Citation Nr: 1331979 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 05-35 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbar spine, to include as secondary to a service-connected lumbar strain. 2. Entitlement to a temporary total evaluation based on the need for convalescence following surgical treatment of a service-connected disability. 3. Entitlement to a rating in excess of 10 percent for residuals of a lumbar strain prior to October 20, 2009. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to November 1976. This matter is on appeal from rating decisions in December 2004 and August 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, and a rating decision in December 2009 by the RO in Seattle, Washington. The Veteran testified before the undersigned Veterans Law Judge in March 2009. A transcript of the hearing is of record. This appeal was remanded by the Board in May 2009, July 2011 and December 2012 for further development and is now ready for disposition. While the Veteran has submitted additional evidence since the most recent adjudicative decisions, the Board has reviewed this evidence and finds that it is has been previously reviewed by RO. Therefore, review of the claims at the point would not result in any prejudice to the Veteran. FINDINGS OF FACT 1. Degenerative disc disease of the lumbar spine was not shown in service or for many years thereafter, and is unrelated to active duty service or to a service-connected disability. 2. The Veteran was not service connected for a degenerative disc disease in the lumbar spine at the time of his surgeries in 2005 and 2009 or for the periods of convalescence following those surgeries. 3. The issue of entitlement to a rating in excess of 10 percent for residuals of a lumbar strain prior to October 20, 2009 was adjudicated by the Board in July 2011 and is now final. CONCLUSIONS OF LAW 1. Degenerative disc disease of the lumbar spine was not incurred in or aggravated by service, and is not related to service or to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). 2. The criteria for a temporary total rating due to treatment for a service-connected disability requiring convalescence have not been met. 38 U.S.C.A. §§ 5107, 7104 (West 2002); 38 C.F.R. § 4.30 (2013). 3. There is no longer a justiciable case or controversy on the issue of entitlement to a rating in excess of 10 percent for residuals of a lumbar strain prior to October 20, 2009. 38 U.S.C.A. § 7105)(d)(5) (West 2002 & Supp. 2013); 38 C.F.R. § 20.101 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (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). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in February and June 2005 which fully addressed all notice elements and were sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. While the June 2005 letter was not provided prior to the initial adjudication of the appellant's service connection claim, this is not prejudicial because, after this notice was sent, the issue was readjudicated, and the Veteran was sent a statement of the case in September 2005. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). There are additional notice requirements for claims to reopen based on new and material evidence, such as notifying a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, however, the Board has previously decided to reopen the claim, and any notice defect in this regard is of no prejudice to the Veteran. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). After a careful review of the file, the Board finds that all necessary development has been accomplished, and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records, and the Veteran submitted treatment records from a private facility as well as his own statements in support of his claim. VA opinions with respect to the issues on appeal were also obtained in October 2009 and January 2013. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA opinions obtained in this case are more than adequate, are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was also afforded a hearing before the undersigned Veterans Law Judge in March 2009. The hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Notably, the Veteran was specifically asked about the nature and onset of his back and spine symptoms, and how he believes that they are related to active duty. Finally, it is noted that this appeal was remanded by the Board in May 2009, July 2011 and December 2012 for further development. Specifically, in May 2009, the Board instructed the RO to request records for all private treatment the Veteran has received since January 2006 after obtaining his authorization, and to afford him a new VA examination. In July 2011, the Board remanded the claim in order to obtain a VA opinion as to whether the Veteran's lumbar spine disorder was related to his service-connected back strain. In December 2012, the Board determined that the previously acquire VA opinion was inadequate, and required that a new opinion be obtained. The Board is now satisfied there was substantial compliance with these Remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, VA opinions were obtained in October 2009 and January 2013, which the Board finds adequate for adjudication purposes. The RO also obtained additional private treatment records. After the required development was completed, these issues were readjudicated and the Veteran was sent a supplemental statement of the case most recently in March 2013. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran is claiming entitlement to service connection for degenerative disc disease of the lumbar spine. It is his contention that the motor vehicle accident he experienced in December 1973 caused this condition in addition to his already service-connected lumbar strain. He has more recently argued in the alternative that his service-connected lumbar strain has contributed to his lumbar spine symptoms, and that service connection should also be granted on this basis. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In some cases, the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a). As is relevant here, degenerative disc disease and arthritis is considered a chronic disease under 38 C.F.R. § 3.309(a), and may be service connected under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection will also be presumed for such disorders if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2013). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Finally, 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 or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, service connection for the Veteran's degenerative disc disease is not warranted. First, according to his service treatment records, the Veteran was involved in a motor vehicle accident on December 28, 1973. In early January 1974, he sought treatment for symptoms low back pain with chest pain when breathing deeply. However, he denied any direct trauma to the back, and exhibited spasms in the only right upper-vertebral area upon examination. There were no low back or lumbar spine complaints. The resulting diagnosis was limited to a muscle strain. Approximately two weeks later, the Veteran was again evaluated for complaints of pain in the right scapular region, but X-rays taken on that occasion were negative. Throughout January and February 1974, he received only heat treatment and diathermy, and another X-ray performed in late February 1974 did not indicate any joint or bone abnormality. While he was again evaluated in March 1974, his pain symptoms were limited to the right scapular region. Thus, although the Veteran was treated for symptoms of back pain in service (and he has already been service-connected for these symptoms), there is no clinical evidence of a disorder to the lumbar spine itself, such as degenerative arthritis or a spinal disc disorder of any sort. In fact, his in-service symptoms have been largely confined to a wholly separate area of his back. Significantly, while the Veteran's separation physical examination in September 1976 noted the December 1973 motor vehicle accident and subsequent back pain, the evaluating physician noted that the Veteran's symptoms were limited to muscle spasm type pain in the T1 to L1 region. These observations are consistent with the treatment he received in 1974. In fact, despite the Veteran's complaints of back pain, the post-service evidence does not reflect symptoms related to a lumbar spine disorder until he was evaluated in August 1987 for what was characterized as "possible" degenerative disc disease. This provisional diagnosis was confirmed one month later by an MRI that observed a dessicated L5-S1 disc. However, the Board emphasizes that this first indication of actual pathology to the lumbar spine is approximately eleven years after he left active duty. As such, a continuity of symptoms is not shown based on the clinical evidence. In addition to the documented post-service treatment records, the evidence includes the Veteran's statements asserting continuity of symptoms. The Board is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 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, 469 (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"). In this regard, it is true that the Veteran is competent in some cases to self-diagnose some disorders despite his status as a lay person. However, he is not competent diagnose actual lumbar pathology such as degenerative disc disease, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature." See Jandreau, 492 F.3d at 1377, n.4. Nevertheless, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Specifically, the Board notes that the Veteran has been evaluated for back symptoms fairly regularly since he left active duty, but none of these evaluations indicated actual pathology to the spine. For example, at a VA examination in March 1977, the examiner noted the Veteran's history of muscle spasm complaints in 1973 and 1974, but did not observe any lumbar spine symptoms. To the contrary, an X-ray taken at that time indicated vertebral bodies that were well aligned and disc spaces that were well maintained. Another evaluation in April 1982 noted a lumbar strain by history, and there was again no radiographic evidence of a spinal disorder. Notably, when the Veteran underwent a back evaluation to assess his ability to perform as a postal employee, he specifically denied that he continued to have any back symptoms since his treatment ended in 1974. Therefore, given the lack of any disorder or even symptoms related to a lumbar spine disorder in service or for many years thereafter, continuity is not established based on the clinical evidence of record or the Veteran's statements. As an additional matter, as the evidence does not indicate that either degenerative disc disease or degenerative arthritis was shown to a compensable level within a year of his separation from active duty, service connection is also not warranted on a presumptive basis under 38 C.F.R. § 3.307 and 3.309. Next, service connection may also be granted when the evidence establishes a medical nexus between his current symptoms and either active duty or to his service-connected back strain. In this case however, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty, despite his contentions to the contrary. Specifically the Board places significant value on the opinions of VA examiners who evaluated the Veteran's symptoms in October 2009 and January 2013. In the October 2009 examination, the Veteran stated that the treatment he received in service for his back improved his symptoms, but they persisted "off and on" since that time. He also specified that his symptoms were in the low back area. The examiner also noted that the Veteran had recently undergone spinal disc surgery the previous March, and the Veteran indicated that his symptoms improved somewhat. After a review of the claims file, which was discussed in detail in the VA examiner's report, the examiner diagnosed degenerative disc disease of the lumbar spine, but opined that the Veteran's degenerative disc disease was less likely than not related to active duty service. In providing this opinion, the examiner reflected that there was no clinical evidence of degenerative disc disease until many years after the Veteran left active duty service. Indeed, the Veteran denied any such symptoms in 1982. Instead, the examiner believed that the Veteran's lumbar spine symptoms were likely a consequence of successive minor stresses to the lumbar spine over a long period of time working and for the Postal Service, which involved regularly lifting heavy packages. After the Veteran raised the argument that his lumbar spine disorder was related at least in part to his service-connected back strain, the claims file was forwarded to a new VA examiner in January 2013 for an opinion on this question. Through a review of the claims file, the examiner noted the Veteran's prior diagnoses of degenerative disc disease, and also observed that Veteran had undergone spinal disc surgical procedures in both 2005 and 2009. However, the VA examiner opined that it was less likely than not that the Veteran's service-connected back strain contributed in any way to his degenerative disc disease. In providing this opinion, the examiner pointed out that muscle strains are common injuries that involve excessively elongated, but the recovery period does not typically last longer than 10 weeks, even in the most severe occasions. Given the nature of muscle strains, the Veteran's strain was very unlikely to have an impact on an injury that did not appear until many years later. The Board finds that these opinions are adequate for evaluation purposes. Specifically, the examiners reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. In support of his claim, the Veteran has provided opinions by a private physician in November 1988 and again in August 2004. In the 1988 statement, this physician opined that the Veteran's degenerative disc disease was "directly related" to his motor vehicle accident in December 1973. This physician's August 2004 opinion is substantially the same. In both cases, the physician did not provide any underlying rationale for his opinions. When presented with conflicting evidence, it is the Board's responsibility to weigh the probative value of these opinions against the VA examiner's opinions provided above. The Board may appropriately favor the opinion of one competent medical authority over another. Owens v. Brown, 7 Vet. App. 429 (1995). Although the Board may not reject medical opinions based on its own medical judgment, the weight of a medical opinion is diminished where it is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. Obert v. Brown, 5 Vet. App. 30 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Colvin v. Derwinski, 1 Vet. App 171 (1991). In this case, the Board concludes that the probative weight of the private opinions is outweighed by the VA examiners' opinions provided in October 2009 and January 2013. Specifically, while the VA examiners have provided opinions that are supported by thorough reasons and bases, the private physician's opinions are completely unsupported by any evidence in the claims file. When comparing the opinions, the Board is unable to determine why the private physician believes that a relationship exists between the Veteran's current disorder and his active duty service. The VA opinions, on the other hand, have adequately explained the medical principles that support their conclusions. It is also unclear that the private physician has ever reviewed the Veteran's medical history. In any event, he appears to have relied exclusively on the Veteran's own statements, and failed to address the salient fact that degenerative disc disease was not shown for over 10 years after he left active duty. While reliance on solely the Veteran's statements does not diminish the value of the opinion per se, the Board has already determined that the Veteran's statements are not credible and not supported by the objective evidence of record. Therefore, the Board affords more probative value to the VA examiners' opinions over the opinions provided by the private physician. The Board has also considered the statements made by the Veteran relating his degenerative disc disease to his active service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when "(1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his degenerative disc disease. See Jandreau, 492 F.3d at 1377, n.4. Because degenerative disc disease is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's degenerative disc disease are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Total Disability Rating Based on Convalescence In May 2005, the Veteran also claimed entitlement to a temporary total evaluation total disability based on a period of convalescence following surgeries to the lumbar spine in both 2005 and 2009. See 38 C.F.R. § 4.30(a) (2013). A temporary total disability rating will be assigned, effective from the date of a hospital admission and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge, if the hospital treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. Id. However, for the reasons stated above, the Veteran is not service connected for his lumbar spine disorder. Accordingly, he cannot receive compensation under § 4.30 for the period of convalescence that resulted. In other words, as the Veteran did not meet an essential legal requirement under the governing regulation - that the treatment in question must have been for a service-connected disability - he has not presented a claim upon which relief can be granted. In such cases where the law is dispositive of the claim, as is the case here, the claim must be denied as a matter of law, because of the absence of legal merit or lack of entitlement under the law. The appeal is accordingly denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), Increased Ratings As noted previously, the Veteran has been service connected for a back strain since 1977 with a 10 percent disability rating. In August 2004, he submitted a claim seeking an increased rating for this disorder. This claim was denied in December 2004 and ultimately appealed to the Board, which remanded the issue in May 2009 for additional development. However, in December 2009 and during the course of this development, the RO issued a rating decision granting 40 percent rating for the period since October 20, 2009. Although the Veteran's benefits were increased during the course of the appeal, he was not granted the maximum rating allowable. As a consequence, the issue remained in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Corchado v. Derwinski, 1 Vet. App. 160 (1991). A supplemental statement of the case was sent to the Veteran in December 2009, and the Board determined in July 2011 that a rating in excess of 10 percent prior to October 20, 2009 or a rating in excess of 40 percent since October 20, 2009 was not warranted. The Board may presume that the Veteran received a copy of this decision, and there is no indication that he submitted a timely appeal of the decision to the Court of Appeals for Veterans Claims. See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) (it is presumed that government officials "have properly discharged their official duties"). As such, the Board's July 2011 decision is final. However, the Board has received what appears to be a temporary file indicating that the Veteran submitted a notice of disagreement to the RO's December 2009 decision, asserting that he is entitled to a 40 percent rating for his back strain from the time he submitted his claim in December 2004. The RO, apparently unaware that this issue was already on appeal, issued a statement of the case in August 2010. The Veteran submitted a VA Form-9 in response to the statement of the case in September 2010, and this issue was certified to the Board in August 2013. Since the issue of entitlement to an increased rating for his service-connected back disability was already in appellate status, the notice of disagreement submitted by the Veteran in December 2009 was not necessary. Moreover, despite the procedural steps that were taken since that time, the Board's July 2011 adjudication addressed the entire period on appeal and represents the final disposition of this claim. The Board notes that the temporary claims file included some treatment records, and recognizes that it would be prejudicial to the Veteran if the July 2011 decision was issued without review of records that were in VA's possession. However, the medical records in the temporary claims file were already in the claims file when the July 2011 decision was sent to the Veteran. Therefore, despite the fact that this issue was certified to the Board in August 2013, it is no longer on appeal, and must be dismissed. ORDER Service connection for degenerative disc disease of the lumbar spine, to include as secondary to a service-connected lumbar strain, is denied. A temporary total evaluation based on the need for convalescence following surgical treatment of a service-connected disability is denied. The issue of entitlement to a rating in excess of 10 percent for residuals of a lumbar strain prior to October 20, 2009, is dismissed. ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs