Citation Nr: 0912172	
Decision Date: 04/01/09    Archive Date: 04/10/09

DOCKET NO.  04-17 350	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, 
Kentucky


THE ISSUE

Entitlement to service connection for lumbar spine 
disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. K. Buckley, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Army 
from December 1965 to December 1967.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 2002 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Louisville, Kentucky.

Procedural history

The Veteran's claim of entitlement to service connection for 
lumbar spine disability was received by the RO in June 2001.  
The November 2002 rating decision denied the Veteran's claim.  
The Veteran disagreed with the decision and initiated this 
appeal by filing a timely substantive appeal [VA Form 9] in 
May 2004.

In his May 2004 VA Form 9, the Veteran requested a personal 
hearing before a Veterans Law Judge.  However, the Veteran 
withdrew his request for a hearing in a written statement 
dated July 2007, pursuant to 38 C.F.R. § 20.704(e).  

In October 2008, the claim was remanded by the Board for 
further evidentiary development.  The VA Appeals Management 
Center (AMC) continued the previous denial in a January 2009 
supplemental statement of the case (SSOC).  
The Veteran's VA claims file has been returned to the Board 
for further appellate proceedings.

Issues not before the Board

The October 2008 Board decision denied the Veteran's claims 
of entitlement to service connection for disabilities of the 
cervical spine, bilateral knees, bilateral ankles, and left 
foot.  The record indicates that the Veteran filed a Notice 
of Appeal with the United States Court of Appeals for 
Veterans Claims (Court) as to those issues pursuant to 38 
U.S.C.A. § 7266.  Accordingly, said issues are not currently 
before the Board and will be discussed no further herein.

FINDING OF FACT

The competent medical evidence of record is in equipoise as 
to whether the Veteran's current lumbar spine disability is 
related to his military service. 


CONCLUSION OF LAW

The Veteran's currently diagnosed lumbar spine disability is 
a result of his active military service.  38 U.S.C.A. 
§§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 
(2008).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks entitlement to service connection for a 
lumbar spine disability, which he contends was aggravated by 
his active military service.

In the interest of clarity, the Board will discuss certain 
preliminary matters.  The issue on appeal will then be 
analyzed and a decision rendered.

Stegall considerations

As was alluded to in the Introduction, the Board remanded 
this case in October 2008.  In essence, the Board instructed 
the agency of original jurisdiction (AOJ) to obtain a medical 
nexus opinion.  The AOJ was then to readjudicate the claim. 

Two VA medical opinions were obtained in November 2008, which 
have each been associated with the Veteran's VA claims file.  
After this development was completed, the AMC readjudicated 
the claim in the January 2009 SSOC.

Thus, all of the Board's remand instructions have been 
complied with.  See Stegall v. West, 11 Vet. App. 268, 271 
(1998) [where the remand orders of the Board are not complied 
with, the Board errs as a matter of law when it fails to 
ensure compliance].

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA includes an enhanced duty on the part of VA to 
notify a claimant as to the information and evidence 
necessary to substantiate a claim for VA benefits.  The VCAA 
also redefines the obligations of VA with respect to its 
statutory duty to assist a claimant in the development of a 
claim.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002).  

The VCAA alters the legal landscape in three distinct ways:  
standard of review, notice, and duty to assist.  The Board 
will now address these concepts within the context of the 
circumstances presented in this case.  

Standard of review

After the evidence is assembled, it is the Board's 
responsibility to evaluate the entire record.  See 38 
U.S.C.A. § 7104(a) (West 2002).  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 veteran.  See 
38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2008).

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court 
stated that "a veteran need only demonstrate that there is 
an 'approximate balance of positive and negative evidence' in 
order to prevail."  To deny a claim on its merits, the 
preponderance of the evidence must be against the claim.  See 
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing 
Gilbert, 1 Vet. App. at 54.



Notice

The VCAA requires VA to notify the Veteran and the Veteran's 
representative, if any, of any information and any medical or 
lay evidence not previously provided to VA that is necessary 
to substantiate the claims.  As part of this notice, VA is to 
specifically inform the Veteran and the Veteran's 
representative, if any, of which portion, if any, of the 
evidence is to be provided by the Veteran and which part, if 
any, VA will attempt to obtain on behalf of the Veteran.  See 
38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. 
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an 
appellant describing evidence potentially helpful to the 
appellant, but not mentioning who is responsible for 
obtaining such evidence, did not meet the standard erected by 
the VCAA].  

After having carefully reviewed the record, the Board has 
concluded that the notice requirements of the VCAA have been 
satisfied with respect to the issue currently before the 
Board.  The Veteran was informed of the evidentiary 
requirements for service connection in a letter dated 
November 2001.  The VCAA letter indicated that in order for 
service connection to be granted there must be evidence of 
an injury in military service or a disease that began in or 
was made worse during military service, or that there was an 
event in service that caused an injury or disease; a current 
physical or mental disability shown by medical evidence; and 
a relationship between the disability and an injury, disease, 
or event in military service.  

Crucially, the RO informed the Veteran of VA's duty to assist 
him in the development of his claim in the November 2001 VCAA 
letter.  Specifically, the letter stated that VA would assist 
the Veteran in obtaining relevant records such as medical 
records, employment records, or records from other Federal 
agencies.  With respect to private treatment records, the 
letter informed the Veteran that VA would request such 
records, if the Veteran completed and returned the attached 
VA Form 21-4142, Authorization and Consent to Release 
Information.  

The November VCAA letter emphasized:  "[y]ou must give us 
enough information about these records so that we can request 
them from the person or agency who has them.  It's your 
responsibility to make sure these records are received by 
us."  

A May 2006 VCAA letter specifically requested:  "If you have 
any information or evidence that you have not previously told 
us about or given to us, and that information or evidence 
concerns the level of your disability or when it began, 
please tell us or give us that evidence now."  This complies 
with the "give us everything you've got" provision formerly 
contained in 38 C.F.R. § 3.159(b) in that it informed the 
Veteran that he could submit or identify evidence other than 
what was specifically requested by the RO.  [The Board 
observes that 38 C.F.R. § 3.159 was recently revised, 
effective as of May 30, 2008.  See 73 Fed. Reg. 23,353-23,356 
(April 30, 2008).  The final rule removes the third sentence 
of 38 C.F.R. 
§ 3.159(b)(1), which had stated that VA will request the 
claimant to provide any evidence in the claimant's possession 
that pertains to the claim.]  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court 
observed that a claim of entitlement to service connection 
consists of five elements:  (1) veteran status; (2) existence 
of a disability; (3) a connection between the veteran's 
service and the disability; (4) degree of disability; and (5) 
effective date.  Because a service connection claim is 
comprised of five elements, the Court further held that the 
notice requirements of section 5103(a) apply generally to all 
five elements of that claim.  Therefore, upon receipt of an 
application for a service connection claim, section 5103(a) 
and section 3.159(b) require VA to review the information and 
the evidence presented with the claim and to provide the 
claimant with notice of what information and evidence not 
previously provided, if any, will assist in substantiating or 
is necessary to substantiate the elements of the claim as 
reasonably contemplated by the application.  This includes 
notice that a disability rating and an effective date for the 
award of benefits will be assigned if service connection is 
awarded.

The Veteran was provided with notice of the Dingess decision 
in a letter dated March 2006, which detailed the evidence 
considered in determining a disability rating, including 
"nature and symptoms of the condition; severity and duration 
of the symptoms; and impact of the condition and symptoms on 
employment."  The Veteran was also advised in the letter as 
to examples of evidence that would be pertinent to a 
disability rating, such as on-going treatment records, recent 
Social Security determinations, and statements from employers 
as to job performance and time lost due to service-connected 
disabilities.  

With respect to effective date, the March 2006 letter 
instructed the Veteran that two factors were relevant in 
determining effective dates:  when the claim was received and 
when the evidence "shows a level of disability that supports 
a certain rating under the rating schedule."  The Veteran 
was also advised in the letter as to examples of evidence 
that would be pertinent to an effective date determination, 
such as information about continuous treatment or when 
treatment began, service medical records the Veteran may not 
have submitted, and reports of treatment while attending 
training in the Guard or Reserve. 

Accordingly, the Veteran received proper notice as to 
disability rating and effective date pursuant to the Court's 
Dingess determination.  There is no timing problem as to 
Dingess notice since, as indicated above, the Veteran's claim 
was readjudicated in the SSOCs dated October 2007 and January 
2009.  See Sanders v. Nicholson, 
487 F.3d 881 (Fed. Cir. 2007).

As there is no indication that there exists any evidence 
which could be obtained to affect the outcome of this case, 
no further VCAA notice is necessary.  See Dela Cruz v. 
Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not 
required where there is no reasonable possibility that 
additional development will aid the veteran].

Duty to assist

In general, the VCAA provides that VA shall make reasonable 
efforts to assist a claimant in obtaining evidence necessary 
to substantiate a claim for VA benefits, unless no reasonable 
possibility exists that such assistance would aid in 
substantiating the claim.  See 38 U.S.C.A. § 5103A (West 
2002); 38 C.F.R. § 3.159 (2008).

In the instant case, the Board finds that reasonable efforts 
have been made to assist the Veteran in obtaining evidence 
necessary to substantiate his claim and there is no 
reasonable possibility that further assistance would aid in 
substantiating it.  The evidence of record includes the 
Veteran's service treatment records, the Veteran's 
statements, as well as, VA and private medical treatment 
records.  Further, the Veteran was afforded a VA examination 
in August 2002; and VA medical opinions were obtained in 
November 2008 pursuant to the Board's remand instructions.  

In short, the Board has carefully considered the provisions 
of the VCAA in light of the record on appeal, and for the 
reasons expressed above, finds that the development of the 
issue has been consistent with said provisions.

The Board also observes that all due process concerns have 
been satisfied.  
See 38 C.F.R. § 3.103 (2008).  The Veteran has retained the 
services of a representative who has provided evidence and 
argument on the Veteran's behalf, most recently in March 
2009.  He declined the option of testifying at a personal 
hearing before a Veterans Law Judge.

Accordingly, the Board will proceed to a decision as to the 
issue on appeal.

Pertinent law and regulations

Service connection - in general

Service connection may be established for a disability 
resulting from a disease or injury incurred in or aggravated 
by active duty.  38 U.S.C.A. § 1110 
(West 2002).

Service connection may also be granted on a presumptive basis 
for certain chronic disabilities, including arthritis, when 
such are manifested to a compensable degree within the 
initial post-service year.  See 38 U.S.C.A. § 1101, 1112, 
1113 
(West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2008).

In order to establish service connection for a claimed 
disorder, there must be (1) medical evidence of a current 
disability; (2) medical or, in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a disease 
or injury; and (3) medical evidence of a nexus between the 
claimed in-service disease or injury and the current 
disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999).

Continuity of symptomatology

In order to show a chronic disease in service there is 
required a combination of manifestations sufficient to 
identify the disease entity, and sufficient observation to 
establish chronicity at the time, as distinguished from 
merely isolated findings or a diagnosis including the word 
"chronic."  When the fact of chronicity in service is not 
adequately supported, then a showing of continuity after 
discharge is required to support a claim.  There must be 
competent medical evidence unless the evidence relates to a 
condition as to which lay observation is competent to 
identify its existence.  See 38 C.F.R. § 3.303(b) (2008).

Presumption of soundness and aggravation

A veteran will be considered to have been in sound condition 
when examined, accepted, and enrolled for service, except as 
to defects, infirmities, or disorders noted at entrance into 
service, or where clear and unmistakable (obvious or 
manifest) evidence demonstrates that an injury or disease 
existed prior thereto.  
See 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 
3.304(b) (2008).

Clear and unmistakable evidence" is a more formidable 
evidentiary burden than the preponderance of the evidence 
standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) 
[noting that the "clear and convincing" burden of proof, 
while a higher standard than a preponderance of the evidence, 
is a lower burden to satisfy than that of "clear and 
unmistakable evidence"].  It is an "onerous" evidentiary 
standard, requiring that the preexistence of a condition be 
"undebatable."  See Cotant v. West, 17 Vet. App. 116, 131 
(2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).

Analysis

Initial matter - presumption of soundness

The Veteran asserts that his lumbar spine disability pre-
existed his December 1965 enlistment in military service.  
The Veteran further claims that his lumbar spine disability 
was aggravated by the demands of active military service.  
See, e.g., the Veteran's statement dated March 2004.  

A review of the record shows that the Veteran entered active 
military service in December 1965.  His July 1965 enlistment 
examination did not document any abnormalities pertaining to 
his lumbar spine.  The Board recognizes that a January 1967 
service treatment record noted the Veteran's report that he 
injured his back five years prior and had been treated by a 
chiropractor at that time.  However, the Veteran's self-
report of a previous back injury is insufficient evidence to 
overcome the presumption of soundness.  See 38 C.F.R. 
3.304(b) (2008); see also Gahman v. West, 13 Vet. App. 148, 
150 (1999) [recorded history provided by a lay witness does 
not constitute competent medical evidence sufficient to 
overcome the presumption of soundness, even when such is 
recorded by medical examiners]; Paulson v. Brown, 7 Vet. App. 
466, 470 (1995) [a layperson's account of what a physician 
may or may not have diagnosed is insufficient to support a 
conclusion that a disability preexisted service]; Crowe v. 
Brown, 7 Vet. App. 238 (1995) [supporting medical evidence is 
needed to establish the presence of a preexisting condition].  

In short, there is no "clear and unmistakable evidence" that 
the Veteran's lumbar spine disability existed prior to 
service.  See VAOPGCPREC 3-2003 (July 16, 2003); see also 
Wagner, supra.  The presumption of soundness upon enlistment 
has therefore not been rebutted.  See 38 U.S.C.A. § 1111 
(West 2002); see also Bagby v. Derwinski, 1 Vet. App. 225, 
227 (1991); 38 C.F.R. § 3.304(b) (2008).

Accordingly, the Board will apply the statutory presumption 
of soundness on enlistment.  

Discussion

As discussed above, in order for service connection to be 
granted, three elements must be satisfied:  (1) a current 
disability; (2) in-service incurrence of disease or injury; 
and (3) medical nexus.  See Hickson, supra.

With regard to Hickson element (1), the Veteran is currently 
diagnosed with degenerative joint disease of the lumbar 
spine.  See the VA examination report dated August 2002.  
Accordingly, Hickson element (1) is satisfied.

With respect to Hickson element (2), a service treatment 
record dated January 1967 documented the Veteran's complaint 
of "lumbar level" back pain.  He was prescribed a bed 
board, Roboxin, and Tylenol.  No specific back disability was 
diagnosed at that time.  Based on the in-service complaint of 
low back pain, the Board finds that Hickson element (2) is 
satisfied.  

Turning to crucial Hickson element (3), medical nexus, the 
record contains conflicting medical opinions which address 
the issue of medical nexus.  

The Board has the authority to "discount the weight and 
probity of evidence in the light of its own inherent 
characteristics and its relationship to other items of 
evidence."  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. 
Cir. 1997).  However, the Court has held that the Board may 
not reject medical opinions based on its own medical 
judgment.  See Obert v. Brown, 5 Vet. App. 30 (1993).

In a November 2008 opinion, a VA physician reviewed the 
Veteran's claims file and concluded that "the Veteran 
experienced increasing pain in [the] low back while in 
service, had to see medic at [an] aid station while in 
service related to [the] back.  The pain he has now is a 
continuation and progression of pain that occurred while in 
service.  Most likely low back pain was aggravated by 
military activities."  

In contrast, in another November 2008 opinion, a different VA 
physician reviewed the Veteran's VA claims file and 
concluded, "[g]iven the long interval between his discharge 
from military service and the current disability, it is much 
less likely than not that military service did not 
substantially contribute to patient's current back 
disability.  Some contribution is possible, but aging and 
other factors are likely to be much more significant."  

Both November 2008 VA medical opinions appear to have been 
based upon thorough review of the record and thoughtful 
analysis of the Veteran's entire history and current medical 
condition.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) 
[the probative value of a physician's statement is dependent, 
in part, upon the extent to which it reflects "clinical data 
or other rationale to support his opinion"].  
Accordingly, the Board finds that the evidence of record is 
in equipoise as to the matter of whether the Veteran's 
current lumbar spine disability is a result of his military 
service.  The benefit of the doubt rule is therefore for 
application.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. 
§ 3.102 (2008).  As such, Hickson element (3), and thereby 
all three elements, has been satisfied.  

In conclusion, for reasons and bases expressed above, the 
benefit sought on appeal is granted.


ORDER

Entitlement to service connection for lumbar spine disability 
is granted.



____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs



{'dataset': 'bva_opinions'}