Citation Nr: 1642433 Decision Date: 11/03/16 Archive Date: 11/18/16 DOCKET NO. 06-30 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and Appellant ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served as a member of the Texas Army National Guard for over 22 years until his discharge in May 2006. Over the course of that service, he had varying periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). He also had periods of active duty in January 2005 and from July to August 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision issued by the Department of Veterans Affairs (VA). In September 2008, the appellant and his wife testified at a personal hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of that testimony has been associated with the claims file. In an August 2009 decision, the Board remanded the Veteran's low back claim for additional development. The Veteran died in December 2009. In June 2011, the RO substituted his surviving spouse as the appellant. 38 U.S.C.A. § 5121A (West 2015). In July 2013, the Board remanded the appeal in order to afford the appellant a hearing. The hearing took place in January 2015. VA law requires that a VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c) (West 2014); 38 C.F.R. § 20.707. Additionally, when two hearings have been held by different VLJs concerning the same issue or issues, the law also requires that the Board assign a third VLJ to decide that issue or issues because a proceeding before the Board must be assigned either to an individual VLJ "or to a panel of not less than three members of the Board." 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3; Arneson v. Shinseki, 24 Vet. App. 379 (2011). Accordingly, in July 2016 the Board sent a letter to the Appellant to determine if she wanted an additional hearing. In an August 2016 letter, the Appellant waived her right to appear for a third hearing. FINDING OF FACT The Veteran's low back disability was not incurred in service and is not otherwise related to an injury or disease in service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 101(24), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Here, a September 2004 letter fulfilled VA's duty to notify the appellant in connection with his claims. The correspondence informed him of the elements of a claim for service connection, described the evidence and information needed to substantiate the claims, and set forth the respective responsibilities of VA and the Appellant in obtaining such. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). While the letter did not include information regarding VA policies and practices with respect to assignment of effective dates and disability evaluations, such omission is harmless, as service connection is not granted, and hence no effective date or evaluation shall be assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has also satisfied its duty to assist the Veteran in the development of his claim. This duty includes assisting with the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical and personnel records have been obtained and considered regarding the appeals. There is no indication from the record that further development would aid in substantiating the Veteran's claims in this regard. The Veteran was afforded a posthumous VA medical opinion in January 2011, and the Board obtained an expert medical opinion through the Veterans Health Administration in January 2016. 38 C.F.R. § 20.901(a) (2015). There is no indication that these opinions, in the aggregate, are inadequate with respect to the Appellant's claim. Thus, further examination is unnecessary and will not advance the Appellant's interests. In August 2009, the Board remanded the claim to the agency of original jurisdiction (AOJ) for a VA spine examination. The Veteran was afforded the requested VA examination in January 2011. In July 2013, the Board remanded the claim so the Appellant could be afforded a Board hearing. The hearing occurred in January 2015. As such, the Board finds that there has been substantial compliance with the remand instructions. The United States Court of Appeals for Veterans Claims (Court) has concluded that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The September 2008 and January 2015 hearings were conducted in accordance with the regulatory duties of Board personnel to "explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position." 38 C.F.R. § 3.103(c)(2); see Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearings, the undersigned VLJs solicited information as to evidence that could substantiate the claim; and sought further opinions. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. As there is no indication that any additional notice or assistance could aid in substantiating these claims, the Board finds VA has satisfied its duties under the VCAA and proceeds with consideration of the Veteran's appeal. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes that it was incurred in active service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Service connection generally requires 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 present disability and the disease or injury during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States; at all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for veterans benefits based on a period of duty as a member of a state National Guard, a member of the National Guard must have been ordered into Federal service by the President of the United States, 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. ACDUTRA is full time duty for training purposes performed by Reservists and members of the National Guard pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and members of the National Guard pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Service connection will be granted for disability resulting from disease or injury incurred during ACDUTRA or injuries incurred during INACDUTRA. See 38 U.S.C.A. §§ 101(24), 106 (West 2014); 38 C.F.R. § 3.6. Service connection is not legally merited when the disability results from a disease process during INACDUTRA. See, e.g., Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111. In relevant part, 38 U.S.C.A. 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Analysis The evidence shows that the Veteran had arthritis of the lumbar spine during the pendency of the appeal. See Private Treatment Records; September 2008 Hearing Transcript. Thus the issue that remains disputed is whether the Veteran's low back disability was caused by an injury incurred in service. The service treatment records reflect that in January 1992 the Veteran complained of sacral back pain. The medical service provider examined the Veteran's back and reported no problems. The Veteran also complained for lower back pain in June 1999 following use of a high pressure hose. The medical service provider indicated that the Veteran had decreased range of motion in the lower back in all directions. The Veteran denied previous back pain and showed no sign of paravertebral muscle spasm, crepitation, or locking. The indication from the examining doctor is that the Veteran was in some duty status, and if so any injury caused by the hose would render his service qualifying for purposes of service connection. Notably, in a February 2000 Report of Medical History, the Veteran denied recurrent back pain. Similarly in December 2000 and April 2002 Annual Medical Certificates, the Veteran denied back pain. An October 2003 note in the Veteran's private treatment records indicates that while being treated for right pneumothorax, he reported back pain or difficulties. In a September 2008 letter, Dr. W.G. reported that the Veteran had had severe back pain "ever since the procedure was done for his pneumothorax." In a January 2011 VA examination report, the examiner opined that the Veteran's lumbar spine problems were less likely than not related to an acute lumbar strain in service. The examiner reasoned, "There was no demonstration of chronicity. Acute lumbar strain usually becomes asymptomatic in a month or less." In a December 2015 medical expert opinion, the examiner opined that it is unlikely that the Veteran's claimed back disability was related to his June 1999 injury. The examiner reasoned, in part, that radiographic evidence of degenerative spine changes was almost universal with age and not necessarily associated with symptoms. The examiner further reasoned that the there was no clear evidence of a back problem between 1999 until many years later-after the diagnosis of pneumothorax and lung cancer. The examiner noted that pleuritic irritation could mimic back pain. In the March 2016 VHA opinion, the physician opined that it was less likely than not that the Veteran's claimed current disability had its onset in service. The examiner reasoned, in part, that he served twenty two years with only three single complaints in his record. The back injury in June 1999 that triggered a sick call visit was not significant enough to cause twenty years of ongoing spine complaints. The examiners opinions are adequate and highly probative on the question at hand. The opinions considered an accurate history, were definitive and supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the Veteran and Appellant are competent to report the Veteran's symptoms and when they began, the evidence indicates that the Veteran's complaints of low back pain while on duty resolved; he reported in his service personnel records that he did not have back pain on several occasions after his initial in-service complaint. Neither the Veteran nor the Appellant have asserted that his back pain had been continuous since service. See September 2008 Hearing Transcript; January 2015 Hearing Transcript. Furthermore, in September 2008 the Veteran reported that he had a lot of pain in his back but that there was a "domino effect" after his pneumothorax, which tends to suggest that the onset of his pain was after his spontaneous pneumothorax in October and November 2003. The pneumothorax was determined to be in the line of duty, but the December 2015 medical opinion indicates that the symptoms reported in conjunction with the pneumothorax were not manifestations of a back disability, but of symptoms that mimicked a back disability. In sum the weight of the evidence is against the grant of service connection for a low back disability and reasonable doubt does not arise. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a low back disability is denied. Mark D. Hindin JOHN L. PRICHARD Veterans Law Judge Acting Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs