Citation Nr: 1337319 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-35 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for mild degenerative joint disease of the spine (a low back disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served in the Army National Guard, with periods of active duty for training, including from April 1978 to July 1978, December 1984 to June 1985, and from July 1986 to August 1986. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October 2006 and December 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In those decisions, the RO denied the reopening of a previously denied claim of service connection for a low back disability because the evidence submitted was not new and material. In February 2008, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is of record. In a December 2011 decision, the Board reopened the claim of service connection for a low back disability and remanded the matter back to the RO for additional development of the record. 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 have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. FINDING OF FACT Degenerative joint disease of the lumbar spine did not have its onset during service, and it is not the result of any injury, disease or other event in service, including a motor vehicle accident (MVA) during a period of active duty for training (ADT) in July 1986. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § § 3.6, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance 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). In addition to the above directives, the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006), addressed directives consistent with VA's duty to notify with regard to new and material evidence. In order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. Despite any defect in the notice provided to the veteran regarding new and material evidence, the case was subsequently reopened by the Board; thus, any defect in this regard results in harmless error. The Veteran was informed in a September 2006 letter of the evidence needed to substantiate a claim for service connection, the steps VA would take to assist him in obtaining supporting evidence and the steps he was responsible for taking to support his claim, and he was informed how VA determined a disability rating and an effective date. The notice letter did not specifically inform the Veteran of the difference between claims based on active duty, and claims based on ADT; however, given that the evidence confirms that the MVA in July 1986 actually occurred during a period of ADT, the issue here turns on whether a nexus between the Veteran's current disability and the MVA in July 1986 is established, and is not altered because the incident took place during a period of ADT as opposed to a period of active duty. Thus, the lack of notice regarding claims based on ADT is harmless error and non-prejudicial. The Veteran has not contended that the notice he was provided was untimely or insufficient in any way, and he has not contended that his claim has been prejudiced by the notice he received. VA has obtained service treatment records and service personnel records. A VA medical examination was provided in December 2011. The examination report contains a medical opinion with rationale based on a review of the record, a physical examination of the Veteran and the examiner's medical expertise. The examination is therefore adequate. As noted above, the claim was reopened and remanded in December 2011. By way of a December 2011 letter, the RO requested that the Veteran provide one authorization form for each health care provider who treated him for a back disability or provide the records directly to VA. A VA examination was also conducted which was adequate. Accordingly, the agency of original jurisdiction (AOJ) substantially complied with the December 2009 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran appeared for a hearing before a Decision Review Officer at the RO, and he was afforded an opportunity to appear for a Board hearing. The Decision Review Officer identified the issue on appeal and the Veteran provided testimony concerning the accident in service and symptoms thereafter. The Veteran has not asserted that there was any prejudice with respect to the hearing. All known and available records have been obtained, to the extent possible. The claims file reflects that statements and treatment records in Spanish have been translated to English. The duty to notify and assist has been satisfied and the Board may proceed without prejudice. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table). Insofar as the appellant presents an argument of continuity of symptomatology, the U.S. Court of Appeals for the Federal Circuit recently held in Walker v. Shinseki that service connection can be based on continuity of symptomatology only with respect to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir. 2013). Moreover, the presumption of service connection is not applicable to periods of active duty for training and inactive duty for training. See Smith v. Shinseki, 24 Vet. App. 40 (2010). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes active duty, any period of active duty for training (ADT or ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (IDT or INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 1106; 38 C.F.R. § 3.6(a). For veterans who have achieved "veteran" status through a prior period of service, as is the case here, and claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness at entry applies ONLY when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). Thus a claimant who has "veteran" status through a prior period of active duty and wishes to apply for a disability that was incurred during a period of ACDUTRA must have had an examination prior to entering the period of ACDUTRA during which the injury or disease occurred for the presumption of soundness to apply. The examination must reveal no preexisting disabilities. Service connection may 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). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). In determining whether service connection is warranted for a claimed disability, VA adjudicators have the responsibility of determining whether the evidence supports the claim or is in relative equipoise (i.e., about evenly balanced for and against the claim), with the Veteran prevailing in either event. Conversely, the claim will be denied if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All reasonable doubt is resolved in the Veteran's favor. 38 CFR § 3.102. The Veteran contends, in lay statements and his personal hearing testimony, that his current low back disability is related to a car accident (MVA) suffered in July 1986 during a period of ADT. He asserts that he reported back pain when he sought treatment after the MVA, but the doctors told him his reported back pain was degenerative disease. The service treatment records (STRs) show that the Veteran was involved in an MVA in July 1986, and that he fractured his right hand and suffered a head injury. The STRs reflect treatment for the fractured hand and a blow to the forehead, but they do not show complaints of back pain or treatment for back pain in conjunction with the 1986 MVA, or with any other period of service. The Veteran was not examined prior to the period of ADT that began in July 1986. Medical records beginning in 1998 show evidence of a back disability. A March 1998 VA x-ray of the lumbar spine revealed mild degenerative changes. A March 1998 VA examination report noted the Veteran's self- reported history of a low back injury status post MVA in 1986. The examiner diagnosed the Veteran with mild degenerative joint disease of the lumbar spine by x-ray and thoracic paravertebral myositis, but did not provide an opinion as to the etiology of the current low back disability. An August 1993 x-ray report indicates spina bifida occulta at S1. Spina bifida occulta is defined as an embryologic failure of fusion of one or more vertebral arches in which there is a spinal defect, but no protrusion of the cord or its membrane, although there is often some abnormality in their development. Stedman's Medical Dictionary, 1671 (27th Ed. 2000). It is noted that medical records associated with the record in connection with the current claim do not show a diagnosis of spina bifida occulta. The impression from an April 1998 CT scan of the lumbar spine was as follows: Bulging annulus fibrosus at L2-L3, L4-L5 and L5-S1 levels. No definite herniated disc was identified. There was no spinal canal stenosis and no narrowing of the neural foraminae seen. Mild posterior facet joint degenerative changes were noted at the L4-L5 and L5-S1 levels. Various medical records were written in Spanish and were converted to English. These records show that in June 1998 the Veteran reported lumbar pain in conjunction with an April 1998 accident. Another June 1998 report indicates that the Veteran sought treatment for back pain that resulted from physical activity carried out at work. A May 2006 MRI of the lumbar spine noted an impression of (1) Fatty hilum and borderline position of the tip of the conus; cannot rule out cord tethering; (2) mild bulging of the annulus at L2-3, l3-4, l4-5 and L5-S1. No disc herniation or significant central canal stenosis; (3) minimal grade I retrolisthesis of L2 on L3; (4) mild-to-moderate multilevel degenerative disc disease at L2-3, L3-4, and L4-5; and (5) straightening of the normal lumbar lordosis which may be positional or secondary to muscle spasm. VA outpatient records from 2007 show complaints of back pain and a diagnosis of arthritis. Private treatment records from 2002 to 2010 show continued treatment for low back pain. At a VA examination in December 2011, the examiner noted a diagnosis of (1) bulging of annulus L2-#, L3-4, L4-5 and L5-S1 - diagnosed on April 13, 1998; (2) degenerative disc disease - diagnosed on April 13, 1998; and (3) lumbar degenerative joint disease (DJD) - diagnosed on March 25, 1998. The examiner acknowledged the Veteran's reported history that he reported back pain after the accident in 1986 but the doctors did not pay attention to his back pain, and he has had back pain ever since. The examiner indicated a review of the claims file, and opined that the Veteran's current back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no evidence of a lumbar spine condition or a complaint of lower back pain in the STRs. The line of duty (LOD) does not mention any low back trauma or pain, the medical notes in the STRs do not mention any lower back pain or conditions other than fracture of metacarpals in his right hand and head trauma. The sworn statement dated August 8, 1986 in which the motor vehicle accident is narrated mentions the fracture of two fingers of his right hand, but no injury to the back is mentioned. The lumbar degenerative disc disease is not evidenced until 1998 which is more than 10 years after the motor vehicle accident. The Veteran is competent to report that he had back pain during ACDUTRA, as a result of the documented 1986 MVA. However, he is not competent as a lay person to provide an etiological opinion for currently diagnosed degenerative joint disease and degenerative disc disease to his claimed in-service complaints of back pain. This is a matter that is beyond the capability of a lay person to observe. To the extent that the Veteran has contended that he has experienced back pain symptom[s] since an injury in service, these statements lack credibility and, therefore, are accorded no probative weight. The medical records contemporaneous in time to the injury as well as the Veteran's signed statements dated in August 1986 do not state that he had back symptoms following the accident. Since the Veteran's current statements conflict with records that were created contemporaneous in time to the accident, they are not credible. Accordingly, the medical opinion which was based on an examination, review of the Veteran's history and his lay statements, outweighs the Veteran's statements. The competent evidence does not show that the Veteran has a back disorder that was incurred or aggravated in ACDUTRA, including as a result of the 1986 MVA. There is no competent opinion to the contrary. The VA examiner does rely, at least in part, on the lack of objective evidence to support the opinion. Nonetheless, the examiner, in essence, points out that the STRs indicate that the Veteran injured his right hand and head, while at the same time, noting that no back complaints were identified during that time period. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) ("[T]he Board may use silence in the [service medical records] as contradictory evidence only if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the [service medical records].") citing to Fed.R.Evid. 803 (7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). Given that the Veteran sought treatment for two specific injuries suffered as a result of the 1986 accident, the Board finds that any back pain, if present, would have also been recorded if such back pain existed at that time. While spina bifida occulta was noted in a 1993 x-ray report, such has not been diagnosed during the pendency of this claim or in proximity thereto. Moreover, the VA examiner found that there was no evidence of a back injury which pre-existed service and was aggravated as a result of the 1986 accident beyond the natural progress of the disease. In summary, the medical evidence in this case outweighs the Veteran's self-reported history; and, for these reasons, the preponderance of the evidence is against the claim for service connection for a low back disability and the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER Service connection for a low back disability is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs