Citation Nr: 1613117 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 10-08 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1987 to July 1995. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The RO in Roanoke, Virginia, certified the appeal to the Board. In preparing to decide the issue on appeal, the Board has reviewed the contents of the Veteran's electronic Virtual VA and Veterans Benefit Management System (VBMS) claims files. Some VA treatment records are located in Virtual VA. All records are now in these electronic systems. The Veteran testified at a June 2014 Travel Board hearing before the undersigned. A transcript of those proceedings is associated with the Veteran's Virtual VA record. In September 2014, the Board remanded this matter for additional development. That development has been completed, and the claim has since been returned to the Board for further appellate consideration. FINDING OF FACT The Veteran does not have a currently diagnosed disorder of the low back that is related to service. CONCLUSION OF LAW The criteria for service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2015); 38 C.F.R. §§ 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In August 2008, VA notified the Veteran of the information and evidence needed to substantiate his claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided notice as to how disability ratings and effective dates are assigned. VA further fulfilled its duty to assist the Veteran in obtaining relevant evidence to substantiate his claim and by providing a VA examination in November 2014. Hence, VA has fulfilled its duty to notify and assist the Veteran, and adjudication at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the aforementioned Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the issue was explained and testimony was taken concerning the Veteran's contentions and treatment history. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. In addition, there has been substantial compliance with the Board's remand as the AOJ sent the Veteran a letter in October 2014 which requested that he provide information concerning any outstanding medical records that are relevant to his claim and as a VA examination was conducted. The examination was adequate because the examiner reviewed the history, conducted an examination and provided an opinion supported by a rationale. The appeal is now ready to be considered on the merits. Laws and Regulations Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, the Veteran must show (1) a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a present disability exists is satisfied if the Veteran had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Analysis The Veteran seeks entitlement for a low back disability. At the June 2014 Travel Board hearing, he testified that he injured his back during his first duty assignment, and has had back pain since that time. Service treatment records reflect that the Veteran sought treatment for low back pain several times throughout his active duty service. See, e.g., July 1989 and January 1994 Service Treatment Records. He first noted recurrent back pain on an October 1988 report of medical history. In March 1989, imaging showed no evidence of fracture or bony destructive process; no significant congenital defects or degenerative changes; and normal sacroiliac joints. The impression was normal lumbosacral spine. In July 1989, imaging showed a normal lumbosacral spine, with no evidence of focal abnormality, abnormal osteoblastic activity, or healing trauma. July 1993 imaging also found no significant abnormalities. At various times during service, the Veteran was diagnosed with musculoskeletal strain; chronic low back pain; and mechanical back pain. See, e.g., November 1993, September 1994, and May 1995 Service Treatment Records. The March 1995 separation report notes recurrent low back pain, but the separation examination does not note any lower back issues. In January 2008, the Veteran injured his low back while at work. January and February 2008 private medical records note diagnoses of lumbar and thoracic sprains and contusions. These records indicate that the condition improved with treatment, and February 2008 private medical records reflect that the Veteran reported his back was as good as it was prior to the accident. He also reported that he had hurt his back in service and planned to visit VA for treatment. The Veteran filed the current claim in July 2008. VA treatment records reflect that the Veteran sought treatment for low back pain, and reported that it began during active service. See, e.g., May 2014 and December 2011 VA Treatment Records. A May 2014 x-ray of the lumbar spine reflected normal disc spaces and vertebral alignment, with no evidence of spinal stenosis. A June 2014 magnetic resonance image was also normal. See November 2014 VA Examination. In November 2014, a VA examiner reviewed the Veteran's claim file and examined him. The examiner noted chronic lower back pain, and the Veteran manifested forward flexion that was limited to 70 degrees. The examiner noted no arthritis of the thoracolumbar spine had been documented. The examiner opined that the Veteran's chronic or mechanical low back pain was a non-specific pain syndrome with no specific cause related to any spine condition. The examiner determined it was less likely than not that the low back pain was etiologically related to service. In June 2014, the Veteran testified that his low back began hurting during his first active duty assignment, continued throughout his military career, and has continued since his separation. He stated that he had pain and was prescribed muscle relaxers and pain relaxers. He also testified that he did not have a current diagnosis but "Dr. Cox said when I fell off that ladder he did see arthritis in my back." Lay evidence can be competent when the lay person is reporting a contemporaneous medical diagnosis such as arthritis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, imaging tests have all been normal, and the November 2014 VA examiner specifically noted the Veteran's only back diagnosis is "chronic low back pain." Ultimately, the Board finds the imaging records and VA examination indicating the Veteran does not have arthritis to be more probative of the issue than the Veteran's lay statement. In the absence of proof of a current disability, there is no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). "[P]ain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). After reviewing the entire record, the Board can find no competent evidence that the Veteran currently has a diagnosis of a low back disorder, and therefore cannot establish service connection for back pain. Although the Veteran did have a fall and diagnosis of sprains in January 2008, by February 2008, the private treatment records no longer note a diagnosis of sprains pertaining to the back and the Veteran reported his back was as good as it was prior to the accident. In Romanowsky v. Shinseki, the Court of Appeals for Veterans Claims held "that when the record contains a recent diagnosis of a disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency." Romanowsky, 26 Vet. App. 289, 293-94 (2013). In this case the Veteran had a diagnosed disorder approximately six months prior to filing the claim. At the time of the diagnosis, the Veteran was seen after falling off a ladder and landing on his back which caused exacerbation of his chronic low back pain as well as some new lower thoracic pain midline into the right and left paraspinally. See January 2008 medical record of M.K., M.D. Those medical records, however, did not attribute the sprains to service but rather diagnosed "[l]umbar and thoracic sprains status post fall." In late January 2008, the physician noted that the sprains had improved and the Veteran should start physical therapy for the new few weeks to help hasten the recovery. Physical therapy notes include a diagnosis of lumbago or pain in the lumbar region. Dorland's Illustrated Medical Dictionary, 31st. Ed. (2007). Although a diagnosis of sprains was shown six months prior to the claim, they were attributed to a post-service fall by the treating physician. The private medical records dated after January 2008 did not include a diagnosis of sprains and sprains were not otherwise shown to still exist at the time the claim was filed in July 2008. Accordingly, service connection cannot be granted for sprains diagnosed prior to the filing of the claim. It is also noted that 38 C.F.R. § 3.317 pertaining to compensation for certain disabilities occurring in Persian Gulf Veterans is not applicable here as the back symptoms began in the 1980s prior to qualifying service in the Persian Gulf. See 38 C.F.R. §§ 3.2(i), 3.317(a)(i). In sum, the Board finds that the weight of the evidence is against the claim for service connection, and it must be denied. ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs