Citation Nr: 1330817 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-14 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a back disorder, to include as secondary to the service-connected prostate disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDING OF FACT The probative evidence of record does not show that the Veteran's currently diagnosed back disorder is related to his military service or a service-connected disability. CONCLUSION OF LAW A back disorder was not incurred in active military service, and is not due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the issue denied herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Prior to initial adjudication of the Veteran's claim, the RO's June 2008 letter advised the Veteran of the foregoing elements of the notice requirements. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The June 2008 letter provided the Veteran with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, VA outpatient treatment records, and his private treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran was afforded an opportunity to testify at an October 2010 hearing before the Board. See 38 C.F.R. § 20.704 (2013). Furthermore, the Veteran was provided with a VA examination in connection with his claim for service connection for a back disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In compliance with the Board's December 2010 remand, a VA medical opinion was obtained in January 2011 as to whether the Veteran's back disorder was related to his service or caused or aggravated by a service-connected disability. The Board finds this VA examination adequate as it was based upon a complete review of the Veteran's claims file, clinical examination of the Veteran, and with consideration of the Veteran's statements, and the VA examiner provided a written rationale for the conclusion reached. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the foregoing, the Board concludes that there has been substantial compliance with its December 2010 remand with respect to the issue decided herein. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Finally, as there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this 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. 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, 1131; 38 C.F.R. § 3.303 (a). Service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). In order to prevail on the issue of direct service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis 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. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection is currently in effect for a prostate disorder. The Veteran contends that his current back disorder had its onset during active service. Specifically, during the October 2010 hearing before the Board, he testified that he initially injured his back in 1964 when stacking spools of wire during a training exercise. He further asserts that he also complained of back pain at the time he was treated for prostatitis, and was subsequently taken to Madigan General Hospital in Ft. Lewis, Washington, where he received treatment for prostatitis. He testified that he had experienced recurring back pain since active service. Service treatment records include the reports of an October 1961 pre-induction physical examination and an August 1963 induction physical examination, which are negative for complaints or a diagnosis of a back disorder. A May 1965 record notes complaints of lumbosacral back pain radiating into his groin and testicles; the diagnosis was chronic prostatitis. A subsequent May 1965 record shows complaints of burning urination and low back pain for approximately two months; the diagnosis was chronic prostatitis. Additional May 1965 records show complaints of low back pain, associated with prostatitis. A July 1965 record notes that the Veteran was discharged from the hospital eight days ago with a diagnosis of chronic prostatitis, and since such time, he experienced several symptoms, to include low back pain. The report of a July 1965 separation physical examination is negative for complaints or a diagnosis of a back disorder. Post-service treatment records include a February 1966 VA hospital summary, which shows the Veteran's complaint of back pain, with burning urination; a back disorder was not diagnosed. The report of a February 1971 VA examination notes complaints of back pain in the small of the back, with burning urination; a back disorder was not diagnosed. The diagnosis was recurrent prostatitis. Private treatment records dated in January 2003 through 2008 show that the Veteran sought treatment for thoracolumbar spine pain. The report of a March 2007 x-ray examination of the thoracolumbar spine indicates diagnoses of mild degenerative disc disease, hypertrophic spurring, and osteophyte formation at multiple levels. The report of an April 2007 Magnetic Resonance Image test of the thoracolumbar spine notes diagnoses of minor to mild diffuse degenerative changes of the lumbar spine and L4-L5 disc protrusion. An April 2007 record notes an assessment of probably radiculopathy at L4-L5 on the right. The report of a June 2007 Computed Tomography scan of the thoracolumbar spine indicates diagnoses of mild central canal stenosis at L4-L5, mild degenerative disc disease with minimal central discal bulge at L2-L3, and posterior facet degenerative changes. In a December 2008 letter, the Veteran's private physician, C.F., M.D. reported that the Veteran was a 68 year old man, with a long history of back pain. He further reported that the Veteran developed radiculopathy of the right L5 nerve. He indicated that the Veteran had severe spinal stenosis at L4-L5, which had been treated. He stated that the Veteran also had left lower extremity nerve pain, and was limited in his activity, due to his back disorder. In January 2011, the Veteran underwent a VA examination, during which he reported that he initially hurt his back in service when he rolled up wire at Ft. Lewis. He further indicated that he was hospitalized while in service for about one month for a prostate infection. He reported that subsequent to service, he worked for 34 years at a private company as an assembler and lead man, and experienced back pain, without an injury. He stated that he was treated with a back brace and muscle relaxers by his family practitioner in the 1980's. He reported that he sought treatment for his low back in 2007, and ultimately underwent an L5 thoracolumbar procedure. He reported that he was most recently treated by Dr. C.F. in 2008, and he continued to take over-the-counter Motrin, Tylenol, and Aleve to treat his back pain. Upon examination and review of the Veteran's claims files, the 2011 VA examiner diagnosed lumbar stenosis, status post operation in 2007, with residual pain and bilateral lower extremity numbness. The examiner noted that he considered the Veteran's service treatment records, post-service treatment records, the Veteran's reported history, and reviewed relevant medical literature, and concluded that the Veteran's current low back disorder was not incurred in or a result of the Veteran's service. He further opined that the current back disorder was not caused by or aggravated by a service-connected disability, to include the service-connected prostatitis. The examiner stated that the current back disorder was "at least as likely as not" a result of normal aging and/or post-service activities. In providing the opinion, the examiner noted the Veteran's report of hurting his back in service when he rolled up wire; however, he also noted an extensive list of the Veteran's service treatment records, to include the July 1965 separation examination, which were negative for any thoracolumbar spine injuries or diagnoses. The examiner further noted several medical articles; specifically, one article that indicates that degenerative disc disease was an inevitable process of aging for the vast majority. The examiner also noted the Veteran's service treatment records, which demonstrate reports of low back pain associated with multiple prostate infections, and stated that prostatitis might cause low back pain, however, he also noted that prostatitis would not result in the degenerative changes that the Veteran currently exhibited, which were shown on x-ray examination. The examiner noted that the Veteran only complained of low back pain, associated with prostate infection; however, he also indicated that the Veteran had similar findings in the cervical and thoracolumbar spine regions. After reviewing the evidence of record, the Board finds that service connection is not warranted for a back disorder. There are currently diagnosed back disorders, to include degenerative disc disease and lumbar stenosis. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). However, the probative evidence of record does not show that the Veteran's current back disorders are related to his active duty service, or caused or aggravated by a service-connected disorder. In this regard, the January 2011 VA examiner, after examination of the Veteran, thoroughly reviewing the Veteran's claims file, and considering the Veteran's reported history and lay assertions, opined that he was unable to conclude that the Veteran's back disorder was related to his service or caused or aggravated by his service-connected prostatitis disorder. In rendering this opinion, the examiner noted the Veteran's report of an initial back injury during service while rolling up wire, as well as his report of back pain associated with his inservice prostate infections, however, he also noted an extensive list of the Veteran's service treatment records, to include the July 1965 separation examination, which were negative for any thoracolumbar spine injuries or diagnosed. Moreover, he indicated that while prostatitis might cause low back pain, it would not result in the degenerative changes that the Veteran currently exhibited. Further, he noted that the Veteran's complaints were of low back pain associated with prostate infection, however, examination revealed similar findings in the cervical and thoracolumbar spine regions. The examiner concluded that the Veteran's current back disorder was "at least as likely as not" a result of normal aging and/or post-service activities. In addition, he noted several relevant articles, to include an article, which indicates that degenerative disc disease is an inevitable process of aging for the vast majority. The Board accords a significant probative value to the January 2011 VA examiner's opinion because it was rendered by a physician and is supported by a well-reasoned rationale. To extent that the Veteran contends that his back disorder was caused by an in-service injury or caused or aggravated by his service-connected prostate disorder, the Board finds that these statements as to medical causation are not competent evidence to establish service connection for a back disorder. In this regard, in certain unique instances lay testimony may be competent to establish medical etiology or nexus. See Jandreau, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay statements are competent evidence regarding symptoms capable of observation and may provide sufficient support for a claim of service connection. Id.; see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, the nature or cause of a back disorder is not a simple question that can be determined based on mere personal observation by a lay person. The Board therefore finds that whether the Veteran's back disorder is related to or was caused by his military service or caused or aggravated by his service-connected prostate disorder does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. It is not shown otherwise that the Veteran possesses the ability, knowledge, or experience to provide such an opinion, as opposed to observed continuity-of-symptomatology. 38 C.F.R. § 3.159(a)(2); see also Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Accordingly, the Board finds that the Veteran's lay statements as to medical causation are not competent evidence to establish service connection for a back disorder. In this, and in other cases, only independent medical evidence may be considered to support Board findings. The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). In the absence of competent evidence of a back disorder in service, evidence of arthritis within one year following separation from service, or competent and probative evidence of a nexus between the Veteran's current back disorder and in-service duties or his service-connected prostate disorder, service connection is not warranted for the Veteran's back disorder. The Board has considered the benefit of the doubt doctrine when making these findings, but as discussed above, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a back disorder, to include as secondary to the service-connected prostate disorder. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a back disorder, to include as secondary to the service-connected prostate disorder, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs