Citation Nr: 1341685	
Decision Date: 12/17/13    Archive Date: 12/31/13

DOCKET NO.  10-06 134	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to service connection for a back disability.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Curameng, Counsel


INTRODUCTION

The Veteran had active duty service from August 1988 to August 1992 with additional service in the Army National Guard.

This matter came to the Board of Veterans' Appeals (Board) from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  This matter was remanded in November 2011 and August 2013 for further development.  The Veteran testified at two hearings before the Board at the RO (Travel Board) in August 2011 and May 2013.  Transcripts are of record.

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

A low back injury in service is not shown; a low back disability was not manifested in service; arthritis of the lumbar spine was not manifested in the first postservice year; and a preponderance of the evidence is against a finding that the Veteran's current lumbar spine disability is related to his military service.


CONCLUSION OF LAW

Service connection for a low back disability is not warranted.  38 U.S.C.A. §§ 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was advised of VA's duties to notify and assist in the development of the claim.  A December 2008 letter provided the required VCAA notice prior to the adjudication of his claim. 

The Veteran's service treatment records (STRs) and VA treatment records have been obtained as well as Social Security Administration (SSA) records.  A VA examination was obtained in October 2013, pursuant to remand by the Board.  The October 2013 VA examination is found to be adequate for rating purposes as it substantially complied with the May 2013 remand instructions.  In this regard, it is noted that the examiner reviewed the Veteran's medical history, including his lay testimony concerning his reported back injury while on active duty, and performed an extensive medical examination.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim.

Pertinent Evidence and Legal Analysis

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Service connection may 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).  Certain chronic diseases (including arthritis) may be presumptively service connected if manifested to a compensable degree in a specified period of time postservice (one year for arthritis).  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1990).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a).

The Board notes that it has reviewed all of the evidence in the VBMS system, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran's main contention is that his current low back disability is due to an incident in service when he was performing a night exercise, slipped, and landed awkwardly on his ankle and feeling like something had "popped" in his back.  He reported that he was taken out of the field to the medical Humvee and remained immobile for several hours before being carried out of the woods.  He reported that he was placed on profile the following day, and that the pain lasted several weeks, gradually fading.  He reported the pain was "sporadic" thereafter until about May 2006 when it became constant.

A review of STRs reveals does reveal ankle injury and treatment, but no back complaints, treatment or diagnosis.  His July 1993 service separation examination noted that the Veteran denied recurrent back pain.  A March 1993 periodic examination also noted that the Veteran denied recurrent back pain.

A March 2001 VA treatment record noted that the Veteran reported left lower back pain since the day before and "may have twisted it" and noted that the Veteran reported that he hurt his back "in 1991 in Germany."  A VA February 2007 MRI report noted a history of 5 months of severe lower back pain.  A July 2009 VA treatment record notes MRI and CT reports show an L4-5 pars fracture with spondylolisthesis.  A November 2009 VA pre-operative consult note indicated that the Veteran "reinjured" his back three years previously (approximately November 2006).  An October 2013 VA examiner diagnosed lumbar degenerative disc disease, s/p lumbar decompression/fusion 2011.

The Veteran is competent to testify regarding facts or circumstances that can be observed and described by a layperson.  38 C.F.R. § 3.159(a)(2); see Layno v. Brown, 6 Vet. App. 465, 471 (1994) (finding that "competent testimony is . . . limited to that which the witness has actually observed, and is within the realm of his personal knowledge").  The Board finds he is competent to provide testimony regarding an awkward fall and feeling like something "popped" in his back.

Arthritis of the low back was first clinically noted in 2006 (many years after his discharge from active duty).  There is no postservice evidence of low back disability prior to the possible twisting injury in 1991 and the additional reinjury in 2006.  The Veteran does not assert to continuous symptoms during this time, but instead reports that his back problems were "sporadic" until 2006, many years after service.  Accordingly service connection for a low back disability on the basis that such disability became manifest in service, and persisted, or on a presumptive basis (for lumbar arthritis as a chronic disease under 38 U.S.C.A. § 1112) or on the theory of continuity of symptomatology is not warranted.

The only competent evidence regarding a nexus between the Veteran's low back disability and his service/activities therein, the opinion of the October 2013 examiner, is against the Veteran's claim.  The opinion is based on a physical examination of the Veteran and a review of (and reflects familiarity with) the record.  The examiner reported that the claims file had been reviewed, and he particularly noted the Veteran's report of his injury in service and his sporadic back complaints since that time.  The negative opinion includes an explanation of rationale.  The examiner based his opinion that the Veteran's current back disability is less likely than not related to service because "the service record does not document objective findings consistent with a high energy injury to the soft tissue or osseous structures of veteran's lumbar spine, such as fracture, disc derangement, or dislocation."  The examiner stated that "in the absence of such findings a post traumatic or chronic inflammatory process is less likely than not."  The examiner further explained that his conclusion was based on the alternate consideration that the STRs did not "document repetitive microtrauma which would be required to initiate and sustains a posttraumatic or chronic inflammatory process."  This opinion has substantial probative value, and is persuasive. 

The Board acknowledges the Veteran's assertion that his current back disability is related to the incident in service when he landed awkwardly.  While the Veteran is competent to report the types of symptoms he has experienced, he is not competent to render a medical nexus opinion.  See Barr, 21 Vet. App. 303.  Lay persons are competent to provide opinions on some medical issues.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The specific issue in this case, whether the Veteran's current lumbar degenerative disc disease, s/p lumbar decompression/fusion, is due to service, falls outside the realm of common knowledge of a lay person.  Jandreau, 429 F.3d at 1377.  Nothing in the record demonstrates that the Veteran has received any special training or acquired any medical expertise in evaluating orthopedic conditions.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012).

In light of the foregoing, the preponderance of the evidence is against this claim. Accordingly, it must be denied.


ORDER

Service connection for a low back disability is denied.




____________________________________________
M. C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs