Citation Nr: 1417085 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 05-33 248 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a claimed lumbar spine disorder to include degenerative disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. He also served in the Army National Guard from February 1979 to January 1997 that included a period of active duty for training (ACDUTRA) in June 1995. This matter initially came before the Board of Veterans' Appeals (Board) from February 2004 and January 2005 rating decisions by the RO. In a January 2008 decision, the Board reopened the Veteran's claim of service connection and remanded the matter to the RO for additional development and readjudication. The Board also remanded the issue for further development in February 2012, July 2012, February 2013 and May 2013. The development has been completed and the case has been returned to the Board for adjudication. In his Substantive Appeal, the Veteran requested a personal hearing with the Board. However, he withdrew his request in writing in February 2007. A review of the Virtual VA paperless claims processing system records reveals that additional documents in the Virtual VA paperless claims processing system are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDING OF FACT The Veteran's pre-existing lumbar spine disc surgery residuals is not shown to undergone an permanent increase in severity beyond natural progression by an injury sustained during his period of ACDUTRA in June 1995. CONCLUSION OF LAW The Veteran's pre-existing lumbar spine disability manifested by the residuals of disc surgery was not aggravated by his period of ACDUTRA in June 1995. 38 U.S.C.A. §§ 1110, 1153, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of 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 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 this case, in January and July 2008 letters issued subsequent to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his 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 letters advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. After issuance of the letters and opportunity for the Veteran to respond, the July 2013 (most recently) Supplemental Statement of the Case (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. In addition, the Veteran was afforded multiple VA examinations in connection with his claim for service connection. Further, the Board obtained an opinion from a medical expert regarding the etiology of the claimed lumbar spine disorder. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As will be discussed, the Board finds that the medical opinion obtained in this case is adequate, as it is predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The expert considered all of the pertinent evidence of record, including the contentions and statements of the appellant and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Finally, the Board is aware that this claim of service connection was most recently remanded in May 2013 for additional development of the record. The remand directed that adequate opinion as to etiology of the claimed lumbar spine disorder be obtained and associated with the claims file. In this case, adequate opinion regarding etiology has been obtained. Therefore, the Board finds that there has been substantial compliance with the May 2013 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). In summary, 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 him and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for a VA examination. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any defect in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such defect is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations The applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered, or disease contracted, in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment. 38 U.S.C.A. § 1111. The term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but it will be considered together with all of the other evidence in question as to the commencement of the disease or disability. 38 C.F.R. § 3.304(b)(1). Determinations of whether a condition existed pre-service should be based on a thorough analysis of the evidentiary showing and careful correlation of all medical facts, with due regard to manifestations, clinical course and character of the particular injury or disease or residuals thereof. Id. An injury or disease that has been determined to be preexisting will then be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. The burden to show no aggravation of a pre-existing disease or disorder during service lies with the government. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). However, the presumption of aggravation is rebutted where there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In deciding an aggravation claim, after having determined the presence of a preexisting disability, the Board must determine whether there has been any measurable worsening of the disability during service and whether this worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). Background The private treatment records dated prior to June 1995 show that the Veteran had sustained various back injuries at work in the private sector and in connection with motor vehicle accidents. These records document the Veteran's complaints of chronic musculoskeletal low back pain in September 1974 and subsequent lumbar laminectomy for removal of a disc fragment at L5-S1 on the right in March 1982. In June 1983, acute lumbosacral strain was assessed; the Veteran reported experiencing back pain after doing heavy lifting while in the Reserve. In May 1984 and September 1986 private treatment records, musculoskeletal ligamentous strain was diagnosed. In October 1987, a ruptured lumbar disc at L5-S1 on the left was diagnosed, and the Veteran underwent a lumbar laminectomy. The National Guard treatment records include periodic examinations in February 1979, December 1984, November 1988 and October 1992 that included findings of a normal spine. A June 1995 Statement of Medical Examination and Duty Status noted that the Veteran complained of back pain after lifting boxes onto a truck. A medical opinion in the report indicated that the accident was incurred in the line of duty. A member of the unit noted that the Veteran was present for duty and was on ACDUTRA during the time of the injury. The additional medical records from Womack Army Medical Center confirmed that the Veteran was treated for low back strain in June 1995. It was also noted that the prior medical history included two earlier back operations with the last one being performed in 1987. An examination at that time revealed that back flexion caused pain. Straight leg raising was negative. The assessment was that of low back strain. The Veteran was placed on profile for 7 days. An August 1995 periodic examination report indicated that an examination of the Veteran's spine was normal. The Veteran did report having recurrent back pain. A diagnosis of lumbar spine degenerative disc disease was noted. An August 2010 report of VA examination noted a diagnosis of moderately severe lumbar spondylosis from L4 through S1 with milder changes in the upper lumbar spine. The VA examiner observed that the Veteran reported sustaining an injury while on active duty in 1983 and in the National Guard sometime between 1979 and 1998. The examiner found no documentation of such incidents, but observed that the Veteran had indicated a history of recurrent back pain on a report of medical history in August 1995. The VA examiner noted that the Veteran had been involved in motor vehicle accidents in 1981 and 2002 and concluded that it was less likely as not that the Veteran's current back pain was a continuation of the pain noted in the military. An April 2012 report of VA examination included the examiner's opinion that the Veteran's current back pain from degenerative disc disease was less likely as not a continuation of the pain noted in the military. To that end, the examiner noted the Veteran's history of motor vehicle accidents and previous lumbar laminectomy. An August 2012 report of VA examination included the examiner's opinion that the Veteran's current lumbar spine disorder was less likely than not incurred in or caused by a claimed in-service injury, event or illness. The VA examiner explained that the Veteran's current back problems started with an injury on the job and that the two surgeries were a result thereof. The examiner found that the back strain sustained in the National Guard unloading a truck was "self limited." In a February 2013 report of VA examination, the examiner reiterated the opinion and conclusion reached in the August 2012 VA examination report. In a June 2013 report of VA examination, the examiner, again, opined that the current back disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran's current back disorder was the result of significant back injury to his low back sustained on the job (civilian) that required back surgery. The examiner reported that the back strain sustained in the National Guard was after this prior on-the-job injury and surgery. Further, the back strain incurred on National Guard duty did not last long, and the Veteran did return to duty without residuals. The examiner concluded that "the on the job injury and surgery have residuals which the Veteran [was] aware of and recognize[d]." In September 2013, the Board requested that a VHA medical expert review the claims file to determine whether it was at least as likely as not that the lumbar spine disability, which preexisted his period of ACDUTRA was aggravated by the injury sustained during the period of ACDUTRA in June 1995 when the Veteran strained his low back while lifting metal boxes onto a truck. In December 2013, the VHA medical expert noted the Veteran's preexisting lumbar spine disorder (from lumbar spinal surgeries and a serious motor vehicle accident in the 1980s) and noted that the Veteran sustained back strain injuries while on duty in the National Guard in June 1995. However, the VHA medical expert found that the 1995 episode was self-limiting and caused no significant impairment or aggravation of his lower back. The VHA medical expert found that the Veteran's most significant low back problems were related to the 1982 and 1987 surgeries and the subsequent motor vehicle accidents. Thus, the VHA medical expert opined, after careful review of the entire claims folder, that the Veteran's lumbar spine disorder which preexisted his period of ACDUTRA was not aggravated by the injury sustained during the period of ACDUTRA in June 1995. The VHA expert found that the low back strain sustained in June 1995 was not likely to have worsened beyond natural progression the Veteran's spine health. Analysis As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. In this case, the evidence clearly demonstrates that the Veteran had a lumbar spine disability that existed prior to his period of ACDUTRA in 1995. Having determined that the Veteran had a pre-existing lumbar spine disorder, the next step involves examining whether there has been any measurable worsening of the disability during service and whether this worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). If there is an increase in severity, there is a rebuttable presumption of aggravation. 38 U.S.C.A. § 1153. Here, the Board finds that there was no increase in severity of the lumbar spine disorder as result of injury sustained during a period of ACDUTRA. While the Veteran's service treatment records revealed that the Veteran was treated for low back strain as a result of injury sustained in June 1995 and placed on profile for 7 days, an August 1995 periodic examination of the spine was normal. He continued to serve without limitation in the Reserve. Moreover, in December 2013, a VHA medical opinion was obtained to address the issue of whether the Veteran's preexisting lumbar spine disorder was aggravated by the injury sustained during the period of ACDUTRA in June 1995 when the Veteran strained his low back while lifting metal boxes onto a truck. The expert opined, after careful review of the entire claims folder, that the Veteran's lumbar spine disorder, which preexisted his period of ACDUTRA, was not aggravated by the injury sustained during the period of ACDUTRA in June 1995. The VHA medical expert found that the 1995 episode was self-limiting and caused no significant impairment or aggravation of his lower back. Further, the expert determined that the Veteran's most significant low back problems were related to the 1982 and 1987 surgeries and the subsequent motor vehicle accidents. Thus, on this record, the VHA medical expert concluded that the low back strain sustained in June 1995 did not cause a worsening of the Veteran's preexisting lumbar spine disorder beyond natural progression. Moreover, the post-service medical records on their own do not serve to establish chronic worsening of the Veteran's low back disability as the result of the injury in 1995 or due to another event or incident of his period of active service. As such, they serve to support the opinion of the VHA medical expert offered in December 2013, as well as the reports of the August 2012, February 2013, June 2013 VA examinations noting that the Veteran's current back disorder was the result of significant back injury to his low back sustained on the job (civilian) that required back surgery and that the back strain sustained in the National Guard unloading a truck was "self limited" (i.e., did not last long, and the Veteran returned to duty without residuals)). Accordingly, the evidence in its totality establishes that the Veteran's preexisting lumbar spine disability was not aggravated as a result of injury sustained during the Veteran's period of ACDUTRA in June 1995. The Board also considers the Veteran's lay statements that his lumbar spine disorder was worsened by service. The Veteran is competent to testify as to his observation of worsening lumbar spine symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009. However, in this case, the more probative evidence, the reasoned opinion of the trained professional, outweighs the Veteran's general lay assertions For the foregoing reasons, the evidence establishes that the preexisting lumbar spine disorder did not increase in severity as a result of injury sustained during period of ACDUTRA in June 1995. Beverly v. Brown, 9 Vet. App. 402 (1996). Consequently, as the benefit of the doubt doctrine is not for application, the claim of service connection for a lumbar spine disorder must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Service connection for a lumbar spine disorder is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs