Citation Nr: 1335658 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-42 380 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for residuals of a low back injury. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The appellant had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Massachusetts Army National Guard from March 1977 to March 1983, including a period of ACDUTRA from May 1977 to August 1977. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision that, in pertinent part, denied service connection for residuals of a low back injury. The appellant timely appealed. In June 2013, the Board remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition to reviewing the appellant's paper claims file, the Board has surveyed the contents of his Virtual VA file. FINDING OF FACT The appellant's residuals of a low back injury were not exhibited during a period of ACDUTRA or INACDUTRA, and are not otherwise related to his National Guard service. CONCLUSION OF LAW Residuals of a low back injury were not incurred or aggravated in National Guard service. U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA should notify the appellant of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through a March 2008 letter, the RO notified the appellant of elements of service connection and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claim. VA's letter notified the appellant of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claim, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the March 2008 letter, the RO specifically notified the appellant of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the appellant's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the appellant. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claim on appeal, reports of which are of record and are adequate. The opinion expressed therein is predicated on a substantial review of the record and consideration of the appellant's complaints and symptoms. Therefore, it too is found to be adequate. The appellant has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. In this regard, the appellant is unable to recall the name and/or location of a hospital in Massachusetts in which he was treated for pneumonia during National Guard service in 1978; and the RO's attempts to obtain such records, to date, have been futile. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the appellant in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). With specific regard to National Guard and Reserve service, service connection may be granted for disability resulting from either disease or injury incurred in, or aggravated while performing, ACDUTRA. With respect to time periods of inactive duty training, service connection may only be granted for injury so incurred or aggravated, or for an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002); 38 C.F.R. § 3.6 (2012). The appellant's "Retirement Credits Record" for National Guard service shows that the only dates of ACDUTRA in 1978 were during two summer months from June 24, 1978 to July 8, 1978. Hence, the remainder of appellant's National Guard service in 1978, including his unit's deployment to Scituate, Massachusetts, during the 1978 winter blizzard, is shown as INACDUTRA. The appellant contends that service connection for residuals of a low back injury is warranted on the basis that he had fallen off of a two-and-a-half ton truck and hurt his back on an icy street, when he was deployed with his National Guard unit to Scituate, Massachusetts, during the 1978 blizzard. Specifically, the appellant stated that he was hospitalized and treated for pneumonia on the day after he had fallen off of the truck in 1978, while deployed during the 1978 winter blizzard; and that he was unaware of his back disability at the time. The appellant is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). National Guard treatment records, dated from July 1977 to July 1981, do not reflect any findings or complaints of low back pain. The appellant separated from the National Guard in March 1983. Post-National Guard records show that the appellant had injured his low back at work in August 1999, when he twisted while moving some jugs. At that time, he complained of low back pain and some pain that radiated into his left leg. MRI scans then revealed disc desiccation L5-S1, with central disc herniation exhibiting a posterior excursion of approximately 5-to-6 millimeters, causing only mild central canal stenosis; and L3-L4 and L4-L5 levels were unremarkable. The physician noted that all findings were superimposed upon mild-to-moderate degenerative facet disease at all levels examined. Diagnoses in April 2002 included lumbar herniated disc; lumbar radiculopathy; and low back pain. He underwent a left L3-L4 diskectomy in April 2003. Private treatment records, received in December 2004, show that the appellant continued to complain of low back pain radiating down the left leg. Chronic radiculitis was noted in September 2006. Following the Board's June 2013 remand, the appellant underwent a VA examination in July 2013 for purposes of determining the nature and etiology of his low back disability. The examiner reviewed the claims file and noted the appellant's medical history. The examiner revealed that the appellant had been treated in the Emergency Room of the Baystate Medical Center in October 1984, following a motor vehicle accident; and that X-rays taken of the lumbosacral spine at that time were negative. The diagnosis in 1984 was lumbosacral strain. Following examination in July 2013, diagnoses included degenerative disc disease and degenerative joint disease of the lumbar spine; and left L4-L5-S1 motor and left L4-L5 sensory radiculopathy, with moderate functional limitation. The examiner noted that the appellant's degenerative disc disease and degenerative joint disease were diagnosed in 1999, many years after the appellant's National Guard service. The examiner considered the appellant's statements of continuing low back pain since he fell off of a truck and onto an icy street in 1978. Nevertheless, the examiner opined that the appellant's current low back disabilities were less likely as not caused by or a result of, or medically related to, his National Guard service-to include his fall off of a truck and onto an icy street in 1978. In support of the opinion, the examiner reasoned that X-rays taken of the lumbar spine in October 1984 were normal and showed no pathology. The July 2013 examiner also commented that everyone who is physically active has had acute back pain, and that does not indicate a chronic condition; and that everyone with chronic or recurrent back pain, had a first episode of back pain. The initial episode is not necessarily related to the chronic disability. The examiner added that a back sprain or strain involves muscles and ligaments, and the appellant's current low back disabilities are the result of a degenerative process involving the discs and vertebral bodies. The examiner referenced AMA (American Medical Association) guidelines that noted degenerative changes due to age, genetics, and body weight were predominant predictors of degenerative disc disease. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the examiner has the medical knowledge to express a competent opinion, and, upon review of the appellant's specific history and applicable medical principles, determined that there was no evidence of chronic low back disability as a result of the injury in National Guard service. The opinion is accurate, is fully articulated, and contains sound reasoning that is not contradicted by the medical record. Therefore, the Board finds the July 2013 examiner's opinion to be highly probative for resolving the matter on appeal. To the extent the appellant contends that he injured his low back in National Guard service in 1978, his statements are competent and credible. However, he is not shown to have the medical expertise to diagnose or determine the etiology of his current low back disability. Degenerative changes of the spine is not something that would be readily apparent to a lay person. Physicians must rely on examination, medical history, and special diagnostic testing to render a diagnosis and determine etiology. In this case, the Board finds credible, competent and probative the appellant's report of falling off of a truck and onto an icy street during the 1978 blizzard. However, the July 2013 opinion indicates that the appellant's injury in National Guard service did not result in chronic low back disabilities; and that his current low back disabilities had their onset many years after the appellant's National Guard service. This is highly probative evidence against finding a nexus between any present low back disability and injury during National Guard service. In this case, the competent evidence is against finding that the appellant's current low back disabilities are linked to his National Guard service. A preponderance of the evidence is therefore against a finding that the appellant's low back disabilities either had their onset during National Guard service or are related to his fall off of a truck and onto an icy street during the 1978 blizzard. The reasonable doubt doctrine is not for application. Thus, service connection for residuals of a low back injury is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for residuals of a low back injury is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs