Citation Nr: 1416551 Decision Date: 04/14/14 Archive Date: 04/24/14 DOCKET NO. 07-16 877 ) 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 Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active service from August 1965 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appellant provided testimony before Board at the RO in August 2009. The Board previously remanded this case in September 2009 and August 2011. The Board notes that claims seeking service connection for bilateral upper and lower extremity peripheral neuropathy remain pending. The record reflects that the RO has recently re-started development on those issues, and is now actively developing the issues for adjudication. Upon reviewing the development that has occurred since September 2013, the Board finds there has been substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). FINDINGS OF FACT 1. While on active duty, the appellant sustained an injury to the low back. 2. The appellant now has degenerative disc disease of the lumbar spine. 3. Medical evidence shows that the appellant's low back disability is not related to his military service or any incident therein. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA)- Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and 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) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (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. Additionally, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, letters from the RO and the AMC advised the appellant of the evidence and information necessary to substantiate his service connection claim, as well as he and VA's respective responsibilities in obtaining such evidence and information. Communications in November 2006 also informed the appellant of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman. Readjudication after the initial decision of November 2006 cured any timing deficiency. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, no further development is necessary with respect to the duty to notify. The appellant was afforded VA examinations over the course of this appeal, the most recent in November 2013. The results from the examinations are of record. The examinations and subsequent reports involved a review of the available medical records and the results of examining of the appellant. The Board therefore finds that the medical information is adequate for ratings purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the foregoing reasons, the Board finds that VA has fully satisfied the duty to assist. II. Laws and Regulations-Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). In order to establish service connection for the claimed disorder, there must be evidence of (1) current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). III. Facts and Discussion The appellant asserts that he injured his back while he was at Survival, Evasion, Resistance, and Escape (SERE) School. He has maintained that the injury was severe enough that he was medevaced from the exercise location for immediate treatment. The appellant has also intimated that he continued to experience back pain in service but did not tell the appropriate medical personnel about the symptoms because he wanted to keep his flight status. He maintains that since service, he has continued to experience low back problems until today. He is currently treated for degenerative disc disease. As an aside, the Board has found his account concerning the incident in service credible. In conjunction with his claim for benefits, the appellant has undergone several medical examinations. For example, the appellant attended a VA examination in May 2010 that produced a diagnosis of degenerative disc disease of the lumbar spine. The examiner concluded that the degenerative disc disease was not related to service, because there was no documentation of the injury or any complaints of low back pain in service. In the August 2011 remand, the Board determined that the May 2010 opinion was inadequate, because it inappropriately discounted the appellant's description of the in-service injury. The Board remanded the case for the same examiner to offer a new opinion that took into account the appellant's credible description of the in-service back injury. The Board specified that the examiner was to offer a rationale for any opinion expressed. In September 2011, the examiner provided an addendum opinion. In its entirety, the opinion stated: Taking into account the veterans [sic] description of his injury and symptoms, and discounting the lack of supporting documentation[,] the veterans [sic] current condition, [d]egenerative disc disease of the lumbar spine, noted to be mild to moderate on X-ray, is consistent with natural aging (62 yoa) and LESS LIKELY THAN NOT caused by, related to, or worsened beyond natural progression by military service or the reported events of 1969 (approx 41 yrs ago). The Board remanded the appeal to the AMC so that another, more complete examination could be performed. This time, the examiner acknowledged that the appellant had been injured in service; however, the examiner then provided the following comments: After carefully reviewing the C-file, veteran's account of his in-service back injury, all pertinent medical complaints, symptoms and clinical findings, it is my opinion that there is insufficient evidence to warrant or confirm a diagnosis of a back condition in service. The current diagnosis of lumbar DDD, 38 years after discharge from military is a degenerative process involving the discs and vertebral bodies, consistent with age. A study of degenerative disc diseases . . . shows that age, familial aggregation (genetics), and intrinsic disc loading (body weight compared with size of the disc) were the predominant predictors of degenerative disc disease. In other words, based upon his research (and after examining the appellant and reviewing his file), the examiner concluded that the appellant's low back disorder was not related to service but was instead a result of the aging process. There is no other medical evidence of record that provides an opinion as to the etiology of the current disorder of the low back. That is, none of the medical records links the low back disability with the appellant's service. The appellant has been awarded Social Security Administration (SSA) benefits; however, these benefits were awarded because he suffers from the residuals of cerebrovascular accident. The SSA records do not indicate that the appellant was awarded benefits because of a low back disorder. Moreover, there is no evidence linking the back disorder and military service or any incident therein. Turning to the written and oral statements provided by the appellant, the Board acknowledges that the appellant is competent to state that he has experienced pain and restriction of movement of the back. Nevertheless, the Board must determine the credibility of such assertions. The Board finds that the statements made by the appellant, to the effect that he now suffers from a back disorder that was caused by his military service inconsistent with the record. Initially, it is noted that when the appellant was discharged from service, nothing was mentioned concerning any type of low back disorder. Moreover, from shortly after he was discharged from service, the appellant was aware of the VA compensation program, as evidenced by the fact that he filed a claim of vocational rehabilitation benefits following service. Yet, it was nearly 36 years before he filed a claim for service connection for a low back disorder. In other words, even though the appellant has asserted that his low back bothered him while he was on active duty and continued to cause him discomfort after he was released from service, it was many years before the appellant raised the issue of service connection involving the low back. Thus, it would appear that the appellant was not experiencing chronic symptoms immediately following service, or, if he was, he did not attribute any pain or restriction in movement or other symptoms to his active service. Moreover, following service he repeatedly sought treatment for various problems; however, it was not until 2006 that he actually presented a claim for benefits to VA. The Board finds his statements inconsistent with his actions after discharge from active service. In sum, the Board concludes that the appellant's statements are not credible. The Board finds that the appellant's reports concerning symptoms and manifestation he purportedly began experiencing in service or shortly thereafter and then continuously since his discharge from active service not credible. Even assuming the unreported injury in service, the medical evidence establishes that his current disability is not the type of disability related to any such injury. As explained, his disability is due to the aging process. Thus, the Board acknowledges the Veteran's contention that he did not report the disability because of his flight status; however, the medical evidence (the November 2013 examiner's opinion) weighs against his credibility. ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs