Citation Nr: 1339832 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-14-175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a low back disability to include degenerative joint disease. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, his spouse, his daughter, and G.R. ATTORNEY FOR THE BOARD T. Carmichael, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1951 to March 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. The Veteran testified at an August 2012 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In August 2013, the Board granted the Veteran's application to reopen the claim and remanded the matter for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's current degenerative joint disease is not related service. CONCLUSION OF LAW Degenerative joint disease was not incurred in or aggravated by active military service, nor may service connection be presumed. 38 U.S.C.A. §§ 1101, 1112, 1113, 1110, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013). \ REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA advised the Veteran in September 2008 of information as to the evidence required to substantiate the claim, and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained the type of information and evidence needed to establish a disability rating and effective date. VA has made reasonable efforts to obtain relevant records identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, private medical treatment records, VA examination reports, and records from the Social Security Administration, the Veteran's statements, lay, and buddy statements. The Board has carefully reviewed such documents and concludes that no available outstanding evidence has been identified. An August 21, 2013 Board decision remanded the claim for a VA examination to determine the etiology of the Veteran's current back disability. The examination was conducted in October 2013. Stegall v. West, 11 Vet. App. at 268, 271 (1998). The opinion is based on review of the claims file and the Veteran's medical records, clinical examination of the Veteran, and contains a reasoned explanation for the medical opinion provided. Thus, the examination report is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claim. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Analysis of the Claim The Veteran asserts he sustained a back injury when he slipped and fell while working as a baker during service in 1951. Although the Veteran has a back disorder, the preponderance of the evidence is against a finding that it is related to service. The claim will therefore be denied. Service connection may be granted for a 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.That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). 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). In order to establish direct service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). If a chronic disease, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of service, such disease 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; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Additionally, medical nexus evidence demonstrating an etiological link is not necessary to establish service connection when evidence, regardless of its date, shows that a veteran had a chronic condition in service, and that he still has the same chronic condition. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). See also 38 C.F.R. § 3.303(b). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, 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). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran has in part argued that his in-service back injury aggravated a pre-existing back disability. However, service treatment records (STRs), including his entrance examination are negative for complaints or treatment for a back injury or back pain prior to entry into service and the Veteran failed to disclose any such pre-existing back injury during his entrance examination. Therefore, the Veteran is presumed sound upon entry. 38 C.F.R. § 3.304(a)(1). In 1953, the Veteran had x-rays taken of his thoracic spine which showed no abnormalities as to T12 and the adjacent vertebra. In the Veteran's March 1954 discharge examination report, the Veteran's spine and other musculoskeletal system were clinically evaluated as "normal." The Veteran did not report a back injury or chronic back pain. However, records from the Social Security Administration note the Veteran worked in the construction industry as a sheet metal worker from 1962 until 1985. The post-service evidence reflects that the Veteran did not seek treatment for back pain until June 1963 when he was hospitalized from June to July 1963. Upon admission, it was noted that the Veteran had experienced intermittent low back pain for the past 8 to 9 years. There was no mention of any previous back injuries. The Veteran had experienced his most recent backache was in April 1963. The pain was in his lower back and radiating down the posterior aspects of his legs. An x-ray of his lumbosacral spine was interpreted as showing a possible displaced intervertebral disc at the lumbosacral joint. Upon his discharge, he was diagnosed with lumbosacral strain which was treated and improved. Private medical records reflect that in 1983, x-rays of the Veteran's lumbosacral spine were reported to show L5-S1 degenerative disease; lumbosacral junction degenerative disease. In 1985, the Veteran was diagnosed with a herniated nucleus pulposus. Additional private medical records show that in October 1985, the Veteran underwent a myelogram which showed a bulging nucleus at L4-5, without nerve root impingement. In August 1986, he underwent a lumbar laminectomy. The diagnosis was herniated disk at L4-5. During an October 1987 VA examination, the Veteran demonstrated early osteoarthritis involving the posterior lumbosacral joints, but the examiner opined the Veteran's back condition was not due to service. An October 2013 VA examiner diagnosed the Veteran with degenerative joint disease. The examiner stated that entrance and separation examinations showed no abnormalities. The examiner, who reviewed the claims folder and the Veteran's clinical history, stated that current complaints were not related to service, and there is no evidence in the medical record that would support a nexus for the development of degenerative joint disease of the thoracolumbar spine. There is no competent evidence to refute this conclusion. The Veteran's own statements have also been considered as well as those of his family, friends, and fellow service-members. Specifically, they maintain that when he was in the Navy, the Veteran injured his low back when he slipped and fell while working as a cook. The Veteran contends that he subsequently developed chronic low back pain. The Veteran and his fellow service members are competent as laypersons to report that on which they have personal knowledge, which would include the claimed in-service low back injury and the Veteran's subsequent low back pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the diagnosing of degenerative joint disease 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) (lay persons not competent to diagnose cancer). Despite the Veteran's claim that his current back injury is related to service, the lack of complaints or diagnoses for a back injury in-service weigh against the Veteran's claims that his disability began in service and continued thereafter. The Veteran began receiving treatment for his back 9 years after leaving service however, he made no reference to an in-service injury while receiving care from VA or private physicians. None of the Veteran's medical treatment providers attribute the Veteran's back disability to his in-service injury. The medical examinations undertaken during treatment are highly probative. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. 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 if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Despite the Veteran's statements regarding his in-service injury, the preponderance of the evidence is against finding that the Veteran has degenerative joint disease that is etiologically related to active service. The record is absent of reports of continuous symptoms of a chronic back disability during or immediately after discharge from service, nor do the Veteran's private medical records and VA examinations provide a nexus between the Veteran's current degenerative joint disease and his in-service injury. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for a low back disability is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs