Citation Nr: 0941626	
Decision Date: 11/02/09    Archive Date: 11/09/09

DOCKET NO.  04-41 815	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for low back disability, 
diagnosed as chronic lumbosacral strain with degenerative 
changes.


REPRESENTATION

Appellant represented by:	Katrina J. Eagle, Attorney 


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Rebecca Feinberg, Counsel
INTRODUCTION

The Veteran served on active duty from March 1980 to 
September 1985.

This appeal comes before the Board of Veterans' Appeals 
(Board) from July 2002 and August 2003 rating decisions  In 
July 2002, the RO, inter alia, denied the Veteran's claim for 
service connection for low back pain.  Following the 
submission of additional evidence, the RO confirmed and 
continued the denial of service connection for low back pain 
in August 2003.  The Veteran filed a Notice of Disagreement 
(NOD) with respect to this claim in September 2003.  A 
Statement of the Case (SOC) was issued in November 2004, and 
the Veteran filed a substantive appeal (via a VA Form 9, 
Appeal to the Board of Veterans' Appeals) in November 2004.

In June 2005, the Veteran testified during a hearing before 
the undersigned Veterans Law Judge at the RO; a transcript of 
that hearing is of record.

In January 2006, the undersigned granted the motion of the 
Veteran to advance this appeal on the Board's docket, 
pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 
38 C.F.R. § 20.900(c) (2006).

In a February 2006 decision, the Board , denied service 
connection for a low back disability, claimed as low back 
pain.  The Veteran appealed the February 2006 Board decision 
to the United States Court of Appeals for Veterans Claims 
(Court).  In August 2007, the Court granted the parties' 
joint motion for remand, vacating the Board's decision, and 
remanding the claim to the Board for further proceedings 
consistent with the joint motion.

In June 2008, the Board remanded the Veteran's claim to the 
RO (at that time, via the Appeals Management Center (AMC) in 
Washington, DC)),  for further action compliant with the 
joint motion, to include additional development of the 
evidence.  After completing the requested development, the RO 
continued the denial of the claim as reflected in a May 2009 
supplemental SOC (SSOC) and returned the appeal to the Board 
for further consideration.

Also in May 2009, the RO granted service connection for 
asthma, a matter for which the Veteran had previously 
perfected an appeal.  As this action represents a full grant 
of the benefit sought with respect to that issue, the only 
matter remaining on appeal is that set forth on the title 
page and addressed above.

As a final preliminary matter, the Board notes that, while 
the Veteran previously was represented by Disabled American 
Veterans and the Georgia Department of Veterans Services, in 
April 2006, the Veteran granted a power-of-attorney in favor 
of Katrina J. Eagle, a private attorney, with regard to the 
claim on appeal, who has since submitted written argument on 
his behalf.  The Board recognizes the change in 
representation.


FINDINGS OF FACT

1.  All notification and development action needed to fairly 
adjudicate the claim on appeal has been accomplished.

2.  While service treatment records reflect several notations 
as to in-service back complaints, to include following a 
motor vehicle accident, no chronic back disability was 
diagnosed in service.

3.  There is no credible evidence of continuity of back 
symptomtology since service; a low back disability, diagnosed 
as chronic lumbosacral strain with degenerative changes, was 
first diagnosed many years after discharge from service; and  
the only medical opinion to address the question of whether 
there exists a relationship between current low back 
disability and service weighs against the claim.




CONCLUSION OF LAW

The criteria for service connection for low back disability, 
diagnosed as chronic lumbosacral strain with degenerative 
changes, are not met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 
5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. 
§§ 3.102, 3.159, 3.303, 3.307, 3.309(a) (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 
(West 2002 & Supp. 2009)) includes enhanced duties to notify 
and assist claimants for VA benefits.  VA regulations 
implementing the VCAA were codified as amended at 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009).

Notice requirements under the VCAA essentially require VA to 
notify a claimant of any evidence that is necessary to 
substantiate the claim, as well as the evidence that VA will 
attempt to obtain and which evidence he is responsible for 
providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 
183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in 
Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a 
substantially complete application for benefits is received, 
proper VCAA notice must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim(s); (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) must ask the claimant to provide any evidence in her or 
his possession that pertains to the claim(s), in accordance 
with 38 C.F.R. § 3.159(b)(1).

The Board notes that, effective May 30, 2008, 38 C.F.R. § 
3.159 has been revised, in part.  See 73 Fed. Reg. 23,353-
23,356 (April 30, 2008).  Notably, the final rule removes the 
third sentence of 38 C.F.R. § 3.159(b)(1), which had stated 
that VA will request that a claimant provide any pertinent 
evidence in his or her possession.

VA's notice requirements apply to all five elements of a 
service connection claim: veteran status, existence of a 
disability, a connection between the Veteran's service and 
the disability, degree of disability, and effective date of 
the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006).

VCAA-compliant notice must be provided to a claimant before 
the initial unfavorable decision on a claim for VA benefits 
by the agency of original jurisdiction (in this case, the 
RO)..  Id.; Pelegrini, 18 Vet. App. at 112.  See also 
Disabled American Veterans v. Secretary of Veterans Affairs, 
327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice 
requirements may, nonetheless, be satisfied if any errors in 
the timing or content of such notice are not prejudicial to 
the claimant.  Id.

In this appeal, in a January 2002 pre-rating letter, the RO 
provided notice to the appellant regarding what information 
and evidence was needed to substantiate the claim for service 
connection, as well as what information and evidence must be 
submitted by the appellant, and what information and evidence 
would be obtained by VA.  The July 2002 RO rating decision 
reflects the initial adjudication of the claim after issuance 
of the January 2002 letter.  

Post-rating, an October 2008 letter provided the Veteran with 
information pertaining to the assignment of disability 
ratings and effective dates, as well as the type of evidence 
that impacts those determinations, consistent with 
Dingess/Hartman.  After issuance of the October 2008 letter, 
and opportunity for the Veteran to respond, the May 2009 SSOC 
reflects readjudication of the claim.  Hence, the Veteran is 
not shown to be prejudiced by the timing of the latter 
notice.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 
(2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 
(2006) (the issuance of a fully compliant VCAA notification 
followed by readjudication of the claim, such as in an SOC or 
SSOC, is sufficient to cure a timing defect).

The record also reflects that VA has made reasonable efforts 
to obtain or to assist in obtaining all relevant records 
pertinent to the matter  herein decided.  Pertinent medical 
evidence associated with the claims file consists of service 
and VA records and the report of the March 2009 VA 
examination.  Also of record and considered in connection 
with the appeal are various written statements provided by 
the Veteran and by his former representatives and current 
attorney on his behalf.  The Board also finds that no 
additional RO action to further develop the record  is 
warranted.

In summary, the duties imposed by the VCAA have been 
considered and satisfied.  Through various notices of the RO, 
the Veteran has been notified and made aware of the evidence 
needed to substantiate the claim, the avenues through which 
he might obtain such evidence, and the allocation of 
responsibilities between himself and VA in obtaining such 
evidence.  There is no additional notice that should be 
provided, nor is there any indication that there is 
additional existing evidence to obtain or development 
required to create any additional evidence to be considered 
in connection with the claim.  Consequently, any error in the 
sequence of events or content of the notice is not shown to 
prejudice the Veteran or to have any effect on the appeal.  
Any such error is deemed harmless and does not preclude 
appellate consideration of the matter on appeal, at this 
juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 
(2006) (rejecting the argument that the Board lacks authority 
to consider harmless error).  See also ATD Corp. v. Lydall, 
Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Analysis

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by service.  
38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Service connection 
may be granted for any disease diagnosed after discharge from 
service when all the evidence, including that pertinent to 
service, establishes that the disease was incurred in 
service.  38 C.F.R. § 3.303(d).

Service connection may be presumed, for certain chronic 
diseases, such as arthritis, which develop to a compensable 
degree (10 percent for arthritis) within a prescribed period 
after discharge from service (one year for arthritis), 
although there is no evidence of such disease during the 
period of service.  This presumption is rebuttable by 
probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 
1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 
(2009).  Also, while the disease need not be diagnosed within 
the presumptive period, it must be shown, by acceptable lay 
or medical evidence, that there were characteristic 
manifestations of the disease to the required degree.  38 
C.F.R. § 3.307(c).

Considering the pertinent evidence in light of the above-
noted legal authority, the Board finds that service 
connection for a low back disability is not warranted.

A September 1980 service treatment record reflects that  the 
Veteran complained of low back pain for two days.  He denied 
any injury.  The assessment was mild muscle spasm.

A January 1981 service record shows that the Veteran 
complained of back pain for one month.  He had full range of 
motion and no palpable tenderness.  The assessment was 
subjective back pain.

A July 1983 service treatment record reflects that  the 
Veteran complained of back pain for five days.  He reported 
trauma in the previous 72 hours.

January 1984 service treatment records indicate that the 
Veteran was driving a Jeep and was involved in a minor rear 
end collision.  He complained of lower left back pain.  He 
was ambulatory.  There was pain in the lumbar spine and 
palpable muscle spasm in the lower back.  A lumbar spine 
series was within normal limits.  The diagnosis was muscle 
strain.

In March 1994, the Veteran filed a  claim for VA benefits, 
but did not mention the lower back.

A June 1996 private treatment record shows the Veteran 
complained of back pain for two days.

A September 1996 private treatment record indicates the 
Veteran had left-sided low back pain.  It had begun one week 
ago with lifting boxes.  The lumbar spine was tender.

During a July 1997 RO hearing on other issues, he asserted 
that he that he fell off a forklift during service because of 
his hearing loss, and expressed his belief that this caused 
his back problems.

A March 2001 private treatment record shows that the Veteran 
complained of right lateral back pain for four days.  He had 
gone running without stretching.  The assessment was muscle 
soreness and strain.

A December 2001 private treatment record shows the Veteran 
complained of left-sided lower back pain that started two 
months prior.  The assessment was chronic low back strain.

April 2005 VA outpatient treatment records indicted  that  
the Veteran complained of intermittent back pain.  He denied 
an injury but  indicated that the pain  began when he was 
lifting weights several hours previously.   There was 
decreased range of motion and strength.  The assessment was 
lumbago.

June 2005 VA outpatient records show that the Veteran 
reported a history of a motor vehicle accident in 1983, while 
he was in service.  He now complained of back pain for three 
months.  On examination, the lumbosacral spine was normal.  
There was local tenderness in the lumbar spine.  He had full 
range of motion.  The assessment was chronic back pain.

During the  June 2005 Board hearing, the Veteran testified  
that he had been in  an accident between 1983 and 1985.  He 
asserted that he did not get proper medical care, and that he 
had had back pain for the last twenty years.  He indicated 
that, for many years, he thought there was something wrong 
with his kidneys, but that he did not get x-rays..  He also 
stated the he  first sought treatment in 1995, because he was 
unable to afford healthcare prior to that time, and because 
he thought that he had a problem with his kidneys, which he 
relayed to private doctors.

A May 2007 VA outpatient includes a notation  that the 
Veteran's physician indicated in a letter to the Veteran that 
the back x-ray showed arthritis.

In March 2009, the Veteran underwent VA examination.  His 
claims file was reviewed and noted.  The Veteran then 
reported that he had been involved in a motor vehicle 
accident in a jeep while in service.  He was placed on bed 
rest for two days.  Following that, he was unable to run and 
asked to be placed in the motor pool to work.  He reported 
that he continued to have pain in his low back, mostly on the 
left side.  He was able to finish his period of service.  He 
continued to have pain in the lower back.  The examiner noted 
that the Veteran now had constant low back pain in the left 
lower back with numbness in the buttock and foot, the onset 
of which he  dated  to 1983 or 1984, following the accident.  
Following examination, the impression was chronic lumbosacral 
strain.  

The examiner opined that it was not at least as likely as 
not, less than a 50/50 probability, that the condition of the 
spine was related to the Veteran's period of active duty.  
The examiner noted that the Veteran had been seen on several 
occasions for back pain in service, but did not note the 
alleged motor vehicle accident.  The examiner indicated  that 
episodes when the Veteran was seen for low back pain appeared 
to be related to muscle strain, and that there  was no 
ongoing report of recurrence of back pain or worsening.  
Following  review of a contemporaneous x-ray report 
reflecting an impression of mild multilevel degenerative 
changes,  the examiner did not change his prior opinion..

Considering the claim in light of the above-cited evidence 
and the governing legal authority,  the Board finds that 
service connection for a low back disability is not 
warranted.

While the Veteran's service records reflect several notations 
as to back pain, the Board emphasizes that no chronic back 
disability was diagnosed in service or for many years 
thereafter. While the Veteran was assessed with muscle strain 
following a motor vehicle accident, this condition appears to 
have resolved.  The Board also points out that pain, alone, 
without medical evidence of any underlying diagnosed or 
identifiable underlying malady or condition, does not 
constitute a diagnosis of actual back disability.  See 
Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).  

Indeed, the fist diagnosis of a chronic back disability was 
not until May 2007, more than twenty years after separation 
from service.  The Board points out that the passage of many 
years between discharge from active service and documentation 
of a claimed disability is a factor that weighs against any 
claim for service connection.  See Maxson v. West, 12 Vet. 
App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000).  
.Furthermore, there is no competent opinion of record 
supporting the Veteran's contention that his currently 
diagnosed chronic lumbosacral strain with degenerative 
changes is related to his motor vehicle accident or any other 
incident in service.  In fact, in the only competent opinion 
of record to address the question of etiology of current back 
disability,  the March 2009 VA examiner determined that the 
currently diagnosed low back disability is not likely related 
to  back pain in service.  As indicated, this opinion was 
based on both examination of the Veteran and review of the 
claims file.  Significantly. there is no contrary medical 
opinion of record, and neither the Veteran nor his attorney 
has identified or even alluded to the existence of any 
medical opinion that, in fact, supports the claim for service 
connection.

The Board notes that, in a June 2009 written statement, the 
Veteran's attorney contends that the March 2009 VA 
examination report is inadequate.  The Veteran's attorney 
argues that, because the examiner was unable to locate the 
record showing the Veteran's motor vehicle accident, the 
examination report is not adequate, and another examination 
should be ordered.  The Veteran's attorney notes that the 
Veteran was seen multiple times in service for low back pain 
and, therefore, whether he had a motor vehicle accident or 
not is immaterial.  Therefore, the Veteran's attorney 
contends, the VA examiner's report should address the 
relationship of the Veteran's chronic low back condition, 
given the multiple instances of in-service treatment for 
pain.

The Board agrees that there is evidence in the record that 
the Veteran was involved in a motor vehicle accident while in 
service in January 1984.  However, the Board also finds  that 
the fact that the VA examiner did not specifically mention 
the in-service accident (reflected in the service treatment 
records ) is not dispositive.   The examiner correctly 
indicated that the Veteran was seen on several occasions 
during service for low back pain which he opined appeared to 
be related to muscle strain.  Muscle strain was assessed 
following his accident in January 1984.  Therefore, it 
appears the examiner reviewed this record but did not notice 
the specific detail that it was following a motor vehicle 
accident.  Furthermore, while the Veteran's attorney seems to 
imply that the examiner gave no opinion regarding the 
multiple treatments for back pain in service, a review of the 
examination report shows that he did.  He specifically noted 
that, while there were complaints of back pain, there were no 
ongoing reports of recurrence or worsening.  

As such, the Board finds that the VA examiner adequately 
addressed the issue, and that his opinion constitutes the 
only probative opinion on the medical nexus question.  See 
Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) ("It is the 
responsibility of the BVA to assess the credibility and 
weight to be given the evidence") (citing Wood v. Derwinski, 
1 Vet. App. 190, 192-93 (1992)).  See also Guerrieri v. 
Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value 
of medical evidence is based on the physician's knowledge and 
skill in analyzing the data, and the medical conclusion the 
physician reaches; as is true of any evidence, the 
credibility and weight to be attached to medical opinions are 
within the province of the Board).  

The Board notes the Veteran's assertions as to continuity of 
back symptoms since service.  The Veteran is certainly 
competent to report his symptoms of pain and the history of 
his symptoms.  See. e.g., Washington v. Nicholson, 19 Vet. 
App. 362 (2005); Layno v. Brown, 6 Vet. App. 465, 470 (1994).  
Here, however, the Board finds the Veteran's statements 
attempting to show continuity of symptomatology are not 
credible and, thus, cannot serve to controvert the VA 
examiner's opinion, and provide a basis for a  finding of 
service connection for current low back disability.

While the Veteran now contends that his symptoms of low back 
pain have existed since his accident in service and have 
continued since that time, the Board finds it poignant  that 
when the Veteran filed his initial claim for VA benefits in 
March 1994-already some 9 years after his service 
discharge-he did not then reference his back.  The Board 
notes that silence here, when the Veteran is otherwise 
affirmatively speaking, is not supportive of the Veteran's  
current assertions of continuous back problems since service.  
Furthermore, the earliest post-service treatment record 
associated with the claims file is a June 1996 record showing 
the Veteran reported back pain.  At that time, he indicated 
that the pain had been present for two days.  Subsequent 
records dated in September 1996, July 1997, March and 
December 2001, and April and June 2005, similarly show the 
Veteran gave only short-term histories of back pain.  In July 
1997, the Veteran indicated that he fell off a forklift while 
in service, due to his audiological problems and believes 
this caused his back problems now.  This is contradictory to 
subsequent statements that he instead injured his back in a 
motor vehicle accident.

The Board further points out that the Veteran did not contend 
that his symptoms of low back pain symptoms had continued 
since service until his 2005 Board hearing, in conjunction 
with his claim for benefits.  This contradicts all previous 
statements to treating providers, at which times he gave very 
short histories for his back pain, the longest being three 
months prior.  The Board finds that a Veteran's 
contemporaneous statements to physician or other medical 
professional, made in connection with treatment, more 
credible than those made in furtherance of a claim for 
benefits.

Accordingly,  the Board finds that the Veteran's more recent 
assertions that his back pain has existed since service are 
not supported by or are simply inconsistent with the 
documented evidence of record, and are not credible.

The Board likewise deems not persuasive the any direct 
assertions of the Veteran or his attorney that his current 
low back disability is related to service.  As indicated, the 
Veteran, as a layperson, is competent to report on matters 
observed or within his personal knowledge.  See Layno, , 6 
Vet. App. at  470.  However, to whatever extent the Veteran 
attempts to support the claim on the basis of his (and his 
attorney's) assertions, alone, the Board points out that 
matters of diagnosis and etiology are within the province of  
trained medical professionals.  See Jones v. Brown, 7 Vet. 
App. 134, 137-138 (1994).  As neither the Veteran nor his 
attorney is shown to have appropriate medical training and 
expertise, neither can competently render a probative (i.e., 
persuasive) opinion on the medical matter of the etiology of 
the Veteran's current back disability. See Bostain v. West, 
11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 
Vet. App. 492 (1992).  See also Routen v. Brown, 10 Vet. App. 
183, 186 (1997) ("a layperson is generally not capable of 
opining on matters requiring medical knowledge").  Hence, 
the lay assertions in this regard have no probative value.

For all the foregoing reasons, the Board concludes that the 
claim for service connection for a low back disability, 
diagnosed as chronic lumbosacral strain with degenerative 
changes, must be denied.  In reaching this conclusion,  the 
Board has considered the applicability of the benefit-of-the-
doubt doctrine.  However, as the preponderance of the 
evidence is against the claim, that doctrine is not 
applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; 
Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990).


ORDER

Service connection for low back disability, diagnosed as 
chronic lumbosacral strain with degenerative changes, is 
denied.




____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs



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