Citation Nr: 1341209 Decision Date: 12/13/13 Archive Date: 12/20/13 DOCKET NO. 01-07 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for muscle spasms of the lower back (referred to hereinafter simply as "back disability"). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Esq. WITNESS AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from July 1963 to June 1966 and from September 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana. Thereafter, the Veteran perfected an appeal. The Board remanded several issues, including the issue of whether new and material evidence had been received to reopen a claim of entitlement to service connection for a back disability, in July 2008 for a hearing to be conducted because the previous June 2002 Central Office hearing was before a member of the Board who had retired. A Travel Board hearing, at which both the Veteran and his sister testified, was convened before the undersigned Veterans Law Judge in July 2009. A transcript of this hearing was associated with the claims file. In an April 2010 decision, the Board found, among other things, that new and material evidence had been submitted to reopen a claim for service connection for a back disability. Service connection for this disability was denied, however. The Veteran appealed this Board decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2011 Joint Motion for Partial Remand (JMR), the Veteran and the VA Secretary ("the parties") requested that the portion of the Board's April 2010 decision denying service connection for a back disability be vacated and remanded. An Order granting the JMR was issued by the CAVC later in April 2011. In November 2011, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development and adjudicative action. After completing the additional development, the AMC continued to deny the claim (as reflected in a June 2012 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration. FINDING OF FACT The competent medical and other evidence of record reflects that the Veteran's current back disability, diagnosed as degenerative disc disease, was not present in service or within one year of his discharge from service-or, indeed until many years later. The preponderance of the evidence fails to establish that the Veteran's current back disability is related to an event, injury, or disease during service. CONCLUSION OF LAW A back disability, diagnosed as degenerative disc disease, was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in September 2004 of VA's duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon his claim. To the extent that this letter did not comply with all dictates of Dingess, because service connection is being denied any question as to the appropriate disability rating or effective date ultimately is moot. Thus, even non receipt of notice concerning these downstream elements of this claim is, at most, nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102. VA has also satisfied its duty to assist the Veteran in the development of his claim. In-service and pertinent post-service treatment reports are of record. The Veteran has availed himself of the opportunity to submit relevant documents and argument in support of his claim, including personal statements, representative argument, and has provided testimony at the 2009 Board hearing. The Board finds that there is no additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board is also satisfied that the AMC has substantially complied with the November 2011 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). A VA medical opinion was obtained in June 2012 to assist in determining whether the Veteran's current back disability is attributable to his military service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination/opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA examination is more than adequate. It reflects a full review of all medical and other evidence of record, is supported by sufficient detail, and refers to specific documents and medical history as well as the Veteran's service history to support the conclusions reached. Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Law and Analysis The Veteran is seeking service connection for a back disability that he contends began in service as a result of a lifting injury. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is 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 Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) Arthritis is a qualifying chronic disease under 38 C.F.R. § 3.309(a). While degenerative disc disease is not specifically listed as a "chronic disease," as the evidence of records indicates that Veteran's lumbar arthritis and degenerative disk disease appear to be intertwined into a single disability, the Board will consider the Veteran's claimed back disability as a "chronic disease" subject to service connection via the demonstration of continuity of symptomatology under the circumstances of this case. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Service treatment records show the Veteran was seen complaints of back pain in November 1967. Examination showed no findings or suggestion of disc disease and he was diagnosed with lumbar strain at that time. A subsequent November 1967 record noted back pain for the prior 4-5 weeks. The Veteran denied any lifting, falling or other reason for the pain. There was no history of back trouble and no evidence of disease. Consideration is given to the Veteran's assertion of experiencing continuous back symptomatology since service. Post-service records show the Veteran was first examined for back pain in March 1969 and again a few years later in April 1971. He was next seen for back pain in September 1972 after stepping off a curb. In June 1973, about a year that, the Veteran was treated for back pain, he attributed to being "beat across the back." The record shows he did not complain or seek treatment for his lower back until October 1990, a period of approximately 17 years from the last known back pain incident. At that time low back pain that was similar to degenerative disc disease and occasional severe root compression was noted. A December 2009 magnetic resonance imaging report noted thoracic spine dextroscoliosis without evidence of disc herniations or spinal stenosis. Considering the evidence in a light most favorable to the Veteran, the first documentation of diagnosed back disability was in October 1990, more than 20 years after separation from service. As such, it is impossible to grant presumptive service connection on the basis of the manifestation of a chronic disability (e.g., arthritis) within one year after separation from service. 38 C.F.R. §§ 3.307 and 3.309. The Veteran was afforded a VA examination in June 2012 for the specific purpose of obtaining an opinion as to whether or not his current back disability could be related to service. The examiner interviewed the Veteran, reviewed the claims file in its entirety, took a detailed history of symptoms, and reviewed the Veteran's medical history since service, as well as past radiological reports. The Veteran's accounts of a lifting injury in the 1960s, his post-service back problems around 1970, as well as his current medical problems were summarized in the report. The diagnosis was age-typical degenerative disc disease, which the VA examiner determined was likely as not (less than 50/50 probability) incurred in or caused by any claimed in-service injury, event or illness. The examiner explained that the Veteran had a trivial event in military service and needed little treatment post discharge. In addition X-rays from 1998 were normal and even now MRI findings showed better than age-typical disc disease. Based on the foregoing, the Board is unable to attribute the Veteran's current back disability to his military service. The fact that he was treated for episodes of back pain during service is acknowledged. However, back pain, while the type of symptom capable of lay observation, are not equivalent to diagnoses of degenerative disc disease. Merely establishing treatment for symptoms while in service is not tantamount to granting service connection because there also has to be chronic residual disability resulting from that condition or injury. See Chelte v. Brown, 10 Vet. App. 268 (1997) (observing that a "current disability" means a disability shown by competent evidence to exist). Furthermore, the Board finds that the 2011 VA opinion is highly probative as it is based upon a complete review of the Veteran's entire claims file and supported by detailed rationale. The VA examiner considered the Veteran's history of in-service back problems, the results of the personal clinical evaluation, the relevant history as contained in medical records from service onward, and discussed the Veteran's symptoms in the context of that history. Also considered were the Veteran's beliefs that his current back problems were the result of or caused by his lifting injury during service. Thus, the examiner had sufficient facts and data before him. As a result, he was able to address fully the salient question as to the origin of the Veteran's current degenerative disc disease and its relationship to military service. Moreover, the claims folder contains no competent medical evidence refuting this opinion. Therefore, after weighing all the evidence, the Board finds greater probative value in the 2011 VA examiner's conclusions. Also, in light of the other evidence of record, the Board notes that the negative nexus opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). In reaching this conclusion, the Board has considered continuity of symptomatology, and so doing, has not overlooked the Veteran's contentions, his statements to healthcare providers, or his written statements regarding his conditions. His primary assertion is that his current back disability had its onset in service. The Board is keenly aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The United States Court of Appeals for the Federal Circuit has held, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. So, to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file - including any medical evidence addressing the determinative issue of causation. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Veteran is competent to give evidence about what he sees and feels (e.g., to report that he had back pain during and since service). In addition, based on the evidence submitted in support of his claim, the Board finds the Veteran to be credible with respect to his assertions. However, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any particular training or acquired any medical expertise in evaluating and determining causal connections for degenerative disc disease. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Moreover, while not a dispositive factor, the significant lapse in time between service and post-service diagnosis may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). The Board emphasizes that while there were a few isolated reports of back pain and/or strain during service and in the years immediately following service, these were acute and transitory ailments that resulted from contemporaneous event from which the symptoms ultimately resolved. Indeed, as was discussed above, the medical examination and opinion undertaken to evaluate whether the Veteran's back disability is related to service took this history into consideration in explaining why his current back disability is unrelated to service. The Board recognizes the sincerity of the arguments advanced by the Veteran, but his contentions as to the etiology/onset of his claimed back disability are not statements merely about symptoms, an observable medical condition, or a contemporaneous medical diagnosis. Rather, they fall within the realm of requiring medical expertise, which he simply does not have. [Degenerative disc disease is a fairly complex disorder that requires specialized training and equipment for a determination as to diagnosis and causation.] Thus, it is not susceptible of lay opinions on etiology alone. While the Veteran is competent to say that he has experienced certain symptoms, even symptoms that often may be associated with eventual diagnoses of degenerative disc disease, he is not in turn competent to ascribe these symptoms to disability related to his military service. This lay evidence does not constitute competent medical evidence and lacks probative value. Likewise, the single competent medical opinion in the record conclusively found no etiological relationship between service and the Veteran's subsequent development of degenerative disc disease. The Veteran has not established that his current back disability is related to military service, only believing instead there must be some correlation between this condition and his military service-in effect, by logical deduction-because he had back pain while in service. But this leap would require ignoring the acute and transitory nature of the in-service symptoms, which the VA examiner apparently considered more significant. In this case, the Veteran's opinion, to the extent that it is to be accorded some probative value, is far outweighed by the more thoroughly explained and detailed opinion from the VA medical professional. Jandreau, supra & Buchanan, supra. Accordingly, the preponderance of the evidence is against these service connection claims, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Service connection for a back disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs