Citation Nr: 1335566 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-26 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1985 to June 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. In October 2012, the Board remanded this issue for further development. FINDING OF FACT The Veteran's current lumbar spine disability did not have onset during active service, did not manifest within one year of separation from active service, and is not etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131,1137, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307(a), 3.309(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in December 2007. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent February 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination and medical opinion. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish service connection for a 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In some cases, service incurrence and relationship to service may be established through a demonstration of continuity of symptomatology for certain specific chronic disabilities. 38 C.F.R. § 3.303(b) (2013); 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 (1997). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for chronic disabilities listed in 38 C.F.R. § 3.309(a) (2013). Arthritis is considered a chronic disease. 38 C.F.R. § 3.303(b) (2013); 38 C.F.R. § 3.309(a) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disability. 38 C.F.R. § 3.303(a) (2013). Moreover, service connection will also be presumed for chronic disabilities, such as arthritis, if manifest to a compensable degree within one year after separation from service. 38 C.F.R. §§ 3.307, 3.309 (2013). The Veteran contends that she injured her lower back during active service and that her current lumbar spine disability is the result of that injury. The Veteran's service medical records show that she complained of low back pain in June 1986 and January 1989. The June 1986 treatment record notes numbness of the mid-back with no history of trauma reported. At that time the Veteran stated her boyfriend popped her back a week prior in an attempt to alleviate an ache. The January 1989 treatment record notes the Veteran was there due to an unidentified injury on the preceding Friday. The Veteran's service medical records are otherwise negative for any complaints or diagnoses of lumbar spine disabilities. Private treatment records from March 2005 to February 2007 have several complaints of shoulder and knee issues. However, there are no complaints of back pain in those records. The first post-service treatment note for back pain appears in September 2007. An x-ray was negative for strain and no fracture was noted. The physician did note a bone spur. The September 2007 treatment notes reflect that the Veteran reported back pain, no injury, and good relief on medication. In October 2007 and May 2008 VA outpatient treatment reports, the Veteran reported ongoing back pain controlled with medication. In May 2008, the Veteran was provided a VA examination of the lumbar spine. During the examination the Veteran reported that in 1988, while on active duty, she tried to lift a water buffalo and strained her knees and back. She stated she did not seek medical treatment at that time. X-rays showed mild degenerative joint disease at L3-4. The examiner diagnosed lumbar degenerative joint disease at L3-4. The examiner opined that it was a less than 50 percent probability the Veteran's lumbar spine disability was caused by or a result of military service. The examiner did not provide any rationale for the conclusion that lumbar degenerative disc disease was not caused by or a result of active service. As a result the Board remanded the issue so that VA could obtain any VA treatment reports dated since May 2008; and the Veteran could be scheduled for an examination with a medical doctor with expertise in treating disabilities of the spine. The VA treatment records since May 2008 have been reviewed. Those records have annotations in May 2008, May 2009, September 2009, and May 2010 of low back pain that was effectively treated with pain medication. In November 2012, the Veteran was provided another VA examination for the lumbar spine. The examiner noted the Veteran's report that she injured her back either in the later part of 1987 or early 1988 while pushing and pulling a trailer. On examination, range of motion after repetitive use testing was flexion 90 degrees or greater, extension 30 degrees or greater, left and right later flexion 30 degrees or greater, right and left later rotation 30 degrees or greater. The Veteran reported flare-ups with over use and work such as car washing resulting in increased pain relieved with medications, hot showers, and rest. There was no functional loss or functional impairment of the thoracolumbar spine and no muscle spasms. After physical examination and x-ray studies, the examiner diagnosed degenerative disc disease of the lumbar spine with no evidence of radiculopathy or myelopathy. The examiner opined that there was a less than 50 percent probability that the Veteran's lumbar spine disability was incurred in or caused by an in-service injury. The examiner's rationale was based on review of the Veteran's service treatment records, the history provided by the Veteran, and the physical and neurological examination. The examiner noted that based on the Veteran's report of injury she would have had a series of visits to the medical clinic with light duty and limitations of duty for a couple of weeks or more. The service treatment records documented two reports of back pain. The fact that the Veteran did not report the back injury at discharge also factored into the opinion. The examiner stated that back injuries of that nature are not something that can avoid evaluation by a qualified professional. Additionally, the examiner stated that the Veteran's work history with the federal prison system was also a factor in the opinion and that it was highly probable that the Veteran sustained the injuries causing her lumbar spine disability after service. According to the Veteran, in the mid and late 1990s she sustained serious injuries to both shoulders resulting in rotator cuff surgery due to carrying food trays. The examiner stated that work would not have been possible if the Veteran had a bad back due to military trauma. The preponderance of the evidence of record shows that the Veteran's currently diagnosed lumbar spine disability is not related to military service. The May 2008 and November 2012 VA examiners concluded that the Veteran's current disability had a less than 50 percent probability of being due to an in-service injury. A September 2007 x-ray of the lumbar spine done under the direction of the Veteran's private primary care provider, Dr. Campbell, showed a bone spur on L4. In a February 2008 statement from the Veteran, she reported that she asked the doctor how a bone spur developed and was told that it could be from an old injury. The Veteran stated that she knew that the bone spur must be from the in-service incident with the truck and water buffalo hitch at Ft. Hood, Texas. However, Dr. Campbell did not make any reference to the in-service incident or any relationship to the bone spur in the treatment record. A July 2008 MRI requested by Dr. Campbell, showed some annular tears at L3-L4 and L4-L5 levels with some disc space desiccation and narrowing. However, Dr. Campbell did not comment on the etiology of the diagnosis. Additionally, a January 2013 MRI of the lumbar spine confirmed the Veteran's lumbar spine disability. However, there was no mention of etiology. The Veteran has reported that she did not seek more medical treatment in service because her squad leader told her she might get medically discharged. Because she did not want to be discharged in that way she performed her duties as usual. The Veteran also stated that she didn't mention her back upon discharge because the Non-Commissioned Officer in Charge (NCOIC) told her it was too late. However, as the November 2012 examiner stated, a back injury as reported by the Veteran would have resulted in a series of visits to the doctor and light duty for several weeks. Furthermore, according to the examiner, the Veteran would not have been able to perform her required duties after service at a federal prison with such a back injury. The Veteran submitted lay statements supporting her claim for service connection for her current lumbar spine disability. In a letter dated February 2008, J. G. states that she worked with the Veteran at the prison. J. G. stated that she noticed the Veteran often took ibuprofen and when she asked the Veteran about it she was told it was for an old war injury. To the extent that the Veteran's statements discuss the etiology of her lumbar spine disability, her statements alone are not sufficient to prove they are related to military service. Medical diagnosis and causation for a lumbar spine disability involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. As they are laypersons and are not shown to have medical training, the Veteran and J.G. are not competent to make a determination that a lumbar spine disability is related to military service. Barr v. Nicholson, Vet. App 303 (2007). An additional lay statement was provided by C.O., who served with the Veteran at Ft. Hood, Texas. C.O. did not witness the incident but recalled the Veteran telling her about what happened. The Veteran told C.O. that while towing the water buffalo the trailer became disconnected from the truck, the Veteran and the driver pulled over to the side of the road and the Veteran reconnected the trailer to the truck. C.O. states that the Veteran seemed upset about the incident but did not recall having any further conversations about the incident. That lay evidence does not address or relate the Veteran's current disability to an in-service injury. The Board finds the preponderance of the evidence is against the finding that any current low back disability was incurred in or aggravated by service, or that any arthritis manifested to a compensable degree within one year following separation from service. The Board has considered the service treatment records, post service treatment records, VA examiners' opinions, Veteran's statements, and lay statements. The Board finds that the opinions of the VA examiners are the most persuasive evidence in this case because of the examination of the Veteran and opinions provided by those with medical training. There is no contrary competent medical evidence of record. There is no evidence of arthritis manifesting within one year of separation from active service. Therefore the presumptive provisions for service connection for chronic diseases are not for application in this case. Accordingly, the preponderance of the evidence of record is against a finding that the Veteran's currently diagnosed lumbar spine disability is related to service. Therefore, service connection for a lumbar spine disability is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for lumbar spine disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs