Citation Nr: 1615541	
Decision Date: 04/18/16    Archive Date: 04/26/16

DOCKET NO.  12-24 055	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for degenerative disc disease of the lumbar spine.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Stephen LoGerfo, Associate Counsel


INTRODUCTION

The Veteran had active service from August 1971 to June 1978. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston Texas that denied service connection for degenerative disc disease or arthritis of the lumbar spine.   

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2016 video hearing, and a transcript of the hearing has been associated with the claims file. 


FINDING OF FACT

There is no nexus between the Veteran's current mild degenerative disc disease disability and his complaints of back pain in service. 


CONCLUSION OF LAW

The criteria for service connection for a lumber spine disability have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION


I. The Duties to Notify and Assist

When VA received a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  Here, the Veteran was provided with the relevant notice and information in a March 2011 letter. 

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination which, contained a description of the history of the diability at issue; documented and considered the relevant medical facts and principles; and recorded the relevant findings for his right ear hearing loss. The record was also held open for 60 days in January 2016 to obtain any recent treatment records. The Board finds that VA's duty to assist with respect to obtaining relevant records and examinations has been met. 

II. Service Connection

Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131.  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2015).

Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), to include arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  Moreover, if a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  

Element (1) of service connection requires a current disability. In this instance, the July 2011 VA examination indicates that the Veteran has mild degenerative disc disease of the lumbar spine that is consistent with his age. Therefore, element (1) of service connection is met. 

Element (2) of service connection requires an in-service incurrence or aggravation of a condition. The Veteran testified at the hearing that he injured his back during basic training performing "TA-50" maneuvers. The Veteran also testified that he went to the sick hall in September 1970 and October 1971 for lower back pain when he was building barracks while stationed in Germany. 

The Board notes that service treatment records corroborate the Veteran's testimony that he complained of lower back pain. In October 1971, service records show that the Veteran complained of back pain with no history of an injury and an x-ray was ordered. The October 1971 x-ray revealed no abnormal findings or active disease process. The Veteran's June 1978 separation examination indicates that he had reported back pain while in service. The Board notes that while there is no diagnosis of arthritis or degenerative disc disease in service, the Veteran was treated for lower back pain at least one time. Therefore, element (2) of service connection is met. 

Element (3) of service connection requires a nexus between the current disability and the Veteran's in-service injury. The Board notes that there were no abnormal findings at the June 1978 separation examination outside of the Veteran's subjective complaints of recurring back pain. Moreover, the Board notes that the first documented instances of degenerative disc disease or arthritis appear to have been in July 2007. In July 2007, small spurs were noted at L3 and L4 of the lumbar spine. In December 2008, degenerative disc disease consistent with age was noted in an MRI. In March 2010, mildly reduced extension of the lumbar spine was noted after the Veteran reported pain while carrying two 45 pounds weights for 50 feet as part of his employment duties. 

The Veteran also had a VA examination in July 2011 to obtain an opinion as to whether there was a nexus between the Veteran's current disability and his in-service injury. The July 2011 VA examination also noted that the Veteran had mild degenerative disc disease appropriate for his age. The examination also noted that there was no evidence to support an injury or a continuation of back problems between 1978 and 2006. Moreover, the examination did not note any diagnoses of arthritis in service. 

The Board also considered the Veteran's private treatment records. In August 2012, Dr. Leo Edwards wrote a letter indicating that the Veteran had a history of lower back pain with minimal to moderate disc bulging with slight impression to the thecal sac with some neuroforaminal narrowing. He also noted that the bulging was worse at L3-4 and L4-5. In February 2016, Dr. Cuda filled out a disability form that opined that the Veteran's current LBP was related to service because the service records show acute injury and subsequent complaints related to ongoing degenerative disc disease. 

The Board does not find Dr. Cuda's opinion to be supported by the evidence of record. The Board finds that there is no evidence of an acute injury in service that produced any objective medical findings of degenerative disc disease or arthritis. Additionally, the Board notes that there are no complaints of injury or treatment for back problems after 1972. Moreover, the Board notes that the Veteran has no reported complaints of or treatment for lumbar spine problems from separation in 1978 until 2006. The Board notes that the Veteran has treatment records throughout the 1990s and early 2000s at Brooke Army Medical Center that do not show any complaints of or treatments for arthritis or degenerative disc disease. 

Based on the evidence and the opinion of the VA examiner, element (3) of service connection has not been met in that it is not shown that there is an etiological relationship between in-service occurrences of back pain and the Veteran's current degenerative disc disease. 

Additionally, there is no probative evidence that the Veteran's diagnosed lumbar degenerative arthritis and degenerative disc disease manifested within one year of service separation.  Therefore, the presumptive provisions regarding chronic diseases are inapplicable.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309.  Likewise, there is no probative evidence that the Veteran experienced symptoms of arthritis in service, therefore, it cannot be presumed to be incurred in service.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In sum, there is no probative evidence that the Veteran's current lower back disorder, diagnosed as degenerative arthritis and degenerative disc disease, is related to his active service.  Because the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a back disability, there is no reasonable doubt to be resolved, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49.  


ORDER

Entitlement to service connection for a lumbar spine disorder is denied.




____________________________________________
M. Tenner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs