Citation Nr: 1337248 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-00 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to an increased rating for bronchial asthma, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from May 1991 to March 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2010, a statement of the case was issued in November 2010, and a substantive appeal was received in December 2010. The Veteran presented testimony at a Board hearing in July 2011, and a transcript of the hearing is associated with his claims folder. The issue of an increased rating for bronchial asthma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's current lumbar spine degenerative disc disease, degenerative joint disease, and scoliosis are not causally related to his active duty service. CONCLUSION OF LAW The criteria for service connection for low back disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in October 2008. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. Service treatment records and VA medical records have been obtained. VA examined the Veteran for low back disability in September 2009; and afforded the Veteran the opportunity to give testimony before the Board. The September 2009 VA examination report was adequate, as it shows that the examiner considered the Veteran's claims folder and rendered a nexus opinion with a rationale based on review of the Veteran's medical history. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). All evidence of record, including any relevant evidence on Virtual VA, has been considered. Service treatment records show treatment for complaints of back pain in August and September 1992. In August 1992, the Veteran denied radiating pain, numbness, and tingling. His range of motion was within normal limits with tenderness at L5-S1 but no spasm. In September 1992, he reported that his back felt tight when he bent over and that otherwise, there were no complaints. He had a good range of motion with some discomfort at the end range of flexion. Neurology was within normal limits. Post-service, on VA evaluation in December 1994, the Veteran complained of the onset of low back pain about 1 week beforehand. Right shoulder pain was also reported. The Veteran stated that he was lifting weights prior to the onset of pain. No low back clinical findings or diagnoses were reported. Musculoskeletal strain of the right shoulder was assessed. In December 1995, the Veteran filed a claim for VA compensation for asthma and bronchitis. A February 1996 report of VA examination reflects a history of neck pain for the last four years with pain radiating into the right shoulder. There was no mention of any low back complaints or clinical findings. On private evaluation in April 1997, the Veteran complained of lower back spasms of one week's duration. His back had full flexion. He had pain with twisting to the right side, and mild discomfort/spasm with extension. The assessment was low back spasms. A week later, he had continued pain complaints. Straight leg raising was negative bilaterally, and nerve status was intact. The assessment was lumbar strain. On VA evaluation in July 2003, the Veteran reported more than a 6-month history of worsening, sharp, intense pain over his right buttock, with radiation at times down to his distal leg. The assessment was sciatica. VA radiographic studies in August 2003 showed L5-S1 facet disease; osteophytosis of the sacroiliac joints; degenerative changes in the lower lumbar spine; and L3-S1 foraminal stenosis. On VA examination in September 2009, the Veteran's claims folder and medical records were reviewed. The Veteran indicated that low back pain had it onset about 20 years prior. He reported that it was of gradual onset, with no precipitating factor, and that it was getting worse. On examination, his posture was stooped and he walked with a cane. Flexion was to 60 degrees. Imaging studies showed mild scoliosis and early discogenic disease and spondylitic changes at the L2/L3 level. An April 2007 MRI had shown disc bulges at L3-4, L4-5, and L5-S1. The diagnoses were lumbar spine degenerative disc and joint disease, and mild scoliosis. The examiner's opinion was that the Veteran's low back disability was not caused by or a result of service. The rationale was that there was a lack of documentation of the chronicity of the condition until about 1997; there was no history of a triggering event or onset; he had done clerical work in service from 1991 to 1994; and service medical records revealed minimal treatment for lumbar strain. His degenerative disc and joint disease were the result of natural progression and not due to service. His scoliosis was not likely due to or aggravated beyond normal progression by service. Based on the evidence, the Board finds that service connection is not warranted for the Veteran's current low back disorders, lumbar spine degenerative disc and joint disease, and scoliosis. Although the record shows low back complaints in 1992 early in the Veteran's service, subsequent service treatment records show no continuing low back complaints. The low back pain he reported to VA medical personnel in December 1994 was reported by the Veteran himself to have had its onset one week before. The next documented evidence of low back pain was I April 1997. These medical records strongly suggest that the 1992 back complaints during service were acute in nature. The Veteran did not complain of low back pain again until December 1994, and it is significant that the December 1994 low back pain had its onset one week before. The Board has considered the Veteran's statements and hearing testimony regarding continuing low back pain since the low back complaints noted in 1992. However, there are various inconsistencies which greatly diminish the credibility of those statements and hearing testimony. For example, the Veteran did not report any ongoing low back problems throughout the remainder of his service although he had the opportunity to do so. In this regard, service treatment records from 1992 on show that the Veteran sought treatment for other disorders on a number of occasions. It is reasonable to believe that he would have also reported any ongoing low back complaints. Additionally, the Veteran did not include low back disability on his 1995 claim for asthma and bronchitis. This suggests that he did not believe he had any low back disability related to service at that time. Finally, a VA medical examiner after review of the record and examination of the Veteran, concluded that the current low back disorders were not due to service, explaining the reasons for such opinion. The Veteran argued during his July 2011 hearing that a June 2011 VA medical record which he submitted at that time was supportive of his claim. However, that medical record speaks about degenerative joint disease shown by X-rays in April 2005, which was years after service. It does not show that it was manifest in service or within 1 year of separation, or that it is related to service. In sum, the Board is compelled to conclude that the preponderance of the evidence is against the low back claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for low back disability is not warranted. To this extent, the appeal is denied. REMAND There was pulmonary function testing on VA examination in September 2009, but it is unclear whether the test results reported were from after the administration of bronchodilators for testing purposes. A VA examination which tests the Veteran after bronchodilators are administered for testing purposes, which indicates that this was the case, and which reports the information required to rate the Veteran's disability under Diagnostic Code 6602 is needed at this point. Beforehand, to ensure that the record is complete, any additional medical records of treatment the Veteran has received since October 2010, the date of the most recent VA medical record of treatment which is contained in the claims folder, should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Make arrangements to obtain all VA medical records of treatment the Veteran has received since October 2010 for bronchial asthma. 2. Thereafter, schedule the Veteran for a VA examination for bronchial asthma. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Post-bronchodilator pulmonary function testing should be performed, with the ensuing FEV-1 and FEV-1/FVC results being reported. The examiner should indicate whether the Veteran requires at least monthly visits to a physician for required care of exacerbations; and/or intermittent (at least 3 per year) courses of systemic (oral or parenteral) corticosteroids. 3. After the examination report is furnished, the RO should review it to determine whether it is fully responsive to the remand orders above. If it is not, it should be returned for completion. 4. Thereafter, the RO should review the expanded record and determine whether a higher rating is warranted for the Veteran's service-connected bronchial asthma disability. The Veteran and his representative should be furnished a supplemental statement of the case. After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs