Citation Nr: 1342299 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 08-21 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran had active service from July 1972 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim of service connection for a low back disability. The Board remanded this claim for additional development in January 2010, September 2010, and August 2012. It appears that the RO/AMC substantially complied with the Board's remand directives. The Board directed the RO/AMC to schedule the Veteran for appropriate VA examination. These examinations occurred in April 2010 and in October 2012. The Board also directed the RO/AMC to attempt to obtain the Veteran's complete Social Security Administration (SSA) records. These records subsequently were associated with the Veteran's claims file. 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)). The Board notes that, in addition to the paper claims file, there is a paperless electronic record associated with the Veteran's claim (including Virtual VA (VVA) and Veterans Benefits Management System (VBMS) records). A review of the documents in VVA and VBMS reveals that they include duplicative or irrelevant evidence to the issue on appeal. FINDING OF FACT The evidence does not show that the Veteran's low back disability is related to active service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1153, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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 & Supp. 2013)) 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 the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also 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. See Pelegrini, 18 Vet. App. at 121. In an October 2007 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The October 2007 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, Social Security Administration (SSA) records, private medical records, VA examination reports, and the Veteran's statements. The Veteran has been provided with VA examinations which address the contended causal relationship between the claimed disability and active service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claim adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. Having reviewed the record, the Board finds that the VCAA provisions have been considered and complied with by VA. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Law and Regulations 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 condition manifested during service either has not been established or might reasonably be questioned. 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 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). 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 arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such 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. Service connection based on a continuity of symptomatology can be warranted under 38 C.F.R. § 3.303(b) (2013) for chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Because the Veteran has been diagnosed as having degenerative joint disease of the lumbar spine, and arthritis is explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a) (2013), the Board finds that the theory of continuity of symptomatology in service connection claims potentially is applicable to this claim. The Board has reviewed all of the evidence in the Veteran's claims file. 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 Veteran 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). Factual Background The Veteran contends that he incurred his low back disability during service. Specifically, he alleges that his low back disability had its onset in service when he was treated for back pain. Service treatment records show that in February 1976, the Veteran was treated for low back pain. He reported that he had experienced recurrent low back pain for two years, but was noted to have no history of trauma. On separation examination in June 1976, the Veteran made no complaints of any back disability. Indeed, in his Report of Medical History, he affirmatively denied having recurrent back pain or any arthritis, rheumatism, or bone or joint deformities. Moreover, his spine was found to be within normal limits. Post-service private medical records dated in August 2001 and June 2006 indicate that the Veteran received treatment for chronic back pain. In an August 2005 private medical examination that the Veteran underwent in conjunction with his claim for SSA disability benefits, the Veteran complained of low back pain that was worse with prolonged sitting or when doing physical work. After examination, the Veteran was diagnosed with low back pain of degenerative joint disease/osteoarthritis type. An MRI of his lumbar spine revealed severe degenerative disc disease with prominent spondylosis and bilateral spondylolysis at L5-S1. The Veteran was granted SSA disability benefits in August 2005. His primary diagnosis was ischemic heart disease, but his secondary diagnosis was disorders of back (discogenic and degenerative). The explanation of the SSA determination noted that the Veteran had reported the onset of his back problems as being in December 2002. On VA examination in April 2010, the Veteran reported that during service, he experienced pain from wearing his heavy ruck sack. He stated that he would see the medics and be given medication, but that he received no other in-service treatment. He complained that since discharge from service, he had intermittent back pain that occurred with heavy work. The examiner acknowledged the February 1976 service treatment record in which the Veteran had been noted to have had back pain for 2 years. However, the examiner noted that there was no other information regarding physical findings or medications in the Veteran's service treatment records. After examination, the Veteran was diagnosed with lumbar strain. The examiner found that there were no treatment notes describing any physical findings or treatment for the Veteran's back in service, which meant that the Veteran had apparently had a soft tissue injury in service. Additionally, the Veteran only currently suffered from intermittent back pain. Given that the Veteran had had what appeared to be a soft tissue injury in service, the examiner opined that it was less likely than not that any back disability was related to the Veteran's period of active service. In October 2012, the Veteran underwent another VA examination in order to have the examiner update his VA opinion after reviewing the recently obtained SSA disability records indicating that the Veteran had a back disability that was different than what had been diagnosed at the April 2010 VA examination. The examiner noted that the Veteran's service treatment records indicated a complaint of low back pain in 1976 and that the Veteran had not complained of any conditions at his separation examination. He also acknowledged that the Veteran currently had a long history of low back pain without radiation. After examination, the examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine. He reviewed the Veteran's entire claims file and opined that it was less likely than not that the current spine condition of multilevel degenerative joint disease was related to a single incident of treatment for lumbar strain in service. Analysis The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a low back disability. The evidence indicates that the Veteran did not have a chronic low back disability in service. There is also no competent and credible evidence indicating he had arthritis manifested to a compensable degree within a year following discharge from service. Likewise, the weight of the competent and probative evidence does not show the Veteran's current low back disability is related to his period of service, to include his treatment for low back pain therein. Accordingly, service connection for a low back disability is not warranted on any basis. The Board observes initially that an August 2005 SSA decision found that the Veteran was disabled due to his ischemic heart disease and disorders of back (discogenic and degenerative). VA is not bound by the findings of disability or unemployability made by other agencies, including SSA, however. See Collier v. Derwinski, 1 Vet. App. 413 (1991). The Board notes that although there was evidence of in-service treatment for low back pain, on June 1976 separation examination, the Veteran did not make any complaints about his spine, and his spine was found to be within normal limits. In addition, arthritis of the lumbar spine was not shown to a compensable degree within one year following the Veteran's discharge from service. The Board notes that at no time did any of the Veteran's treating providers find that his low back disability was due to his period of service, to include in-service treatment for low back pain. The VA examiners who performed the April 2010 and October 2012 VA examinations and provided the April 2010 and October 2012 opinions thoroughly reviewed the claims file, interviewed and examined the Veteran, considered the Veteran's lay assertions, and provided adequate reasoning and bases for the opinions that it was less likely than not that the Veteran's low back disability was due to his in-service treatment for low back pain. Specifically, the April 2010 examiner found that although the February 1976 service treatment record noted that the Veteran had had back pain for 2 years, there was no other information regarding physical findings or medications in the Veteran's service treatment records, which meant that the Veteran had apparently had a soft tissue injury in service. Additionally, the April 2010 examiner pointed out that the Veteran only currently suffered from intermittent back pain. The October 2012 VA examiner found that although the Veteran currently had a long history of low back pain without radiation, his service treatment records only revealed one complaint of low back pain in 1976 and the Veteran had not complained of any conditions at his separation examination. He concluded that the Veteran's current multilevel degenerative joint disease was less likely than not related to a single incident of treatment for lumbar strain in service. The Board acknowledges that the April 2010 VA examiner did not have the benefit of reviewing the Veteran's SSA disability records when rendering his negative nexus opinion. The October 2012 VA examiner did review the Veteran's entire claims file, including his SSA disability records, and still provided a negative nexus opinion. For these reasons, the April 2010 and October 2012 VA opinions, taken together, are afforded great probative value. The Veteran contends that he has experienced back pain continuously since discharge from service. As a lay person, he is not competent to determine that he had a diagnosis of degenerative joint disease of the lumbar spine during that entire time or the continuous back pain is due to his in-service treatment for low back pain. The Veteran has been diagnosed as having degenerative joint disease/osteoarthritis of the lumbar spine (confirmed by x-ray), which is a condition explicitly recognized as chronic under 38 C.F.R. § 3.309(a) (arthritis). Service connection based on a continuity of symptomatology can be warranted under 38 C.F.R. § 3.303(b) (2013) for chronic diseases. See Walker, 708 F.3d at 1331. In this case, the Veteran is competent to report the onset and chronicity of symptomatology of his back pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board notes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Degenerative joint disease of the lumbar spine falls outside the realm of common knowledge of a lay person. While the Veteran can report the onset and symptoms of back pain, any actual diagnosis of degenerative arthritis of the lumbar spine requires objective testing to diagnose and can have many causes. See Jandreau, 492 F.3d at 1376-77. Whether the symptoms the Veteran experienced in service or following service are in any way related to any current degenerative joint disease of the lumbar spine requires medical expertise to determine because it involves a complex medical matter. 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."). To the extent that the Veteran believes that he has degenerative joint disease of the lumbar spine due to his period of service, including as due to in-service treatment for low back pain, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of his current degenerative joint disease of the lumbar spine is not competent evidence, as the nexus question involved in this case requires medical expertise to determine. Id. Although the Veteran is competent to report the onset and chronicity of symptomatology of his back pain, the Board notes that there are inconsistencies in the evidence of record regarding the onset of his back pain. During his April 2010 VA examination, the Veteran reported that since discharge from service, he had experienced intermittent back pain that occurred with heavy work. Similarly, during his October 2012 VA examination scheduled in conjunction with his claim for service connection, the Veteran reported a long history of low back pain without radiation. On separation examination in June 1976, the Veteran denied having any recurrent back pain, arthritis, rheumatism, or bone or joint deformities. Further, the explanation of the Veteran's August 2005 SSA determination indicated that the Veteran reported that his back problems had begun in December 2002 (several decades after his service separation). The Board finds that the Veteran's lay assertions that he suffered continuous back pain since discharge from service are not credible. The lay statements made at examinations conducted in connection with the Veteran's compensation claim in April 2010 and October 2012 contradict the contemporaneous statements he made upon service separation (denying a history of recurrent back pain, arthritis, rheumatism, or bone or joint deformities). The Board finds that the medical evidence generated at the time of the Veteran's period of service, including the Veteran's statements and responses on medical questionnaires, to be highly probative. These records are contemporaneous with the Veteran's period of service and contain information that is inherently more reliable than that recorded at a later time, as they were not made in connection with filing a claim for compensation purposes. The June 1976 separation examination report shows that the Veteran's spine and joints were normal upon separation from service. The Veteran also denied a history of back pain, arthritis, or bone or joint deformities in June 1976. The Board notes that the Veteran's statements that he made at his VA examinations also contradict statements he made in conjunction with his earlier claim for SSA disability benefits. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs