Citation Nr: 1337419 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-24 037 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to service connection for a lumbar spine disorder, claimed as chronic back pain, to include as secondary to service-connected right and left knee sprains. ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from May 1997 to May 2001. This appeal to the Board of Veterans' Appeals (Board) initially arose from a February 2007 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for chronic back pain. In June 2013, the Board, inter alia, remanded the instant claim to the RO, via the Appeals Management Center (AMC) for further action, to include additional development of the evidence. After accomplishing additional action, the AMC continued to deny the claim, as reflected in the September 2013 supplemental statement of the case (SSOC), and returned the matter to the Board for further appellate consideration. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veterans claim. A review of the documents in such folder reveals VA treatment records dated through August 2013; such records were considered in the September 2013 supplemental statement of the case (SSOC). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although service records reflect lumbar spine complaints, no chronic lumbar spine disability was shown in service or for many years thereafter, there is no persuasive evidence of continuity of lumbar spines symptoms since service, and the medical opinion to directly address the medical relationship, if any, between a current lumbar spine disorder and service and/or the service-connected knee sprains weigh against the claim. CONCLUSION OF LAW The criteria for service connection a lumbar spine disorder, claimed as chronic back pain, to include as secondary to service-connected right and left knee sprains, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a May 2006 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection on a secondary basis. A December 2010 letter also provided such notice as to service connection on a direct basis. These letters provided notice as to what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. In addition, these letters provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After the issuance of the December 2010 letter, and opportunity for the Veteran to respond, the January 2013 SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). In addition, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of any notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file includes the Veteran's VA outpatient records and the reports of VA examinations, as requested by the Board in its June 2013 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes a December 2007 response from the Social Security Administration (SSA) which indicated that the Veteran was not receiving benefits. Finally, there are various written statements provided by the Veteran on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the current claim for service connection, prior to appellate consideration, is required. The Board also notes that, in a June 2013 letter, the RO requested that the Veteran identify any private treatment providers who had treated him for his claimed lumbar spine disorder, to include any chiropractors, and requested that he complete an appropriate authorization forms (as instructed by the Board in its June 2013 remand). However, the Veteran did not respond to this letter. The Board points out that, in order for VA to process claims, individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). Moreover, VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Swann v. Brown, 5 Vet. App. 229, 233 (1993). As previously indicated, the RO requested that the Veteran complete an appropriate authorization form to allow VA to obtain any private treatment records, to include any chiropractic treatment records, in a June 2013 letter. Under these circumstances, the Board finds that, with respect to this request, no further RO action in this regard is required In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is listed as a chronic disease under 38 C.F.R. § 3.309(a). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran contends that his current lumbar spine disorder was caused by an in-service muscle strain. In the alternative, the Veteran argues that his current lumbar spine disorder was caused or aggravated by his service-connected knee disorders. Service treatment records document complaints of left-sided mid-region back pain that began after unloading a "five ton with seabags" in October 2000; an assessment of latissimus dorsi strain with possible muscle spasm was made. In a November 2000 Post-Deployment Health Assessment, the Veteran indicated that he had no unresolved medical problems that had developed during his deployment. A January 2001 service discharge examiner found the Veteran's spine to be normal and was otherwise negative for any relevant abnormalities. The Veteran reported back injury in an accompanying Report of Medical History (RMH) and but did not report any current symptoms. Post-service treatment records document an assessment of lumbosacral myositis with spasms in November 2004. A November 2004 lumbar X-ray revealed a normal lumbosacral spine. Subsequent treatment notes reflect the Veteran's complaints of low back pain. During a September 2006 VA examination, the Veteran reported the onset of chronic back pain in 2001. Following a physical examination and a review of the Veteran's claims file, a diagnosis of chronic back pain was made. An accompanying X-ray revealed a normal lumbosacral spine. The examiner opined that he could not provide an etiological opinion as to the Veteran's claimed low back condition without resorting to mere speculation. In an October 2007 statement, the Veteran's manager from his civilian employment noted that the Veteran complained of lower back pains frequently and that he had missed work on occasion due to back complaints. He also noted that the Veteran had displayed great discomfort while performing normal job tasks. During an August 2013 VA examination, the Veteran reported that his back trouble first began in 2001 or 2002 without a particular accident or injury and that he had not received treatment for his back during service. He received treatment after service for his back and had been told that his discs have been slipped. Following a physical examination and a review of the Veteran's claims file, diagnoses of low back strain and degenerative disc disease at L5-S1 were made. The examiner opined that the Veteran's lumbar spine disorder was less likely than not related to, or had its onset in, his service. The examiner reasoned that the Veteran's current history and examination were not consistent with a residual or persisting latissimus dorsi strain with possible muscle spasm from service, that service treatment records did not support evidence of lumbar disc disease and that his lumbar spine disorder was consistent with that of age-related changes and over-use activities. The examiner further opined that it was less likely as not that the Veteran's lumbar spine disorder was worsened by his bilateral knee condition as his knee condition was not to a degree to cause altered stressors on the spine. Here, the Veteran's service treatment records do reflect complaints of back pain and an assessment of latissimus dorsi strain with possible muscle spasm in October 2000. However, no chronic lumbar spine was shown in service, and separation examination revealed a normal back. With respect to post-service medical records, the first evidence of the disability was in a November 2004 VA treatment note. As noted above, there is nothing in the Veteran's service records to indicate that his current lumbar spine disorder had its onset during service or shortly after service. Rather, the first clinical evidence of such a lumbar spine disorder was in November 2004, approximately three years after service discharge. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board also notes that the Veteran has not been consistent in his assertions regarding the onset and presence of lumbar spine complaints. In a November 2000 Post-Deployment Health Assessment, the Veteran indicated that he had no unresolved medical problems that had developed during his deployment. His spine was found to be normal in a January 2001 service discharge examination. During an August 2013 VA examination, the Veteran reported that his back troubles began in 2001 or 2002 and that there was no particular accident or injury. In a November 2004 VA treatment note, during the course of treatment and prior to the filing of the instant claim, the Veteran reported that he had experienced stiffness and aching in his low back for the past six months. The Board notes that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 355-56 (1991); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). The Board, therefore, accords the Veteran's November 2004 statements regarding the onset of his low back symptoms more probative weight than any report of such symptoms made in connection with, or, presumed by the filing of, the Veteran's June 2006 claim for service connection. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). In addition, the Veteran indicated in his June 2006 claim that he had "begun" to have lower back pain. In light of these contradictory statements, any current assertions as to experiencing a lumbar spine symptoms continuously since service, advanced in furtherance of the appeal, are deemed not credible. As for medical opinion evidence, the Board notes the opinion of the September 2006 VA examiner that he could not provide an etiological opinion as to the Veteran's claimed low back condition without resorting to mere speculation. However, as this examiner failed to provide an etiological opinion, this opinion is being afforded to no probative weight. However, in the August 2013 opinion, the VA examiner declined to find a nexus between the Veteran's lumbar spine disorder and his service, noting that it was not consistent with a residual or persisting latissimus dorsi strain with possible muscle spasm from service, but rather consistent with age-related changes and over-use activities, that the service treatment records did not support evidence of lumbar disc disease, and that the Veteran's knee condition was not to a degree to cause altered stressors on the spine. As this opinion was based on physical examination, as well as consideration of the Veteran's documented medical history and assertions, and is supported by stated rationale, the Board accepts this opinion as probative of the medical nexus question. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Significantly, there is no competent evidence or opinion even suggesting that there exists a medical nexus between the lumbar spine disorder diagnosed years after the Veteran's discharge and any incident of service, or service-connected disability. None of the VA medical records treatment records reflect any such opinion or even comment to that effect, and the Veteran has not presented or identified any such existing medical evidence or opinion. In fact, in the only opinion to address the medical etiology question, as noted, the VA examiner declined to find a nexus between the Veteran's lumbar spine disorder and his service and/or his service-connected knee disorders. Moreover, as for any direct assertions by the Veteran that there exists a medical relationship between current lumbar spine disability and either service and/or service-connected knee sprains, the Board finds that such assertions do not provide persuasive evidence in support of the claim. Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the specific matter of the etiology of the disability under consideration is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). As such, the matter of the etiology of the disability here at issue is one within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran has not been shown to be other than a layperson without the appropriate training and expertise, he is not competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). Hence, the lay assertions of medical nexus have no probative value. For all the foregoing reasons, the claim for service connection for a lumbar spine disorder, to include on a secondary basis, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a lumbar spine disorder, claimed as chronic back pain, to include as secondary to service-connect right and left knee strains, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs