Citation Nr: 1520199 Decision Date: 05/12/15 Archive Date: 05/26/15 DOCKET NO. 10-19 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a back disability, including status post-fusion of the lumbar spine. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The Veteran had active service from January 1960 to March 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2015, and a copy of the hearing transcript is of record. This appeal was processed using VBMS (the Veterans Benefits Management System). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT A back disability, including status post-fusion of the lumbar spine, did not manifest in service and is not otherwise related to the Veteran's military service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that 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. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For service connection claims, proper notice of what is necessary to substantiate the claim requires that the Veteran be informed of the following five elements: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio, 16 Vet. App. at 187. The record reflects that the RO provided the Veteran with the requisite notice in August 2009, prior to the initial September 2009 rating decision. Therefore, the Board finds that VA's duty to notify the Veteran has been satisfied. Regarding the duty to assist, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issues herein decided has been obtained in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The record contains the Veteran's service treatment records, VA and private medical records. The Board observes that the record was held open for 60 days following the March 2015 hearing to allow the Veteran to submit additional evidence. To date, no additional evidence has been received. The Board acknowledges that, the Veteran has not been afforded a VA Compensation and Pension examination with regard to his claim for back disability. In determining whether the duty to assist requires that a VA examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In this case, no examination is necessary in order to adjudicate the Veteran's claim of entitlement to service connection. Specifically, there is no credible evidence of an injury or other incident in service resulting in his current low back disability. Further, his statements are also the only indication that his asserted disability may be related to active service. While there is an indication that the Veteran has a current back disability, there is no true indication that it is related to active duty. As such, no examination is required. Additionally, the Veteran was afforded the opportunity to give testimony before the undersigned in March 2015. At the hearing, the undersigned identified the issue on appeal and discussed the Veteran's service history and his current complaints. The undersigned sought to identify any pertinent evidence not currently associated with the record that might have been overlooked or was outstanding that might substantiate his claim. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and the Board can adjudicate the claim based on the current record. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Entitlement to service connection may be established on a direct basis with evidence showing (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Arthritis is a chronic disease for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a), 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Analysis The Veteran asserts that he incurred a lumbar spine disability in service. Specifically, he contends that he suffered a twisting injury of his back while removing tandem wheels off a "deuce and a half" around June or July of 1960. See January 2010 Statement in Support of Claim; see also March 2015 Board Hearing Transcript. Turning to the service treatment records (STRs), the Board notes that the October 1959 entry examination was negative for any complaints, treatment, or diagnosis of a spine disability. The Veteran endorsed a history of arthritis or rheumatism on the Report of Medical History. Clinical evaluation of the spine and remaining musculoskeletal system were normal. The STRs are silent with regard to any back complaints or treatment. There was a complaint of malaise and muscular ache in July 1960 with a temperature of 100 degrees. The examiner prescribed CBC (an antibiotic), ASA (aspirin), and chlor-trimeton (an antihistamine). On February 1962 discharge examination, clinical evaluation of the spine and other musculoskeletal was normal. The Veteran endorsed a history of arthritis or rheumatism on the Report of Medical History, there was no mention of any back problems. Post-service, the Veteran reported a history of low back pain during March 2000 private physical rehabilitation for a torn rotator cuff. In June 2000, the Veteran complained of low back pain, more concentrated on the left side. The examiner administered hot packs to the entire back, a 2 pad electrical stimulation to the thoracic spine, and an ultrasound to the low back. Private treatment records dated July 2001 and October 2001 note that the Veteran received epidural steroid injections for his lumbar spine. In October 2001, the examiner diagnosed lumbar stenosis and lumbar facet arthropathy per x-ray. In November 2001, the Veteran underwent radiofrequency thermocoagulation of the lumbar spine to treat his back pain. In February 2002, the Veteran underwent a spinal fusion at the University of Texas Medical Branch (UTMB) in Galveston. A history of bilateral buttock pain and back pain was indicated. The Veteran reported that conservative care, including lumbar epidural injections, activity modification, and medication, had failed. The Veteran was taking 60 mg of MS Contin per day, along with Vicodin. The examiner diagnosed facet spondylosis and lumbar stenosis at L3-4 and L4-5. Private treatment records dated January 2003 to July 2003 note that the Veteran began to experience pain in his back about 4 to 5 months after his February 2002 spinal fusion. X-rays revealed changes of spondylosis at L3-L4 with some disc space narrowing, eburnation and marginal osteophytes. In August 2003, the Veteran underwent a second lumbar fusion. A January 2004 x-ray showed that the L3-4 intervertebral disc space was moderately narrowed with end plate spondylosis. The L4-L5 intervertebral disc space was also mildly narrowed. During a May 2007 private initial evaluation, the Veteran complained of low back pain. He reported that he had his first spinal fusion in 2002 in Galveston (UTMB), and the second fusion with a Dr. Denno in San Antonio in 2004 or 2005. The Veteran stated that he did well, but had a recurrence of back pain in the previous year. An MRI showed moderate degenerative endplate changes at the L2-L3 level. In July 2007, the Veteran underwent an x-stop interspinous process device for indirect decompression of L2 stenosis. During May 2008 treatment, the Veteran complained of back pain. He reported that he underwent a spinal fusion in 2000 at UTMB in Galveston, removal in 2004 by a Dr. Denno, and x-stop in July 2007. VA treatment records through March 2010 show ongoing treatment for chronic back pain. A February 2010 treatment record indicates that the Veteran was scheduled for another lumbar fusion. In a January 2010 statement, the Veteran described an in-service twisting injury of the back. He stated that, following the injury, he had a sharp pain and the next morning his back was swollen and he continued to have pain. He alleged that he reported to sick call several times over the next 10 days and was given medication each time for the pain. The medications did help, and the pain gradually went away over the next week. Sometimes he would have a dull pain when he was working (every 3 to 4 months). During those times, he would get an all-purpose capsule for pain from the nurse. At his discharge examination, he told the doctor that he did not have back pain at that time but he thought it might reoccur. Since his discharge, he has had 4 back surgeries. The first one was 1999 or 2000 in Galveston. The hardware came loose and he had it removed about 18 months later. He also mentioned a spinal fusion in 2007 and an x-stop procedure. During the March 2015 Board hearing, the Veteran reiterated his January 2010 statement; however, he reported that he had a surgery in Galveston about a year after service. He further stated that the record of that surgery was destroyed in a flood. The Veteran had difficulty recalling exact dates of treatment. Upon consideration of the above evidence, the Board finds that a clear preponderance of the evidence is against the Veteran's claim of service connection for a back disability. There is no record of back disability in service and the Veteran did not seek treatment for back pain until 2000/2001, approximately 38 years after discharge from service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). While the Veteran referred to a history of arthritis or rheumatism on his separation examination, he provided a similar history at service entry. There was no reference to back symptoms or disability in the service medical folder. The treatment in July 1960 for general muscle ache, malaise and fever with antihistamine, aspirin, and an antibiotic does not refer to back problems or suggest that a back injury was involved. At his hearing, the Veteran could not recall dates of treatment or many specifics regarding his back problems. For the first time, he testified that he had back surgery within a year of service, but noted that the records had been destroyed. However, the back treatment records do not report a long history of back problems (back to service) and no history of back surgery from the 1960s was noted even in hospital records reflecting subsequent surgery. The Board finds it highly improbable that the history of significant, longstanding back problems would not be noted or that earlier surgery would not be commented on by medical providers when treating his current pathology. The Veteran's statements during treatment and his January 2010 statement to the VA, indicate that his first surgery was in the recent past. The Veteran filed claims for compensation in 2008 and did not mention any back disability. The Board finds it likely that if he thought back disability was due to service and was aware of the compensation program, he would have mentioned this when filing his earlier compensation claims. In essence, the Board does not find convincing evidence that low back disability had its onset in service or continued since that time. While the Veteran has competence to describe injury, treatment and symptoms since service, his statements are not reliable or convincing. As the evidence of record fails to establish clinical manifestations of any arthritis within the applicable time period, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. Based on the above, the Board finds that a back disability was not present in service or for many years later, and the competent and credible evidence of record finds that it is less likely as not related to service. Thus, the claim of service connection for a back disability must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 54-56. ORDER Service connection for a back disability, including status post-fusion of the lumbar spine, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs