Citation Nr: 1335936 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 04-20 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. After remanding the matter in July 2007 and October 2008, the Board denied the claim in May 2009. In December 2009, the Board vacated the May 2009 denial and remanded the claim for further development. The claim was remanded again in September 2010, June 2012 and May 2013. The Veteran was scheduled for a videoconference hearing before the Board in September 2013, but he failed to report for the hearing and has not requested that the hearing be rescheduled. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file include an October 2013 informal hearing presentation and a March 2013 Supplemental Statement of the Case. The remaining documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In this regard, the documents in the VVA file include VA treatment records dated from July 2012 to July 2013 that were not reviewed by the RO. This evidence is not accompanied by a waiver of RO consideration, permitting the Board to consider such records in the first instance. However, the Board notes that the VA treatment records (some of which note current findings of low back disability but offer no nexus opinion) address matters not in dispute, and are not pertinent to the remaining question in this matter. As will be discussed below, current low back disability has already been established; therefore, the evidence does not have to be referred to the RO for review. See 38 C.F.R. § 20.1304(c). FINDING OF FACT A low back disability was not present during service; arthritis of the low back was not manifested within one year after service, and any current low back disability is not etiologically related to service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by active service and service incurrence or aggravation of arthritis of the low back may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). 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. The Veteran was mailed letters in August 2002, August 2005, and March 2007 advising him of what the evidence must show and the respective duties of VA and the claimant in obtaining evidence, as well as the appropriate notice with respect to the disability-rating and effective-date elements of the claim. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. See March 2013 Supplemental Statement of the Case. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). VA has also complied with its duty to assist the Veteran in the development of his claim. In this regard, the Board notes that all available service treatment records (STRs) and post-service treatment records were obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; and, the Board is also unaware of any such evidence. The Veteran has also been afforded appropriate VA examinations to determine the etiology of his claimed low back disability. Most recently, as directed by the June 2012 Board remand, a VA examination was provided in August 2012 so as to ascertain whether any currently-diagnosed low back disability is etiologically-related to service, specifically to include the Veteran's time spent fighting a fuel tank fire during service. The examination and a March 2013 addendum opinion included the requested opinion. Accordingly, the Board finds that there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claim. Service Connection 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, 3.304. Service connection 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). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that arthritis is listed as a chronic disability under 38 C.F.R. § 3.309(a); therefore this disability may be subject to service connection based on continuity of symptomatology. Moreover, where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis 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. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). 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 the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; 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. The Board has thoroughly reviewed all the evidence in the Veteran's claims file, including evidence in VVA. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. In his August 2002 claim, the Veteran stated that he has a lower back disorder that began in January 1968. In a September 2002 statement in support for a claim for service connection for post traumatic stress disorder, the Veteran elaborated that around January 1968 during the Tet Offensive he was stationed at the China Beach motor pool in DaNang. A fuel tank exploded after it was hit by a rocket. The Veteran stated that he spent the entire night fighting the fire and that the combination of dragging heavy cables through loose sand in an urgent situation strained his lower back. He added that his back pain has increased year after year. The Veteran's STRs, including a September 1968 separation examination report, are negative for complaints or findings related to a low back disability or injury. A July 1970 Navy Reserve Report of Medical History shows that the Veteran checked a box that indicated he specifically denied having ever had or currently having any recurrent back pain. In addition, this Report of Medical History contained a statement from the Veteran saying that "as far as [he] knew, [he] was in very good health." In an April 1993 letter, Dr. K, the Veteran's chiropractor, stated that he had been treating the Veteran for neuromuscular conditions. He noted that the Veteran should receive two to three therapeutic massages each month to help manage muscle tightness and stress. A September 2002 VA X-ray report notes that the Veteran was suffering from back pain; diagnosis was degenerative disc disease. An October 2003 VA treatment record shows that he continued with chronic low back pain and had changed jobs where he was now unloading 2 trucks per week and stocking shelves. Subsequent VA treatment records dated through 2013 show that the Veteran continued to receive treatment for chronic back pain. The treatment records do not indicate the length of the Veteran's past history of back pain. They do not reference any in-service injury, nor do they relate the Veteran's history of back pain to service. In statements received in 2005, the Veteran's mother and brother essentially stated that the Veteran had no back problems prior to service, but complained of pain ever since his discharge from service. In December 2005, VA informed the Veteran that verification of the fuel tank explosion which occurred during the Tet Offensive at the China Beach motor pool had been received. A January 2009 VA examination report notes that the Veteran displayed painful range of motion of the back and tenderness. The examiner diagnosed lumbago with sacroiliac joint pain radiation and opined that it is less likely as not that the lumbago is related to active military service. The examiner reasoned that there are no records of a lumbar spine injury in Vietnam and that the Veteran's entrance examination stated that he worked as a laborer and equipment operator prior to service. There were no in-service complaints about his back. The examiner also noted that the Veteran continues to ride motorcycles which may increase his back discomfort. In a March 2010 addendum, a VA physician, after reviewing the records, found "nothing [in the records] to connect his [the Veteran's] back condition to service without mere speculation." An October 2010 VA examination report notes a diagnosis of degenerative disc disease with mild loss of function. The examiner opined that the Veteran's current lower back condition is less likely related to his military service as there is no evidence of any treatment or any trauma or injury to his lower back during such service. The examiner noted that it is more likely that the Veteran's current back condition is related to his occupation and the normal wear and tear process of age. An August 2012 VA examination report notes the Veteran's reported history of back pain since pulling cables in service; he denied receiving any treatment in service. After examining the Veteran and reviewing the claims file, the VA examiner stated the Veteran's current back disability was less likely than not incurred in or caused by service, to include the claimed in-service injury described by the Veteran. The examiner noted that there was no documentation of any injury in service. The examiner further opined that with time, obesity and post-military vocation, the Veteran developed degenerative disc disease of the lumbosacral spine. In a March 2013 addendum opinion, a VA physician reviewed the claims file, to include the Veteran's contentions of injuring his back after spending a night in service pulling fire trucks into position with wrecker cables. The VA physician stated that the Veteran's current degenerative disc disease of the low back "was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, to include history of dragging a heavy cable through the sand on the night he was fighting a fire while in active military service." The VA physician provided the following rationale for his opinion: There is no history of back problems, and no abnormalities of the thoracolumbar spine noted on any of the Veteran's physical examinations. There are no documented evaluations or complaints of back pain while the Veteran was on active duty, or in the year following the Veteran's release from active . . . service. As noted in the Veteran's statement: "the back pain has nagged him all his adult life, despite chiropractic care, physical therapy, heat therapy, etc. As a result of the back pain he is no longer able to hold a job." Guidance from [the Board] states the Veteran's [sic] is considered competent in reporting increased back pain since an in-service injury to his low back. Veteran's current thoracolumbar spine diagnosis is degenerative disc disease at L4-5 and L5-S1. According to the examiner, the etiology of the Veteran's back disorder is "Over time, with obesity, and post military vocation, Veteran developed degenerative disc disease of the lumbosacral spine." In the Board's opinion, the preponderance of the evidence is against the claim. The Veteran is not contending, and the STRs do not reflect, that he sought treatment for his low back during service. Rather, the Veteran reports that he sustained a low back injury during his active service while fighting a fire. He is competent to report symptoms that he experienced during service. The Board has no reason to doubt the Veteran's credibility with respect to these matters. The fact remains, however, that there is no medical evidence suggesting that he had a low back disability in service, that he manifested arthritis within one year of his discharge from his active duty, or that any current low back disability is related to his service. With respect to the question of whether dragging heavy cables while fighting a fire in service caused the current low back disability, the Board notes that this is a medical question that the Veteran, as a lay person, is not competent to answer. No medical professional has provided an opinion linking the current back disability to service, to include an injury sustained in service as described by the Veteran. In August 2012, a VA examiner reviewed the claims files and examined the Veteran, concluding that it is less likely than not that injury in service caused the current low back disability. Rather, the Veteran's age, obesity and post-service work caused the current back disability. In March 2013, a VA physician agreed with this finding after reviewing the evidence of record. The Board has found these opinions to be highly probative since they were rendered after a review of the Veteran's pertinent history and is well supported. The Board has also considered the Veteran's statements and the other lay evidence of record from the Veteran's mother and brother. To the extent that the Veteran is contending that symptoms of his back disability began during his active service and have continued thereafter, the Board must conclude that the Veteran is not credible. In this regard, the Board notes that a July 1970 Navy Reserve Report of Medical History shows that the Veteran checked a box that indicated that he specifically denied having ever had or currently having any recurrent back pain. As for attributing the current diagnosis to an injury in service, the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation to the facts of this case. Nothing in the record demonstrates that he received any special training or acquired any medical expertise. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Moreover, his opinion is outweighed by the negative VA medical opinion provided by a physician. In light of these circumstances, the Board must conclude that the preponderance of the evidence is against the Veteran's claim. ORDER Service connection for a low back disability is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs