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Service connection for lumbago, including as secondary to a service-connected disability for residuals of a gunshot wound to the right thigh with residuals of patellofemoral syndrome of the right knee and a scar.  

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

O. Lopez, Associate Counsel






INTRODUCTION

The Veteran served on active duty from September 2006 and November 2009. 

This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. 

The Veteran requested a Board hearing, but did not attend it.  The Board notes that the letter sent to him notifying him of the time, date, and location of the hearing was returned as undelivered due to "insufficient address, unable to forward."  Since that time, however, the Veteran's representative submitted an Informal Hearing Presentation (IHP) in which the representative did not object to proceeding with an IHP in lieu of a Board hearing.  Under these circumstances, the Board deems the Veteran's hearing request to be withdrawn.  See 38 C.F.R. § 20.702(d) (2012).


FINDING OF FACT

The weight of the evidence does not show that the Veteran currently has a low back disability. 


CONCLUSION OF LAW

The criteria for establishing service connection for a low back disability have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). 






REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and to Assist

Upon VA's receipt of a claim for veterans' benefits, the Veterans Claims Assistance of Act of 2000 (VCAA) imposes on VA:  (1) a duty to notify and (2) a duty to assist.  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012).  As discussed below, VA complied with both these duties. 

The duty to notify requires VA to notify claimants of any information and evidence not of record that:  (1) is necessary to substantiate the claim; (2) the VA will seek to provide; and (3) the claimant is expected to provide.  Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (citing 38 U.S.C.A. § 5103(a)); 38 C.F.R. § 3.159(b)(1).  
VA must also notify a claimant that a disability rating and an effective date for the award for benefits will be assigned if service connection is awarded.  Id.  Notice must be provided before an initial unfavorable decision on a claim by the agency of original jurisdiction.  Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  

In this case, VA fulfilled its duty to notify by providing the Veteran a letter dated in August 2009, before the RO adjudicated the claim, that notified him of the above requirements.  Although the letter did not include any notice of the information and evidence needed to substantiate a service connection claim on a secondary basis, the Veteran has not alleged prejudice regarding VA's duty to notify, and the Board finds none.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (stating that the burden of showing harmful error rests with the party raising the issue).

The duty to assist requires VA to help claimants develop their claims:  (1) by obtaining evidence such as treatment records and other relevant evidence; and (2) by providing a medical examination if warranted based on the factors set forth in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

Here, VA obtained the Veteran's service and VA treatment records.  VA also provided the Veteran a VA examination of his spine in December 2009.  As will be explained in more detail in the merits section below, the medical evidence of record is adequate.

The Veteran does not identify and the record does not indicate any additional pertinent evidence that is necessary to fairly adjudicate the claim.  Therefore, the Board finds that the claim is fully developed and that appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  


II.  Merits of the Claim

The Veteran seeks service connection for lumbago (low back pain) as secondary to a service-connected right knee disability that, he contends, is causing him chronic back pain and spasms.  The Veteran reports that his back pain started in December 2007 following a gunshot wound to the right leg that he sustained while serving in Afghanistan.  The Veteran states that his back condition is caused by altered gait and pain avoidance behavior.  He further states that he is developing arthritis in his lower back and that this condition will progressively worsen with age. 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013).  Generally, "[t]o establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain chronic diseases, including arthritis (degenerative joint disease), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a), 3.309(a) (2013). 

Secondary service connection shall be awarded when a disability is "proximately due to or the result of a service-connected disease or injury."  38 C.F.R. § 3.310(a). See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a).  Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability.

In deciding the claim, the Board must consider all information and lay and medical evidence of record.  The Board must provide reasons and bases to support its decision.  However, the Board need not discuss every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).

When there is an approximate balance of positive and negative evidence, i.e., when the evidence is in a state of "equipoise," regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran.  38 U.S.C. § 5107(b) (West 2002 & Supp. 2012). 

The Veteran's VA treatment records include several treatment notes evidencing complaints of low back pain.  The details of his low back pain noted in the treatment records include that the "pain is right paraspinal, lateral to the right muscles" and that the pain is continuous, fluctuates in intensity, and is aggravated by prolonged sitting and standing.

 The Veteran underwent a VA examination of his spine in December 2009.  The examiner noted that the Veteran's posture, head position, symmetry, and gait were all normal.  The examiner found no evidence of gibbus, kyphosis, lumbar lordosis or flattening, reverse lordosis, scoliosis, ankylosis, or limitation on walking. 

The examiner noted that there was no history of fatigue, decreased motion, stiffness, or weakness.  Although the examiner annotated mild flare-ups of spinal conditions that occurred every one to two months and lasted hours, the examiner found no incapacitating episodes of spine disease.  

On thoraco-lumbar spine range of motion, active motion, the examiner noted flexion 0 to 90 degrees, extension 0 to 30 degrees, left lateral flexion 0 to 30 degrees, left lateral rotation 0 to 30 degrees, right lateral flexion 0 to 30 degrees, and right lateral rotation 0 to 30 degrees.  There was no objective evidence of pain on active range of motion.  There was no objective evidence of pain following repetitive motion and no additional limitations after three repetitions of range of motion.

The examiner reported that disc space heights of the Veteran's lumbar spine were normal and that there were no fractures or dislocations seen.  The examiner identified the primary diagnostic code as "normal" and noted the following impression: "normal lumbar spine series."

The Board finds the December 2009 VA examination to be adequate upon which to base a decision regarding the Veteran's claims.  The VA examiner personally interviewed the Veteran, including eliciting a history from him, considered the Veteran's personal statements, and provided a sufficiently detailed report evidencing a thorough examination of the Veteran's spine.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once the VA undertakes an effort to provide an examination to develop a claim, even if not statutorily obligated to do so, the VA must ensure the examination provided is adequate).  

In deciding the Veteran's claim, the Board has considered all the evidence of record and finds the report of the December 2009 examination to be the most probative evidence on whether the Veteran is entitled to service connnection. 

Based on this evidence, the Board finds that entitlement to service connection for a low back disability is not warranted.  The weight of the evidence does not show that the Veteran currently has a low back disability.  No diagnosis of a low back disability has been rendered by a medical professional.  Rather, the competent and credible medical evidence is to the contrary.  As detailed above, the thorough examination of the Veteran's spine revealed a normal lumbar spine. 

Lumbago is defined as pain in the lower back.  See Dorland's Illustrated Medical Dictionary 1076 (32nd ed. 2007).  However, "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001).  

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997).  In the absence of evidence of a present disability, there can be no valid claim on a secondary basis or otherwise.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

The Board acknowledges the Veteran's statements in support of his claim, to include his contentions that he is developing arthritis in his low back and that his service-connected right knee disability is causing his low back pain due to an altered gait and pain avoidance behavior.  Moreover, the Board recognizes that the Veteran is competent to report symptoms, such as back pain, which are capable of lay observation.  Layno v. Brown, 6 Vet. App. 465 (1994).  Nevertheless, the Board notes that, as a lay person without the appropriate medical expertise, the Veteran is not competent to provide a probative opinion on medical matters, such as whether he is developing arthritis or whether his low back pain is caused by his right knee disability.  The etiology of low back disabilities and arthritis are inherently not simple to identify given the complexities of the musculoskeletal system.  Moreover, the Board notes that the December 2009 VA examiner reported that the Veteran's gait was normal. 

For the foregoing reasons, the Board concludes that the criteria for establishing service connection for a low back disability have not been met.  In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine, but finds it inapplicable because the preponderance of the evidence is against the claim.  38 U.S.C.A. § 5107(b).


ORDER

Service connection for lumbago, including as secondary to a service-connected disability for residuals of a gunshot wound to the right thigh with residuals of patellofemoral syndrome of the right knee and a scar is denied. 



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs