Citation Nr: 1340895 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 08-00 039A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in February 2009. A transcript of this hearing has been associated with his VA claims folder. When this case was previously before the Board in July 2010 and July 2013, it was remanded for further development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The preponderance of the evidence shows that the Veteran's back disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSION OF LAW The requirements for establishing service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist 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)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). Compliant VCAA notice was provided by February and November 2006 letters. Neither the Veteran nor his representative has alleged or demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009 (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records, and VA examination reports. This case was remanded by the Board in July 2010 and July 2013 for additional development, to include obtaining additional medical records, Social Security Administration (SSA) records and providing a VA examination. The Board notes that the Veteran was requested in the July 2013 Board remand to submit a completed authorization and consent form (VA Form 21-4142) to have VA obtain private medical records from Dr. Marchetta. The consent form was sent to the Veteran in July 2013; however, the Veteran failed to return that form, and the additional private records could not be obtained. The Court has held that VA's "duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA cannot seek private medical records without the written permission of the claimant. As such, there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has been afforded a hearing before a DRO in which he presented oral argument in support of his low back disability claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the DRO identified the issues to the Veteran, and relevant testimony concerning events in service and treatment history was elicited. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. 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. Therefore, he was provided with a meaningful opportunity to participate in the claims process. 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. Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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) (2013). 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 prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all 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 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). The Veteran seeks service connection for a low back disability. He contends that he suffers from low back pain due to a fall that occurred during active military service, when he slipped and fell into a ravine and hit a rock with his tailbone. Service treatment records dated in October 1967 show that the Veteran complained of back pain due to a fall on a physical training test. An in-service treatment record dated in either January 1968 or January 1969 (the last number in the year is illegible) shows that Veteran was treated for back pain. On the Veteran's separation report of medical history, it was noted that the he had "no" back trouble of any kind and his separation examination showed that his spine was found to be normal. A 1970 VA general medical examination revealed no complaints or findings concerning a low back disability. Post service treatment records show that the Veteran underwent a VA spine examination in July 1997. The Veteran reported that he had injured his coccyx and low back when he jumped into a ravine and hit a rock with his tailbone. He also stated that in 1994, he had injured his back while doing electrical work. Following examination, the Veteran was diagnosed with chronic lumbar strain and sprain with discogenic lumbar spondylosis, as well as symptomatic arthrofibrosis of the lumbar spine. A private treatment note dated in August 1997 from Dr. Tze indicated that the Veteran had a focal spinal stenosis caused by hypertrophic facet disease at the L4-L5, associated with a central bulge. Private treatment records dated from December 2004 to April 2005 from Coastal Spine showed treatment for chronic low back pain. VA treatment records dated December 2005 showed that the Veteran had progressive degenerative spondylotic changes at the L4-L5 and L5-S1, and advanced central canal stenosis at the L4-L5, with marked left foraminal narrowing and nerve root impingement. Progressive left subarticular and left foraminal stenosis was found at the L5-S1, with impingement on traversing and existing nerve roots. The Veteran was afforded a VA examination in March 2006. The Veteran reported falling during physical training in 1967. After examination of the Veteran and review of the Veteran's claim file and employment history, the examiner opined that the Veteran's current low back condition was not related to the complaint of back pain in service. The examiner noted that there were not continuous complaints of back pain by the Veteran while he was in service and that following discharge from the military service, the Veteran was able to deliver heavy propane gas tanks for 5-6 years. The Veteran submitted a private treatment note in August 2006 from Dr. Marchetta. The note indicated that the Veteran had been treated by the private doctor for lower back pain since 1991. A VA physical therapy note dated in August 2007 reflects that the Veteran complained of localized pain across his lower back. A bone scan revealed a compression fracture and mild to moderate degenerative changes. The Veteran was afforded a DRO hearing in February 2009. The Veteran stated that he hurt his back during basic training and again when he fell into a ravine in Vietnam. He indicated that he did not seek treatment for his back problem after he fell. He noted that right after discharge, he did not seek private treatment for his back. The Veteran stated that he since sought treatment from Coastal Spine. He also stated that he broke his back while working as an electrician. He reported that someone cut a cable loose which caused him to injure his back. He stated that after the accident, he went on disability. SSA records obtained in April 2011 include private treatment records which reflect complaints and treatment for low back pain. The records note that the Veteran suffered a broken back in July 2004, and due to the accident, retired the day of the injury. The Veteran was afforded a VA spine examination in September 2013. The Veteran stated that while in service, his pain was 5 out of 10. Following examination, the examiner diagnosed the Veteran with lumbar spine degenerative joint disease and a lumbar fracture. After a review of the Veteran's claims file, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner concluded that the Veteran's complaint of back pain in service seemed to resolve after several days and that the Veteran stated that it had already resolved by and after the time he was discharged from service. In addition, the examiner noted the Veteran's injury at the gas company where he sustained a severe lower back injury. After a review of the record, the Board finds that the preponderance of the evidence is against the claim for service connection for a low back disability. The Veteran was treated for low back pain while in service, and is currently diagnosed with lumbar spine degenerative joint disease and a lumbar fracture. However, there is no medical opinion linking the Veteran's back disability to service. The only medical opinions of record addressing the relationship between the current condition and service are that of the VA examiners, and such opinions are against the claim. In this regard, the Board finds the opinion of the September 2013 VA examiner to be most probative. The opinion was provided based upon comprehensive review of the claims file and examination of the Veteran, and provided an adequate rationale that considered the Veteran's in-service treatment, post service employment and the Veteran's self-reported history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). This opinion is also consistent with the other evidence of record, including the March 2006 VA examination. There is no competent and probative opinion to the contrary. To the extent that the Veteran himself believes that his current disability is connected to the in-service incident, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion as to the etiology of spine disorders. 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). In this regard, spine disorders require medical testing to diagnose and can arise from many different causes, thereby requiring medical expertise to determine the etiology. Accordingly, his opinion as to the diagnosis or etiology of a low back disability is not competent medical evidence. Moreover, the Veteran was not shown to have arthritis in service or within a year following discharge from service. Thus, whether the symptoms the Veteran experienced in service or following service are in any way related to his current low back disability is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Board finds the opinion of the 2013 VA examiner to be significantly more probative than the Veteran's lay assertions. The Board notes that the Veteran reported to a VA clinician that he injured his back in service and has pain continuously since that time. However, the Board finds such assertion is contradicted by his own denial of back trouble of any kind on his Report of Medical History prepared for separation from service. Moreover, his separation physical examination and VA examination in 1970 revealed no complaints or finding of back pain. Accordingly, the Board finds the Veteran's assertion of continuous back pain since his in-service injury is not credible. 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). In summary, a chronic back disability was not shown in service or for many years thereafter, and the most probative evidence indicates that the current low back disability is not related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection 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