Citation Nr: 1330132 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 08-33 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a low back disability. ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty for training from May 2001 to September 2001, and on active duty from January 2002 to January 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. When the case was previously before the Board in March 2011, the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability was remanded for additional development. The March 2011 decision also reopened and granted the Veteran's claim for service connection for tinnitus, granted service connection for posttraumatic stress disorder, denied reopening a claim of entitlement to service connection for bilateral hearing loss, and remanded both a claim of entitlement to service connection for a stomach disorder, to include as due to an undiagnosed illness, and a claim of whether new and material evidence has been received to reopen a claim of service connection for fatigue, to include as due to an undiagnosed illness. Thereafter, in an April 2013 rating decision, the RO granted service connection for gastroesophageal reflux disease with additional vomiting disability and chronic fatigue syndrome. As this represents a total grant of benefits sought on appeal, these two issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). When the case was most recently before the Board in June 2013, the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability was granted, and the issue of entitlement to service connection for a low back disability was remanded for additional development. FINDING OF FACT The Veteran's current low back disability is not causally or etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A March 2008 letter satisfied the duty to notify provisions. The March 2008 letter included proper notice to the Veteran regarding the regulations pertinent to the establishment of an effective date and of the disability rating. Moreover, the letter was sent prior to the initial unfavorable decision. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A VA examination was conducted in June 2013. The Veteran has not argued, and the record does not reflect that the examination is inadequate for rating purposes. The Board finds that the examination was adequate because it was based on an examination of the Veteran, to include discussion of his complaints and symptoms, the examiner reviewed the claims file, and the examination report contains a medical opinion with an adequate rationale. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this regard, and as explained further below, the June 2013 remand requested that the RO obtain any VA X-ray studies dated from January to March 2008. While all VA treatment records dated during this time period were obtained on remand, the records do not contain any X-ray studies. Therefore, as there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its June 2013 remand. In addition to seeking an appropriate VA examination to determine the nature and etiology of any current low back disability, the June 2013 remand instructed the RO/AMC to obtain copies of all of the Veteran's treatment records dating from November 2012 to the present, as well as any and all X-ray studies of the spine (including any X-rays taken in January, February or March 2008). The Veteran's VA treatment records from November 2012 were obtained, as well as all VA treatment records dating from January through March 2008. These records did not reflect that any X-ray studies were completed. Furthermore, the Veteran underwent a VA examination in June 2013. The Board finds that the RO has complied with the Board's instructions and that the June 2013 VA examination report substantially complies with the Board's June 2013 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA), or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology 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 Veteran is not diagnosed with a low back disability such as arthritis, which is recognized as a chronic disability in 38 C.F.R. § 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 benefits. In order to establish direct service connection for a disorder, 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. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). 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). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran contends that service connection is warranted for a low back disability. In his March 2006 claim (VA Form 21-526), he indicated that his back disability began in August 2004. The service treatment records reveal that examination of the spine was normal at the October 2000 enlistment examination. The Veteran denied recurrent back pain on the enlistment report of medical history. A service treatment record dated in August 2001 (during the Veteran's period of ACDUTRA) reflects the Veteran was seen for complaints of low back pain that had been present for one week. There was a notation that the Veteran denied injury to the back. The Veteran stated that he fell on his knee while running. He was instructed to take Naprosyn and Flexeril. The assessment was mechanical low back pain. The December 2005 service separation examination report notes (in the comments section) mechanical low back pain, no problem at present. The November 2005 service separation report of medical history reflects that the Veteran denied recurrent back pain or any back problems. The post service medical evidence includes a February 2006 VA treatment record, which notes that joint examination was within normal limits. Another February 2006 VA treatment record notes that the Veteran reported lower back pain. Another February 2006 VA treatment record notes that joint examination was normal. The Veteran denied arthralgias, swelling, and myalgias. An April 2007 VA treatment record notes that gait was normal and musculoskeletal system was normal. A May 2007 VA treatment record notes that on physical examination of the back, there was no deformity or pain. Another May 2007 VA treatment record notes that there was no musculoskeletal disease. A December 2007 Social Security Administration (SSA) disability record notes that the Veteran reported that his duties during service included loading and unloading 50 gallon drums, and carrying tires weighing about 100 pounds. A December 2007 VA treatment record notes that the Veteran had no muscle or joint pain. A February 2008 VA treatment record lists the Veteran's active problems; no back problems or back disability is included. An August 2008 VA treatment record notes that the Veteran denied muscle or joint pain. Another August 2008 VA treatment record notes that the Veteran denied musculoskeletal problems. A June 2010 VA examination report notes that with regard to the musculoskeletal system, there was a negative history, there was no prior disease or injury, and the Veteran denied functional defects. An October 2010 VA treatment record notes that musculoskeletal examination revealed full power throughout. A December 2010 VA treatment record lists the Veteran's active problems; no back problems or back disability is included. The June 2013 VA examination report notes that the claims file was reviewed. The examination report reflects that the Veteran reported injuring his back in service in 2002 when he fell from a tank. The Veteran indicated that he did not receive treatment for this injury. The examiner noted that the Veteran denied current problems with his low back. The examiner noted that review of the claims file revealed that there was documentation of the Veteran reporting low back pain for a week after falling on his knees while running. He was treated with Naprosyn and Flexeril, and follow up examinations in November and December 2005 were normal and without problems. The VA examination report notes that imaging studies of the thoracolumbar spine were performed and arthritis was not documented. The examiner opined that the Veteran's claimed low back disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that although there is documentation of the Veteran having low back pain for one week after falling on his knees in service, there was no actual trauma to his back and he was diagnosed with mechanical back pain at that time. Current X-ray studies reveal slight scoliosis distorting the fifth lumbar vertebra, distortion of the pedicles due to scoliosis, and patent sacroiliac joints. There was no acute fracture or dislocation. The examiner stated that although the X-ray repot reflects a diagnosis of probable mild degenerative disc disease at the posterior L3-L4, L4-L5 and L5-S1 levels, the examiner felt that on review of the films, the X-rays were essentially with normal variance, and that a diagnosis which includes the word probable does not lend itself for definitive diagnoses. The examiner went on to state that acute mechanical back pain is a common medical problem and a precise anatomic cause of mechanical back pain can be identified only 20 percent of the time. Sometimes, a specific trauma or strenuous activity may cause the pain; however, 80 percent of the time, the specific source of the pain is not found. The examiner stated that fortunately, most persons recover in a relatively short period of time with simple treatment. Non-surgical treatment with limited rest and over the counter pain relievers is sufficient treatment for most patients. A muscle relaxant or physical therapy may also be prescribed. About 90 percent of people with acute low back pain are symptom free in one to two weeks. Many of the remaining estimated 10 percent recover within three months. The examiner opined that the Veteran does not have degenerative arthritis. The examiner further stated that there is no documentation of progressive problems associated with this back problem in the claims file. Specifically, the examiner stated that there is no documentation of chronic and persistent low back pain or treatment, and the Veteran denied current problems associated with his lower back on examination. The examiner concluded that the Veteran did at one time experience low back pain, but he has been asymptomatic over the years and the mechanical low back pain the Veteran experienced in service is less likely as not a continuation of a mechanical low back pain present today. In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a low back disability. In this regard, the Board recognizes that there is evidence of a complaint of low back pain of one week duration during service, and although the Veteran was diagnosed with mechanical low back pain in August 2001, examination findings at the December 2005 separation examination were normal and the Veteran specifically denied back problems at service separation. The first post-service medical evidence of low back complaints was in February 2006, which is only one month after service. However, there was no diagnosis and subsequent VA treatment records note that the Veteran denied musculoskeletal complaints for years thereafter, and these records do not reflect any back complaints, findings or treatment. The Veteran is competent to provide lay evidence concerning continuity of symptoms after service. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ('although interest may affect the credibility of testimony, it does not affect competency to testify'). Therefore, although the Veteran is competent to report ongoing symptoms since service, he actually has not alleged any such ongoing symptomatology. Moreover, the Veteran is not competent to render a diagnosis of mild degenerative disc disease or any other low back disability or relate the etiology of such to active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007) (holding that sometimes a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer, and remanding to the Court to remand to the Board to decide whether lay evidence was competent and sufficient to establish a shoulder dislocation); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses and cautioning that lay testimony that veteran suffered a particular illness, bronchial asthma, was not competent because matter required medical expertise); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (noting that veteran's statements were competent to describe the observable flatness of his feet); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to ringing in the ears (tinnitus) which is capable of lay observation); Barr v. Nicholson, 21 Vet App 303, 308-09 (2007) (holding that lay testimony is competent to establish the presence of varicose veins). In this case, although the Veteran is competent to report that he experienced low back pain since service, he has not actually alleged such ongoing symptomatology. In any event, he is not competent to state that this symptomatology is degenerative disc disease, as that is a determination to be made through specialized testing performed by someone with medical expertise. Thus, the Board cannot assign any significant weight to the Veteran's lay assertions about a diagnosis or etiology of his currently diagnosed low back disability. With regard to the medical opinion of record, the Board notes that the June 2013 VA examiner determined that it is less likely than not that the Veteran's current low back disability was incurred in or caused by service. The examiner reviewed the claims file, and addressed the complaints of back pain during service and the lack of ongoing complaints or treatment for back pain since service, and determined that the Veteran did experience mechanical back pain in service, but that pain is not related to the current back pain. The examiner noted that the Veteran does not currently have degenerative joint disease, which, along with the post-service medical evidence showing no ongoing complaints of back pain or treatment, tends to weigh against a finding that the Veteran has had progressive problems associated with his low back since service, and that medical literature indicates that nearly all cases of mechanical back pain resolve within three months. In sum, the service treatment records do not establish the presence of a chronic low back disability and the evidence does not suggest ongoing symptomatology of any low back disability since service. Although the first evidence of low back complaints since service separation was one month after service, at that time the Veteran was not diagnosed with any back disability, and he continued to deny back/musculoskeletal complaints for years thereafter. Moreover, he is not diagnosed with degenerative joint disease of the spine and the June 2013 VA examiner felt that his X-ray studies were within normal limits. In fact, at the June 2013 VA examination, the Veteran denied current problems with his low back and did not relate any current problems to service. Finally, the competent medical evidence on point is against the claim. For the foregoing reasons, the claim for service connection for a low back disability must be denied. In reaching this conclusion, 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs