Citation Nr: 1417828	
Decision Date: 04/21/14    Archive Date: 05/02/14

DOCKET NO.  11-03 020	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	South Dakota Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

B. Berry, Counsel


INTRODUCTION

The Veteran served on active duty from June 1966 to June 1968.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. 

The Veteran testified during a hearing before the undersigned Veterans Law Judge in June 2011.  A transcript of the hearing is of record.

The Board remanded this matter in August 2013 for further development.  Thereafter, the RO continued the denial of the claims as reflected in the December 2013 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration.

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

The preponderance of the evidence shows arthritis of the lumbar spine was not diagnosed in service or within one year after discharge from service and the Veteran's current low back disabilities are not caused by or related to active military service.


CONCLUSION OF LAW

A low back disability was not incurred in or aggravated by active military service, nor may arthritis of the lumbar spine be presumed to have been so incurred.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).  
REASONS AND BASES FOR FINDING AND CONCLUSION

I. Notice and Assistance

The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 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 C.F.R. § 3.159(b).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the 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 (2006).  Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id.

A letter dated in June 2009 satisfied the duty to notify provisions prior to the initial AOJ decision.  Specifically, the letter advised the Veteran what information and evidence was needed to substantiate his service connection claim for a back disability.  He was notified of how VA determines the disability rating and effective date if his claim is granted.  The letter also informed the Veteran of his and VA's respective duties for obtaining evidence.  The letter requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran.  

Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The claims file contains the Veteran's service treatment records, VA treatment records, private treatment records, VA examination reports dated in September 2009 and October 2013, lay statements from the Veteran and a transcript of the June 2011 Board hearing.

The October 2013 VA examination report shows that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating him.  The examiner documented the results of the evaluation and provided a diagnosis with respect to the Veteran's low back disability.  The examiner provided a negative medical opinion with an explanation. Therefore, the October 2013 VA examination is adequate for adjudication purposes.

This issue was remanded in August 2013 to obtain a VA examination and opinion.  The claims file contains a VA examination and opinion dated in October 2013 that addresses the questions raised by the Board and it was supported by an adequate explanation.  Accordingly, the Board finds that there has been substantial compliance with the August 2013 remand directive.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The record presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration.  Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. 

II. Criteria and Analysis

The Veteran claims that his current low back disabilities are related to an in-service back injury.  He asserts he injured his back during boot camp and when he slipped on some ice while stationed in Germany.  The Veteran contends that he has had recurrent low back pain since active military service.

Service connection may be granted to a veteran for a disability resulting from a disease or injury incurred in or aggravated by military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).  Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In assessing whether the Veteran is entitled to service connection for a back disability, the evidence of record must show that the Veteran has a current diagnosis of the claimed disability.  An October 2013 VA examination shows that the Veteran has a current diagnosis of degenerative arthritis of the lumbar spine.  The September 2009 VA examiner also diagnosed the Veteran with degenerative disc disease of the lumbar spine.  Thus, the Board finds that the Veteran has a current diagnosis of the claimed disability.

The Veteran's service treatment records show that the Veteran sought treatment for contusion and muscle spasms of the right hip in December 1965.  A December 1967 service treatment record reveals that the Veteran sought treatment for lumbosacral pain after he slipped on ice striking his pelvis.  He was diagnosed with contusion of the left hip and lumbosacral muscle spasms.  X-rays and physical examination of the hips were negative.  A December 1967 service treatment record notes that the Veteran sprained his back.  A March 1968 treatment record also notes that the Veteran has lumbosacral pain with no radiation of pain into the legs.  The Veteran's separation examination in March 1968 reveals that the Veteran's spine was evaluated as clinically normal and the Veteran did not report a history of back problems in the March 1968 report of medical history.  

The first evidence of any complaints of back problems after discharge from military service was in a November 1973 report of medical history form, approximately five years after discharge of military service.  The first medical evidence of a back disability (mild hypertrophic spurring) was in February 1988, approximately 20 years after discharge from active military service.  The October 2013 VA examiner noted that this was the first diagnosis of arthritis of the lumbar spine.  

The Board recognizes that the Veteran contends that he has had a continuity of back pain since active military service.  However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in section 3.303(b) restricts itself to chronic diseases found in 38 C.F.R. § 3.309(a).  Walker, 708 F.3d at 1339) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases.").  Degenerative disc disease of the lumbar spine is not considered a chronic disease under section 3.309(a) and therefore, the Veteran may not establish continuity of symptomatology in lieu of medical nexus. 

The Board observes that the Veteran has also been diagnosed with arthritis of the lumbar spine.  Arthritis is recognized as a chronic disease under section 3.309(a). However, the Veteran's service treatment records do not document a diagnosis of lumbar spine arthritis during active military service.  Furthermore, there is no competent medical evidence of record indicating that the Veteran's complaints of low back pain in service or the diagnosis of muscle spasm/strain of the low back in service are related to the current diagnosis of arthritis of the lumbar spine.  The Federal Circuit has held that section 3.303(b) only applies to a chronic disease as listed under section 3.309(a) that was shown in service.  Walker, 708 F.3d at 1339.   Thus, the Veteran may not establish continuity of symptomatology in lieu of medical nexus with respect to arthritis of the lumbar spine.

Based on the foregoing, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current low back disabilities and his active service.  In this regard, the October 2013 VA examiner determined that the Veteran's current low back disability was less likely than not incurred in or caused by the claimed in-service injuries or events.  The examiner noted that the Veteran's statements in 1973 and those during the October 2013 VA examination were deemed credible.  He explained that the Veteran had injuries in service, but the service treatment records only comment on right hip pain, pain at the intercostal area of T11 and muscle spasm of the back.  The examiner noted that service treatment records document a fall on the ice with lumbosacral pain and lower back muscle spasm in December 1967.  There was also a notation in March 1968 of lumbosacral pain with no radiation of pain into the legs that was treated with muscle relaxants.  The examiner determined that there was no documentation of significant back problems during service.  The examiner also observed that the Veteran's back was checked normal as part of the Veteran's separation examination.  The examiner concluded that there was no documented proof of continuing back pain or problems at the time of separation of service.  The examiner noted that the enlistment examination to the reserves in 1973 reveals that the Veteran worked as a heavy machine operator and he was bothered by recurrent back pain.  This was five years after discharge from active military service and there was no documentation of further back pain or injury between 1968 and 1973.  The examiner observed that the enlistment examination and orthopedic referral in 1973 indicates that the Veteran did not have a significant back problem in 1973.  The examiner also noted that the diagnosis of arthritis was not made until 1988.   The Board has determined that VA medical opinion is highly persuasive and probative as the examiner reviewed the record and provided a clear explanation for his opinion based on the evidence of record and medical expertise.  The Board also finds it probative that the record does not contain any medical opinions indicating that the Veteran's current low back disabilities are related to active military service.

The Board acknowledges that the Veteran provided a lay opinion that his lumbar spine disability is related to his active military service and that his recurrent low back pain since active military service is related to his current low back disabilities.  
Lay persons can provide an account of observable symptoms, such as low back pain in service with a continuity of symptomatology since service.  See Jandreau, 492 F.3d at 1377.  However, lay assertions regarding certain medical matters, such as an opinion whether lumbosacral disc disease and arthritis of the lumbar spine are related to active military service or recurrent continuity of low back pain since service, fall outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The Veteran is not a licensed health care professional; therefore, the lay evidence offered by him is not competent medical evidence and does not prove a relationship between the Veteran's current low back disabilities and active military service.

In conclusion, the evidence of record shows the probative medical opinions provide evidence against the claim that his current low back disability is related to military service.  Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for a low back disability and service connection for a low back disability is not warranted.


ORDER

Entitlement to service connection for a low back disability is denied.




____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs