Citation Nr: 1800706 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-09 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Catholic War Veterans of the U.S.A. ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel INTRODUCTION The Veteran periods of ACDUTRA from February 1966 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO). The RO in Oakland, California currently has jurisdiction of the file. This matter was previously before the Board and was remanded in September 2015 for further development and in order to afford the Veteran a VA examination. It has since been returned to the Board for adjudication. FINDINGS OF FACT The Veteran's low back disability was not a result of an injury incurred in or otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for a low back disability, diagnosed as lumbar stenosis and radiculopathy, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has met all of the duty to notify and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2015); 38 C.F.R. §§ 3.159, 3.326 (2017). For the service connection issue, review of the claims folder reveals compliance with the VCAA. 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters sent from the RO to the Veteran in September 2009 and October 2009. These letters satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his increased rating claim; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the VCAA letter advised the Veteran of the elements of a disability rating and an effective date. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Thus, the Veteran has received all required notices in this case for his service connection claims, such that there is no error in the content of VCAA notice. See also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With regard to the timing of VCAA notice, the Court and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued the September and October 2009 VCAA notices prior to the rating decision on appeal. Thus, there is no timing error. With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), VA treatment records and military personnel records. For his part, the Veteran has submitted post service treatment records and personal statements. The Veteran was provided VA a medical examinations in November 2015. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his service connection claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. There has been no allegation otherwise made by the Veteran in this regard. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) an 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303 (d), 3.309(d). That is to say, some diseases are chronic, per se, such as arthritis, and therefore will be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year after service. Even this presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303 (b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third elements discussed above. Savage, 10 Vet. App. at 495-496. Therefore, the Veteran's claims for entitlement to service connection will be evaluated under the general VA rules and regulations discussed above. The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Low Back The Veteran claims that his low back disorder is related to his active duty service. He has stated that he injured his back at MacDill Air Force Base and was released early from service due to his low back disability. The Veteran's military personnel records reflect that the Veteran was stationed at MacDill Air Force Base during his active duty service. However, his STRs do not show any treatment related to his low back. It is also shown in the record that the Veteran was granted early release. However, his DD-214 reflects that he was released early due to budgetary limitations, not a low back disability. Furthermore, the Veteran underwent examinations in November 1964, December 1965 and upon discharge in November 1969, all of which noted his spine and musculoskeletal system to be normal. There were no complaints related to his back. The first note of related to his back is contained in an April 1998 private treatment record, nearly 30 years after his separation from service. He was seeking treatment after falling at work injuring his tailbone. Notably, the April 1998 treatment record notes that the Veteran had "nothing like this previous[ly]." In March 2006 the Veteran was diagnosed with lumbar stenosis with radiculopathy. In November 2015 the Veteran was afforded a VA examination. The examiner confirmed the Veteran's diagnosis of lumbar stenosis with radiculopathy. Following an in-person examination and a review of the Veteran's claim file, the examiner concluded that the Veteran did not have a low back disability that was at least as likely as not, incurred in or caused by his military service. The examiner reasoned that there was no evidence to link the Veteran's lumbar stenosis with any injury, condition or event in service. Furthermore, he noted that there was no objective medical evidence for a back injury, condition or event in service, and there was no evidence of a connection for Veteran's current back condition to any injury, condition or event in service. While the Veteran may believe that his current lower back disorder is due to an injury in service, as a lay person, he has not been shown to have specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of chronic musculoskeletal disabilities requires medical testing and expertise to determine. Thus, his lay opinion regarding the etiology of his lower back condition is not competent medical evidence. To the extent that the Veteran has argued a continuity of symptomatology dating to his military service, the Board finds these reports are not credible. On the contrary, he did not report any back complaints during his service separation examination. Moreover, his initial treatment for spine related complaints following service in 1998 noted that he had not had any of his complained symptoms previously. This evidence weighs strongly against any current report of ongoing symptoms since service. The most probative and persuasive evidence is the November 2015 VA examination, which is against finding that the Veteran's current lower back disability is related to service. Accordingly, service connection for a lower back disability is denied. As the preponderance of the evidence is against the Veteran's lower back disability claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for low back disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs