Citation Nr: 1752283 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-06 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for chronic lower back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD M. Elliot Harris, Associate Counsel INTRODUCTION The Veteran had a period of active duty service from July 1971 to July 1972. In August 2014, the Veteran testified at a Travel Board hearing before the undersigned. The transcript is of record. This appeal initially came before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a July 2009 rating decision of the VA Regional Office (RO) in New York, New York that denied service connection for a lower back disorder. In January 2016 the Board remanded this matter for additional development. This appeal was processed using the Legacy Content Manager Documents and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. FINDING OF FACT The Veteran's lower back disability is not shown to be related to active duty service or to any occurrence or event therein, nor was arthritis shown within one year following separation from service. The pre-service back disorder was not made worse by service. CONCLUSION OF LAW The Veteran's acquired lower back disability was not incurred in or aggravated by active service, arthritis may not be presumed to have been incurred therein, and a pre-service back disorder was not clearly and unmistakably aggravated by service. 38 U.S.C.A. §§1101, 1110, 1111, 1112, 1113, 1153 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.353 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2017). A standard July 2009 letter satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(c) (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Veteran's service treatment records have been obtained and the Veteran has received treatment at VA health care facilities. The Veteran directly submitted releases for VA to obtain any private treatment records. The VA records have been obtained. The Veteran was afforded a VA examination connected with the claim most recently in May 2016 which includes an opinion as to the etiology of any current lower back pain and its relationship to his period of service. As noted above, the Board remanded this matter in June 2016. Specifically, the Board directed that a new VA examination and supplemental statement of the case (SSOC) be prepared and sent to the Veteran, if the claim remained denied. A review of the Veteran's claims file shows that he was provided an updated SSOC in June 2017. As the requested development has been completed, all remand requirements have been met to make a determination on the Veteran's mental disorder and the case may move forward without prejudice to the Veteran. Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION FOR LOWER BACK DISORDER Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). "To establish a right to compensation for a present disability, a 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"-the so-called "nexus requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The first element of Shedden is established for this claim because the record clearly demonstrates that the Veteran has a chronic lower back disorder. A recent May 2016 VA examination notes a diagnosis of degenerative disc disease at L5-S1with almost complete obliteration of the disc space and grade I spondylolisthesis at the L5 and L4. The dispositive question is whether the Veteran's chronic lower back disorder is related to disease or injury that is the result of service. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. The Veteran's essential contention here is that he currently suffers from a chronic lower back disability that is related to his period of active duty service. The Board acknowledges an August 1971 radiographic examination which reveals that the Veteran's has a narrowing in the posteriorly at the L5-S1 intervertebral space. The Board also acknowledges that the Veteran's STR's at his September 1, 1971 induction examination into the military show an admission medical waiver being issued to the Veteran for lower back pain with the examiner noting that the Veteran has had intermittent back pain for three and one-half years prior to the examination due to a high school football injury. The examiner also noted that the Veteran's back pain existed prior to service (EPTS). The examiner also issued the Veteran an excuse from duty and exercise for two weeks. On a September 16, 1971 STR's the examiner noted that the Veteran stated that his back pain was no better on a follow up examination. The Board also acknowledges that the Veteran's STR's repeatedly reported injuries to his lower back during his tour of active duty. December 1971 STR's reveal that the Veteran has had lower back pain for 4 years. August 1971 STR's reveal that the veteran has intermittent lower back pain for years. June 1972 STR's for a medical discharge reveal that the Veteran suffered from a chronic lumbosacral strain existing prior to service. The examiner noted that the Veteran has unremitting low back pain with sciatica which began at age fifteen from a football injury. The examiner also noted that the EPTS and noted that the Veteran's prior condition was not aggravated by his service. Furthermore, on the Veterans February 1972 discharge records reveal that the Veteran was not entitled to receive disability severance pay. During the Veteran's August 2014 hearing, the Veteran testified that he had injured his back while playing football. The Veteran also expressed that although he had temporary back pain after his back injury, but the pain went away and he did not have any pain in his back for approximately three to four years prior to beginning basic training. The Veteran testified to missing physical training exercises during basic training due to his chronic back pain and that he was prescribed pain killers by the military medics until his discharge. Lastly the Veteran testified that post-service he didn't experience any intense back pain until 1998 when he injured his back lifting a heavy piece of equipment at work. On a May 2009 VA examination, the examiner noted that an x-ray of the lumbar spine revealed advanced intravertebral disk space narrowing with associated degenerative changes at L5-S1 and possible encroachment posteriorly on the intervertebral foramina with hypertrophic bone. Regarding the etiology of the Veteran's lower back disability the examiner noted that the Veteran had the condition prior to enlisting in the service and that that the Veteran stated during the examination that he did not have any trouble with his back until he injured it lifting a heavy piece of equipment in 1998. The examiner received workers compensation his back injury. On a July 2012 VA examination, the VA examiner noted that the Veteran suffered from advanced degenerative disc disease seen at the L5-S1 level with almost complete obliteration of the disc space. The examiner noted that there appears be grade 1 anterior spondylolisthesis at L4-L5. The examiner opined that it was less likely than not incurred in or caused by the claimed in-service injury event or illness. The examiner also noted that Veteran's back condition clearly and unmistakably pre-existed his military service and clearly less likely as not that the veteran s back condition permanently exacerbated by service. The examiner reasoned that the Veteran had a post service workers compensation back injury from lifting a piece of heavy equipment. The examiner noted that the Veteran worked as an auto and truck mechanic and foreman for twenty-five to thirty years following medical discharge from the service and the etiology of his lower back disability came from his post-service work. On a June 2016 VA examination, the examiner noted that the Veteran has an advanced degenerative disc disease seen at L5-S1 level with almost complete obliteration of the disc space. The examiner also noted that there appears to be a grade I spondylolisthesis of L5- L4. The examiner also noted that while the patients back pain persisted during his service, it was not beyond the natural progression during service. Furthermore, the examiner opined that the role the 1998 post-service; work related, back injury connects to the current nature and etiology of the Veteran's lower back disability. The examiner opined that the proximate cause of the Veteran's current lower back disability is more likely related to his work related workers compensation injury of 1998 than anything that happened during his service. It was determined that there clearly and unmistakably no increase in the underlying condition. The Board finds that, the preponderance of the evidence is against finding that the Veteran's lower back disability is service connected. No evidence of the record from the Veteran's STR's to the Veterans VA and private treatment records demonstrate that the Veteran's current lower back disability is in any way service connected. The opinions of record to the Veteran's claim provided thorough and persuasive rationales and the preponderance of the most probative evidence weighs against the claims. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a lower back disability is denied ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs