Citation Nr: 1754316 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 10-45 291 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife. ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to July 1983, and from September 1990 to June 1991. He had additional periods of service in the Army Reserve. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The claim is now in the jurisdiction of the RO in Montgomery, Alabama. In March 2013, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is included in the claims file. In April 2013, the Board remanded the matter for additional evidentiary development. In a January 2015 decision, the Board denied service connection for a low back disability. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In an April 2016 memorandum decision, the Court set aside the Board's January 2015 decision and remanded the matter for actions consistent with its decision. The Board again remanded the matter in a January 2017 decision. It has been returned to the Board for appellate review. The Board issued a decision on August 25, 2017, denying entitlement to service connection for a low back disability. Before the decision was dispatched, the Board received new evidence, including a statement in support of the claim, and additional service treatment records. In order to afford the Veteran due process, the August 25, 2017 decision must be vacated, and the new evidence considered, as discussed below. FINDINGS OF FACT 1. New evidence was introduced into the record on August 26, 2017, prior to the dispatch of an August 25, 2017 Board decision denying service connection for a low back disability. 2. The probative evidence of record does not demonstrate that the Veteran's current low back disability is related to active duty service, nor was a low back disability manifested to a compensable degree within a year of service, and symptoms have not been continuously present since service. CONCLUSIONS OF LAW 1. The August 25, 2017 Board decision denying service connection for a low back disability must be vacated. 38 U.S.C.A. § 7104 (a) (West 2014); 38 C.F.R. § 20.904 (2017). 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2016). ORDER TO VACATE The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law. 38 U.S.C.A. § 7104 (a) (West 2014); 38 C.F.R. § 20.904 (2017). On August 25, 2017, the Board issued a decision denying entitlement to service connection for a low back disability. On August 26, 2017, before that decision was dispatched, the Board received into evidence a statement in support of the claim, and additional medical evidence. In order to afford the Veteran due process, the Board hereby vacates the August 25, 2017 decision, and shall consider this new evidence. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and assist When VA receives 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. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). With respect to the duty to assist, the Veteran's VA and private treatment records, VA examination reports, and lay evidence are associated with the record, including the recently submitted evidence addressed above. The Board has considered all the evidence of record in reaching a decision in this case. The Veteran has also been afforded several VA examinations in connection with the instant appeal. The most recent, conducted in February 2017, contained clinical findings, discussed the pertinent history and features of the disability, and supplied a reasoned and thorough rationale for its findings. In particular, the Board notes that the examination was responsive to those issues raised in the Board's January 2017 remand pertaining to the deficiencies identified by the Court in a prior VA examination. Accordingly, the Board finds the February 2017 VA examination and opinion constitute probative medical evidence sufficient to adjudicate the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate). The Board finds that all relevant, identified, and available evidence has been obtained, and that VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, relevant, available evidence. The Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duties to notify or assist. There remains no question as to the substantial completeness of the Veteran's appeal for the issue of service connection for the Veteran's low back disability. Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. Law and Analysis Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309 (2015). Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). The Veteran asserts that his current low back disability resulted from a low back injury suffered during active duty service in 1982 while playing softball. The Veteran has a diagnosis of degenerative disc disease of the lumbar spine, which disability is considered a "chronic condition" for purposes of 38 C.F.R. § 3.309. Regarding an in-service event or injury, the Veteran asserts that he suffered a low back injury while playing softball in service in May 1982. This account is corroborated by treatment notes from that period, which document the Veteran's complaints of low back pain and reflect a diagnosis of a lumbar sprain. The record also reflects earlier in-service complaints of back pain; in April 1980, the Veteran related to providers that he had been suffering from lower back pain for a protracted period. He also complained of urinary symptoms. He was ultimately diagnosed with a urinary tract infection. Service treatment record do not explicitly relate his reported back pain to the infection, but there is no indication of an alternative explanation for the symptoms, nor any record of follow-up treatment for the lower back following resolution of the infection. Excepting these two instances, the Veteran's service treatment records are silent for back-related complaints. Further, the record demonstrates that the Veteran's lower back disorder did not manifest within a year of his June 1983 separation, or within a year of his June 1991 separation from his second period of active duty service. Records from a January 2000 National Guard examination characterize the Veteran's spine as normal, and note no history of back pain or injury. The Veteran neither sought nor received any lower back treatment until 2005, well over a decade after his second period of active duty service ended. Diagnostic imaging from 2005 showed disc bulges at the L4-5 and L5-S1 levels of the Veteran's lumbar spine. At that time, private treatment records reflect that the Veteran reported the onset of his back pain as approximately one year earlier. As noted above, he was subsequently diagnosed with degenerative arthritis and degenerative disc disease of the lumbar spine, conditions for which he has received treatment on a regular basis during the current appeal period. The Veteran has undergone two VA examinations in connection with this claim. The first was conducted in May 2010, the examiner opining that the Veteran's current low back symptoms were less likely than not etiologically related to service. However, that opinion was predicated in part on the examiner's assessment that the Veteran advanced but a single in-service complaint of low back pain, omitting mention of the April 1980 episode during which the Veteran complained of lower back pain along with urinary symptoms, and was diagnosed with a urinary tract infection. As the opinion's basis is not wholly factually accurate, the Board does not afford it great probative weight. A second VA examination was conducted in February 2017, pursuant to a Board remand. That examiner acknowledged both documented instances of in-service back-related complaints, but explained that the first, although not explicitly linked in the contemporaneous treatment records to the Veteran's diagnosed urinary tract infection, appear from context to be related thereto, given the lack of follow-up treatment or complaints following resolution of the infection. Further, the examiner explained that the second documented in-service episode, related to the Veteran's May 1982 softball injury, was characterized as a sprain, understood to be an acute injury, with no recurrence of pain or further treatment in service or immediately thereafter. Hence, the examiner concluded that condition had resolved entirely. The examiner also explained that acute injuries of the type reflected by the service treatment records are not understood to cause arthritis or degenerative disc disease, a conclusion further supported by the passage of several decades between the in-service injury and the first post-service complaints of back pain. As the February 2017 opinion is based on a comprehensive review of the record, is well-reasoned and thorough in its assertions, and is in general accord with the other objective evidence of record, the Board affords it great probative weight. The Board acknowledges the Veteran has advanced several additional arguments in support of his claim. First, he indicated in submissions made pursuant to his appeal of a prior Board decision to the Court, that he may have performed parachute jumps in service, and that these jumps may have contributed to his current low back symptoms. However, the Veteran's service personnel records do not demonstrate he performed any such jumps in service. These records show the Veteran received an "Air Assault" badge, but do not reflect any training or assignment involving parachuting. Moreover, the Veteran does not appear to have mentioned parachute jumps as a possible mechanism of injury to any treating provider. In sum, there is no objective evidence that the Veteran has ever used a parachute, and as such, no objective evidence that the current low back symptomatology relates to any injury suffered in such a jump. The Veteran has also argued that the Board should consider the Veteran's low back pain as a component of a chronic, undiagnosed illness arising from service on Southwest Asia during the Gulf War. See 38 U.S.C.A. § 1117 (West 2014); 38 C.F.R. § 3.317 (2016). Under 38 C.F.R. § 3.317, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness, provided that such disability (1) became manifest in service or on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 U.S.C.A. § 1117 (West 2014); 38 C.F.R. § 3.317 (2016). As the Veteran's low back pain has been attributed to degenerative disc disease and degenerative arthritis, his argument fails the second prong enumerated above. Finally, the Board acknowledges that the Veteran is competent to describe symptoms that he is able to perceive through the use of the senses, and has considered his lay statements of record and his testimony. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, as a layperson without medical training, the Veteran is not qualified to render a medical diagnosis or medical opinion concerning the etiology of a low back disability. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions.) As such, the Board affords greater probative weight to the above-detailed February 2017 VA examiner's opinion than to the lay statements of record with respect to the onset of a low back disability. Accordingly, the Board finds that service connection is not warranted in this case. The February 2017 VA examiner found that the Veteran's lumbar disability was less likely than not related to his active service, based on the nature of his in-service injuries, their apparent resolution, the nature of his current disability, and the long period between service and the onset of the Veteran's current symptoms. The Board also takes note of the January 2000 National Guard examination during which the Veteran failed to mention any back-related symptoms. Consequently, the weight of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (noting that when all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.) As the weight of the evidence is against the current claim, service connection for a lower back disability must be denied. 38 C.F.R. § 3.102 (2016). See also 38 U.S.C.A. § 5107(b) (West 2014). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs