Citation Nr: 1721779	
Decision Date: 06/14/17    Archive Date: 06/23/17

DOCKET NO.  16-15 327	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. G. LeMoine, Associate Attorney

INTRODUCTION

The Veteran served on active duty from November 1951 to November 1953. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.
 
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The probative evidence of record does not show that the Veteran's current low back disability is causally or etiologically related to any injury, disease, or event incurred during service.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for low back disability are not met.  38 U.S.C.A. §§ 1100, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).  


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

Pursuant to the Veterans Claims Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).   

Concerning VA's duty to notify, the record does not reflect that VA sent the Veteran a VCAA notice letter specifically addressing his low back claim.  However, the Board observes that the Veteran was duly informed of how to substantiate a service connection claim in July 2012 relating to his service connection claim for a left elbow condition, in December 2009 relating to his service connection claim for a dental condition and in February 2005 relating to his service connection claim for hearing loss.  The Board notes that the Veteran received notice of the criteria necessary to establish service connection in the December 2015 rating decision and he received notice of his ability to provide evidence relating to his claim in a December 2015 notification letter.  The Veteran requested a telephone call on his February 2016 Notice of Disagreement.  

During a March 2016 phone call with the RO the Veteran stated he did not know where private medical records relating to his low back disability were, since the providers were either deceased or retired.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrates awareness of what is necessary to substantiate a claim).  Additionally, in the Veteran's April 2017 Appellant's Brief, the Veteran's representative cited 38 U.S.C.A. § 5107, which states a claimant's responsibility relating to supporting a claim.  Finally, neither the Veteran nor his representative has argued that he has been prejudiced in any way by a failure to comply with the VCAA in a formal notice letter, and the Board believes the Veteran has shown sufficient knowledge of the evidence needed to substantiate his claim over the course or this appeal that any notice error is indeed harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).    

For the foregoing reasons, the Board finds that any error in notice is not prejudicial to the Veteran and the Board may proceed with a decision.  See Bernard v. Brown, 4 Vet. App. 384 (1993).     

Furthermore, the Board finds that VA fulfilled its duty to assist the Veteran.  The claims file contains the Veteran's service treatment records, VA treatment records, private medical records and VA examination reports.  

There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  

Legal Criteria

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016).  To establish service connection for a disability, the Veteran must show: (1) the existence of a present 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 incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Analysis

The Veteran contends that he has a current low back disability that is related to an in-service event.  Specifically, the Veteran stated that as a paratrooper he made 25 jumps in two years and during one jump, upon exit from the aircraft, he was thrown out of the door and hit the rear section of the plane.  See, VA Form 21-4138, Statement in Support of Claim, received September 2015.   

The private medical records include an October 2006 low back MRI showing a large central disc herniation at L4 and L5 with extrusion of the fragment.  In addition, the November 2015 VA examiner diagnosed the Veteran with Intervertebral Disc Syndrome (IVDS).  Accordingly, there is evidence of a current low back disability of IVDS and disc herniation.  

As to an in-service injury or event, an April 1953 service treatment record notes the Veteran received treatment after he injured his left shoulder on an authorized parachute jump.  The service treatment records document no specific complaints of back pain during service.  Nevertheless, the Board notes that the Veteran is competent to report symptoms such as pain.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Furthermore, it may not be determined that lay evidence lacks credibility merely because the evidence is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (Fed. Cir. 2006).  The Board finds that, aside from the lack of contemporaneous medical evidence, there is no reason to doubt the Veteran's credibility as to his reports of experiencing back pain in and since his active service.  Therefore, the Board accepts the Veteran's competent and credible statements as evidence that he experienced back pain in service.  Therefore, there is evidence of an in-service event or injury, and the issue remaining for consideration is whether the current low back disability is etiologically related to the in-service events.

To determine whether such an etiological relationship exists, the Board turns to the competent medical evidence of record.  Initially, the Board acknowledges the Veteran's belief that his current low back disability is related to his in-service parachute accident and that he has continued to have problems with his back since the in-service event.  The Board notes that the Veteran is competent to report symptoms such as pain.  See Layno, 6 Vet. App. at 469.  However, he is not considered competent to medically attribute his current low back disability to a specific cause, as doing so requires medical knowledge and expertise that the Veteran has not been shown to possess.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Therefore, his statements do not constitute competent evidence that may be probative in showing an etiological relationship between the in-service injuries and his current low back disability.

In this case, the record is devoid of medical evidence of treatment for low back pain following the Veteran's separation form service in November 1953 through October 2006.  Therefore, the competent evidence of record as to a possible etiological relationship between the current low back disability and the in-service event consists of a November 2015 VA examination and a May 2016 letter from a private physician's office. 

The November 2015 VA examiner reviewed the record, interviewed the Veteran, and examined the Veteran.  The examiner noted the Veteran's in-service parachuting accident, which resulted in injuries to his arm and shoulder, and his history of 25 parachute jumps during service.  The examiner provided a diagnosis of IVDS and herniated L4-L5 discs and opined that the disabilities are not caused by or the result of the in-service trauma.  As a rationale for the opinion, the examiner explained that the Veteran did not develop a low back condition during service, and he first reported a chronic low back problem in 2006.  The examiner further stated that although being a paratrooper causes stress on the back, it does not cause damage that manifests itself many decades after exposure.  

The Veteran was provided a letter in May 2016 from a private physician's office.  The letter states that the doctor was not able to provide an opinion that confidently states the Veteran's back problems are due to paratrooper experiences and not due to degenerative changes with aging.  

The Board finds the November 2015 VA examiner's opinion to be fully informed, fully articulated, and well-reasoned.  See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008).  The examiner was fully familiar with the Veteran's parachute jumping history, his medical history as contained in the record, and the Veteran informed the examiner of his low back disability history.  Even so, the examiner could not provide a favorable nexus opinion.  Additionally, the November 2015 VA examiner's opinion is consistent with the opinion provided by the Veteran's private physician.   
 
In summary, the record shows that, during active service, the Veteran was involved in an accident while parachuting and that the Veteran conducted 25 parachute jumps during service.  The record further shows that the Veteran has a current low back disability.  However, the most probative evidence of record does not show that the Veteran has a current disability that is at least as likely as not causally or etiologically related to his active service or any incident therein, to include an injury to his low back during a parachuting accident.  

In light of the above, the Board concludes that the preponderance of the evidence is against the claim.  As such, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied.  38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

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



____________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs