09-00 403

Citation Nr: 1045629 Decision Date: 12/06/10 Archive Date: 12/14/10 DOCKET NO. 09-00 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a back disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from March 1997 to March 2001. This matter arises before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In November 2009, the Veteran testified at a Travel Board hearing in front of the undersigned Veterans Law Judge. The transcript of the hearing has been reviewed and is associated with the claims file. FINDING OF FACT The competent evidence of record does not show that the Veteran's back disability was incurred in or is related to his period active military service. CONCLUSION OF LAW The Veteran's back disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 , 5103, 5103A (West 2002); C.F.R. §§ 3.159, 3.303, (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Previous Board Remand In January 2010, the Board remanded the case to the RO via the Appeals Management Center (AMC) for further development and readjudication of the Veteran's claim. Specifically, the Board ordered the AMC to schedule the Veteran for a VA examination in order to determine the nature and etiology of his back disability. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). When remand orders are not complied with, the Board must ensure compliance. However, only substantial compliance, not strict compliance, is necessary. D'Aries v. Peake, 22 Vet. App. 97 (2008). VA afforded the Veteran with an adequate medical examination in February 2010. Based on the foregoing, the Board finds that the AMC substantially complied with the January 2010 remand. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 ( West 2002 ); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103 (a) (West 2002); 38 C.F.R. § 3.159 (b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. The Board notes that the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159 (b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); but see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the claimant of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In July 2008 and January 2010 correspondence, the RO and AMC advised the Veteran of what the evidence must show to establish entitlement to service connection for his claimed disorder and described the types of evidence that the Veteran should submit in support of his claim. The RO and AMC also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The VCAA notice letters also addressed the elements of degree of disability and effective date. The Board further notes that the Veteran was provided with a copy of the September 2008 rating decision, the November 2008 statement of the case (SOC), the Board's January 2010 remand, and the October 2010 supplemental statement of the case (SSOC), which cumulatively included a discussion of the facts of the claim, notification of the basis of the decision, and a summary of the evidence considered to reach the decision. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187 . To fulfill its statutory duty to assist, the RO/AMC afforded the Veteran with a compensation and pension examination in February 2010 and associated the Veteran's service treatment records (STRs) and hearing transcript. At his hearing, the Veteran told the undersigned Veterans Law Judge that he had no medical treatment related to his back since his discharge. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case for the Veteran's back disability was more than adequate, as it was predicated on a full reading of the available medical records in the Veteran's claims file. The examination included the Veteran's subjective complaints about his disability and the objective findings needed to rate the disability. The Veteran has not made the RO, the AMC, or the Board aware of any other evidence relevant to this appeal that he or the VA needs to obtain. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Accordingly, the Board will proceed with appellate review. Legal Criteria Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 , 1131 (West 2002); 38 C.F.R. § 3.303 (a) (2010). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303 (b) (2010). 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) (2010). Generally, where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). However, lay persons can provide an eye-witness account of a veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Also, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Analysis The Veteran contends that he hurt his back in service while moving mattresses in preparation of a Special Olympics event at Keesler Air Force Base. According to the Veteran, he felt a strain in his left lower back while moving mattresses into a dormitory. At the outset, the Board notes that the record contains evidence of a back injury in service. Specifically, when the Veteran was stationed at Keesler Air Force Base in August 1997, he complained of mid back pain for about three days. The Veteran told the doctor that he had no specific trauma and that he had been playing basketball and football, although he was not injured playing either. The Veteran's pain was over his left shoulder blade toward his spine. An examination revealed that he had no palpable abnormality, and the doctor advised the Veteran to follow up if his back failed to improve or worsened. The Veteran never followed up with the flight medicine clinic regarding a back disability. Instead, shortly before his discharge, he filled out a report of medical assessment dated February 2001. In that assessment, the Veteran claimed that his overall health was better since his last examination and that he was not taking any medications, had no conditions that limited his ability to work in his primary military specialty or required geographic or assignment limitations, had no questions concerning his health, and did not intend to seek VA disability benefits. On the back of the form, the examining physician wrote, "No complaints or conditions that need addressing." Taken together, the Veteran's failure to seek follow up treatment after his August 1997 complaints and his February 2001 discharge medical assessment indicate that his back problem had resolved in service and was not a chronic disability. The Veteran was subsequently discharged from military service in March 2001. He testified in November 2009 that he did not receive any treatment for his claimed back disability after his discharge. Nevertheless, VA afforded the Veteran with a compensation and pension examination in February 2010. The examiner reviewed the Veteran's service treatment records, including his August 1997 complaints of back pain, and concluded that "the problem here appeared to be in the thoracic spine." At the examination, the Veteran complained of fairly constant pain in the lower back that he localized to the left lumbosacral paravertebral region. The pain did not radiate and was about a three on a scale of one to 10. After examining the Veteran, the examiner diagnosed him with a chronic lumbosacral strain. However, the examiner stated that the Veteran was seen on one occasion in 1997 for pain in his thoracic or upper back and that his active duty medical records were absent of any reference to lower back problems. Therefore, since the Veteran's complaints were limited to pain in his lumbosacral region and not the thoracic spine region, the examiner held a "strong opinion" that the Veteran's current lumbosacral complaints of pain were totally unrelated to the episode of thoracic pain that occurred in 1997. The Veteran has consistently complained of lower back pain in various statements throughout the appeal period. Additionally, the record does not contain a competent medical opinion linking his current low back pain to his mid back pain in 1997. Thus, in light of the foregoing, the Board finds the preponderance of the evidence is against the Veteran's claim. Therefore, service connection for a back disability is not warranted, and the Veteran's appeal is denied. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107 (b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a back disability is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs