Citation Nr: 1333867 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-12 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a back disability. ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2001 to June 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction over the case was subsequently transferred to the RO in Indianapolis, Indiana. When this case was most recently before the Board in January 2013, it was remanded for additional development. The case has since been returned to the Board for further appellate action. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT No chronic back disability was present in service or within one year of the Veteran's discharge from service, and no current back disability is etiologically related to service. CONCLUSION OF LAW A back disability was not incurred in or aggravated by active service, and arthritis of the back may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided with the notice required under the VCAA by letter mailed in November 2007, before the initial adjudication of the claim. The record also reflects that service treatment records (STRs) and pertinent post-service medical evidence have been obtained. Moreover, the Board notes that in January 2013 a letter was sent to the Veteran requesting treatment records identified by him or release authorization forms for such records and requested him to complete an appropriate form to corroborate his election of representation. No response was received. Therefore, the Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim. The Board also is unaware of any such outstanding evidence. In addition, the Veteran has been afforded an appropriate VA examination, and a medical nexus opinion has been obtained. Therefore, the Board is satisfied that originating agency has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. In sum, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and non-prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may 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 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis of the low back 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. U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contends that chronic back pain began following a car accident sustained during service and that his current back spasms and arthritis in his back are a result of the in-service injury. The Veteran's STRs show that he was seen for complaints of mid-back pain in April 2004 following a car accident in which he was rear-ended and pushed into the car in front of him. On examination, the Veteran had right trapezius muscle tenderness with bilateral paraspinous thoracic muscle spasm. He was treated with medication and warm/cold compresses. Of record, there is no other treatment of the back in service. In a July 2012 written statement, the Veteran indicated that he was still being treated for a lower back disorder. Likewise, an October 2012 written submission from the Veteran reported continuing symptomatology related to his back pain and spasms. The Veteran was afforded a VA examination in February 2011 in which he reported the aforementioned in-service accident and that back pain started two hours after it. X-rays showed normal thoracic spine. The examiner diagnosed lumbar strain. The VA examiner opined that the current disability of low back pain was less likely as not (less than 50/50 probability) caused by or a result of in-service injury, assuming that the injury as described occurred during service. The examiner stated that there was no neurological deficit pertaining to the back injury; no radiographic evidence of trauma to the back; however, ligament injury and/or mechanical problem related to spine abnormality of scoliosis may be the cause of low back pain. The Veteran was afforded a VA examination in July 2012 in which the examiner noted the diagnosis of thoracic sprain in 2004. The Veteran reported the aforementioned in-service accident. The VA examiner diagnosed early degenerative arthritis of the lumbar spine, mild lumbar levoscoliosis, and lumbar sprain. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner detailed the Veteran's in-service accident and subsequent tenderness to the mid back with bilateral paraspinous thoracic spasm. The examiner stated that on the current examination the Veteran was tender to touch from L2-L4 with associated bilateral paraspinous spasm. The examiner elaborated that February 2011 X-ray findings demonstrated a normal thoracic spine, mild levoconvex lumbar scoliosis, and "changes in the lower vertebral bodies may be due to early degenerative changes." The examiner stated that the Veteran's examination following his car accident documented thoracic spasm; however, his current symptoms involved his lumbar spine; there was no radiologic evidence of a thoracic spine condition. A mild levoconvex scoliosis was noted; the examiner stated that the cause of scoliosis was unknown or idiopathic in 80 percent of cases. The examiner opined that the X-ray findings may represent early degenerative arthritis which was more likely the result of the normal aging process rather than trauma; therefore, it was less likely as not that the Veteran's current back condition was due to or the result of middle back pain he experienced after a car accident during his military service. On review of the evidence, the Board finds the Veteran has back disabilities per his VA examination. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The Board notes that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board also notes that VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Therefore, the Board has considered statements by the Veteran as to the onset and symptoms of his back disabilities; but finds that to the extent that the statements conflict with the medical evidence, the Board has found the objective medical evidence to be more persuasive. Therefore, based upon thorough review of the record, the preponderance of the evidence establishes that a back disability was not present until more than one year after the Veteran's discharge from service; that his current back disabilities are unrelated to his active service; and the only medical opinions on the question of etiology are against the claim. Accordingly, the claim for service connection for a back disability must be denied. ORDER Entitlement to service connection for a back disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs