Citation Nr: 1338562 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-41 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Reeder, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1955 through September 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran failed to appear for an April 2012 Travel Board hearing. In June 2012 and February 2013, the Board remanded the current issue for further evidentiary development. In June 2013, the Board requested a review of the claims file and an opinion by a Veterans Health Administration (VHA) medical expert. In September 2013, a VHA medical expert opinion was provided. In September 2013, the Veteran and his representative were provided with a copy of the VHA opinion and were offered an opportunity to respond. In response, the Veteran's representative submitted written argument, in November 2013, which has been considered in this appeal. The Board notes that in addition to the paper claims file in this case, an electronic VA paperless claims file has also been associated with the Veteran's claim, and has been reviewed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The most probative evidence is against finding that the Veteran's current low back disability had its onset in service or is related to service, and there is no competent evidence showing arthritis within one year following discharge from service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2013). 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). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, the RO provided the Veteran with pre-adjudication notice, in compliance with the VCAA, by letter dated September 2009. The Veteran was provided all essential notice, had a meaningful opportunity to participate in the development of the claim being decided, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and to provide a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2013). In this case, the VA obtained Social Security records, post-service VA and private treatment records, VA examination reports, and a VHA opinion. Additionally, the RO requested the Veteran's service treatment records (STRs), but received a negative response from the National Personnel Records Center (NPRC), indicating that the Veteran's records were fire related. The RO informed the Veteran that his records may be fire related in a letter dated in September 2009 and asked him to submit all records in his possession, as well as any other information, to include lay statements. In a December 2009 Formal Finding Memorandum, the RO indicated that all efforts to obtain the records had been conducted, and that it had been unable to obtain them. Thus, all efforts to obtain the Veteran's STRs have been exhausted, and further attempts would be futile. 38 C.F.R. § 3.159(c) (2013). When STRs are lost or missing, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (2005) (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). Finally, the Board notes that the actions requested in the prior remands have been undertaken. Additional medical opinions were obtained, and attempts were made to obtain all records identified by the Veteran, including records from Fort Richardson, Alaska and Fort Jackson, South Carolina. The Veteran was notified that VA was unable to obtain certain records, including those for Fort Jackson Moncrief Hospital and Fort Richardson Hospital for the identified time periods, and he was asked to provide them if they were in his possession. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was provided with a meaningful opportunity to participate in the claims process, and has done so by providing evidence and argument. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, 19 Vet. App. 473. II. Service Connection The Veteran seeks service connection for a low back disability, which he contends initially manifested in service. Specifically, he contends that he sat on a tree root during basic training and was subsequently treated for a pilonidal cyst, and that those incidents caused his current low back disability. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (2013). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to establish service connection, there must be competent, credible evidence of (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. See 38 C.F.R. § 3.303 (2013); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent within one year from the date of termination of such service, such diseases shall be presumed to have been incurred in 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, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Board has reviewed and considered all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an initial matter, the Board finds that the medical evidence of record confirms that the Veteran has a current disability. In October 2012, during the pendency of this appeal, a VA examiner confirmed multilevel degenerative changes and disc space narrowing in the lumbar spine. With a current low back disability conceded, the issue before the Board becomes whether the Veteran's current disability is related to service. As previously stated, the Veteran alleges that his current low back pain is due to service. Specifically, he contends that he sat on a tree root in basic training, which caused a pilonidal cyst that was subsequently lanced, and that those events caused back pain that has continued since service. The Veteran has submitted various statements containing similar accounts of the in-service injury. For example, in an October 2009 statement, the Veteran indicated that he injured his back when he sat on a tree root, and that he subsequently had back surgery at Fort Jackson. During treatment for his low back in 2010, the Veteran indicated he had an injury in 1955, but that he did not know the exact details of the injury. The Veteran's earlier post-service medical records and statements suggest, however, that his back pain began post-service. The first notation of back pain in the record appears to be in March 1978, when the Veteran noted back, hip, and leg pain during a medical evaluation for a pilonidal cyst. The examining physician stated that he suspected most of the Veteran's complaints were to some degree psychoneurotically based, but stated he might need to be evaluated to rule out a herniated nucleus pulposus. The Veteran had been evaluated one month prior for a cyst over the sacrum, which he indicated had been lanced on numerous occasions but was not causing any problems at present. In 1985, the Veteran provided a detailed medical history to an examiner, including descriptions of arm and leg fractures and multiple lacerations, but gave no description of any back injuries, and denied any musculoskeletal symptoms at that time. Medical records from 1986 include the Veteran's indication that he was referred to a back clinic and given pain pills, but that he did not go to the clinic, and that he never had a problem with his back. In a January 1995 Social Security Disability Report, the Veteran stated he fell out of the shower and injured his back. The first low back disability diagnosis of record appears to have occurred in that same month, when an examiner diagnosed the Veteran with lumbosacral degenerative joint disease. During a March 1995 evaluation, the Veteran reported that he had arthritis of the spine, and that he had continuous back pain that began in November 1994. At that time the examiner incidentally noted a T12 compression fracture on the Veteran's recent x-rays, and indicated that the fracture may have been caused by his November 1994 injury. During a September 1995 evaluation, the Veteran again complained of low back pain, indicating he had fallen while painting in November 1994, and that his back pain had developed in January 1995. The Veteran underwent a VA examination in October 2010. At that time he reported that he sat on a tree root in 1956 and contracted a bump underneath his skin on his lower spine, which was subsequently lanced. He stated that the pain then went away, but that he has had chronic back pain since that time. The Veteran also noted he was hit by a car in the 1960s, sustaining a compound fracture to his leg. The Veteran denied any falls that resulted in back injury. After examining the Veteran and confirming a diagnosis of degenerative disc disease, the examiner opined that the Veteran's condition was less likely than not incurred in or caused by his claimed in-service injury. The examiner noted that previous reports had mentioned a fall in 1994 that resulted in rib fractures and a back injury, and possibly a T12 compression fracture. He also noted the car accident that injured the Veteran's leg. The examiner stated he would not expect a pilonidal cyst to cause long standing back pain and that, with the reported history of falls, it was difficult to state that the pilonidal cyst caused the Veteran's low back disability. As the Board found that the October 2010 examiner did not address the Veteran's alleged injury from sitting on a tree root and did not fully explain the rationale behind his negative nexus opinion, an addendum opinion was requested. In April 2013, the examiner expanded on his previous opinion, stating it would seem more logical that one of the Veteran's falls with possible compression fracture or his motor vehicle crash may have contributed to his current disability. He stated the Veteran likely had some back strains while in the military, which could have been the cause of his back pain in service, but that he saw no medical reason to associate the Veteran's current disability with his pilonidal cyst and/or its removal. The Board again found that the examiner focused on the Veteran's cyst rather than the tree root injury, and used vague language in providing his rationale. Therefore, the Board requested a VHA opinion to address the Veteran's claim. In response to the Board's questions, the neurosurgeon who provided the September 2013 VHA opinion stated that it was highly unlikely that the Veteran's pilonidal cyst and treatment or the Veteran's sitting on a tree root would cause degenerative disc disease, and that it was also unlikely that the Veteran's back pain was particularly related to his military experience. In support of those opinions, the physician stated that while the cause of pilonidal cysts is not specifically known, there is no evidence that they are caused by trauma. He stated there was no evidence that the infection from the cyst extended to the Veteran's spine, resulting in osteomyelitis or infection of the spine, intervertebral discs, spinal nerve roots, or their coverings. He explained that an infection that spread to that depth would have left the Veteran significantly debilitated for months or even years. He also explained that the infection would have had to travel a long distance to affect the Veteran's now degenerated lumbar discs, as the sacrum and coccyx do not have intervertebral discs. As there was no evidence of such an extensive infection, the physician found a causal relationship between a pilonidal cyst and disc degeneration to be non-existent. Turning to the tree root injury, the physician explained that plausible circumstances in which acute damage to lumbar discs would be expected involve motion or infection. He stated it was unheard of that sitting on a tree root on an area of the spine that has no discs and is not moving would cause degenerative disc disease or accelerated disc degeneration. Finally, the physician opined that it was unlikely that the Veteran's back pain was particularly related to his military experience. He admitted that there were limited records to review regarding the Veteran's workload during military service, and that his opinion was based on the history obtained through the available record. However, he opined that it was highly likely that the Veteran's degenerative disc disease was related to his advanced age and use of his back over the time since his discharge from service, combined with a genetic disposition to spondylosis, and that if anything served to possibly accelerate his disc degeneration, it was his accidents outside of military service. After review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a low back disability. Although the Veteran has a current disability, the most probative evidence indicates that such disability is not related to service. In this regard, the September 2013 VHA specialist's opinion is based upon a complete review of the Veteran's VA claims folder and provides a fully reasoned rationale for all of its conclusions. The specialist also considered the Veteran's lay report of in-service injury by sitting on a tree root and pilonidal cyst treatment when formulating his opinion. The Board finds, therefore, that the specialist's opinion is entitled to the most weight regarding the relationship between the Veteran's current low back disability and service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board notes, however, that the other VA opinions of record were consistent in finding that the current back disability was not etiologically linked to the Veteran's period of active duty. The Board acknowledges that the Veteran is competent, as a lay person, to describe an in-service back injury and subsequent symptoms of back pain. However, the current disability involves degenerative changes of the lumbar spine, which are internal and not subject to lay observation. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Therefore, the Board finds that competent medical evidence is required to diagnose such a disability. Additionally, as back disorders can have numerous causes, medical expertise is required to determine the etiology of such. Accordingly, the Board accords significantly greater probative value to the medical evidence of record than to the Veteran's lay assertion that he suffered from a low back injury in service that resulted in his current disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, the Veteran's history of contentions concerning when his back pain arose are internally inconsistent, calling into question their credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). Most notably, the Veteran denied, during his VA examination, the occurrence of an intercurrent back injury, although he had previously filed a Social Security disability claim for a post-service fall that resulted in a compression fracture of the spine. In summary, there is no competent and credible evidence indicating that the Veteran had arthritis in his back during service or for many years thereafter, and the most probative evidence is against a finding that his currently diagnosed low back disability is related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection for a low back disability is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs