Citation Nr: 1736669	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-04 777	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


Entitlement to service connection for an acquired low back disability.


Appellant represented by:	Disabled American Veterans


The Veteran


B. Bodi, Associate Counsel


The Veteran served on active duty from January 1976 to January 1979.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in May 2016. A transcript of the hearing is associated with the electronic claims files.

The RO last denied service connection for scoliosis in August 1979.  The Veteran was notified of the decision, but did not submit a notice of disagreement or new and material evidence within the applicable one year appellate period.  Therefore, the August 1979 decision became final. 38 U.S.C.A. §§ 4004, 4005 (1979); 38 C.F.R. §§ 19.118, 19.153 (1979).  In July 2006, the Veteran filed a new claim for a "back condition," which was taken as a claim to reopen the previously denied claim for service connection for scoliosis.  In September 2016, the Board denied the prior scoliosis claim.  


1.  Acquired low back pathology was not manifest during service and arthritis was not manifest within one year of separation.

2.  Acquired low back disability is not attributable to service.


Acquired low back pathology was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309.


I.  Veterans Claims Assistance Act of 2000 (VCAA) 

A.  Duty to Notify

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). 

VA's duty to notify was satisfied by an August 2006 letter.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016).  

B.  Duty to Assist

The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence.  The Veteran's service treatment records (STRs), VA treatment records, and evidence submitted by the Veteran has been obtained.  The Veteran has also been provided with VA examination in December 2016.

The September 2016 remand required the RO to take appropriate steps to obtain a VA examination determine the nature and etiology of the acquired low back disability.  In substantial compliance with the Board remand, a December 2016 VA examination and addendum medical opinion was obtained.  The directives having been substantially complied with, the matter again is before the Board.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998)

Finally, neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  The Board will therefore proceed to the merits of the appeal.

II.  Service Connection

To establish service connection a Veteran must generally show: "(1) the existence of a present disability; (2) 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).

Service connection may also be established for arthritis manifesting to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a).  

For the showing of 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 disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R.  § 3.303 (b).  Arthritis is a chronic disease.

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C.A. § 1154 (a).  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, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements.  Id.  Further, a negative inference may be drawn from the absence of complaints for an extended period.  See Maxson v. West, 12 Vet. App. 453, 459   (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

III.  History

The Veteran reported that served on active duty and first noticed manifestations of his back disability while in formation.  He had been working picking up heavy metal radios for about a year and a half.  They were heavier than old typewriters.  The Veteran testified at a May 2016 hearing that he was in formation after this time and passed out.  He woke up in the hospital.  He was told that he had scoliosis. 

The Veteran reports that starting in July 1977, he was put on a 90 day profile due to his lower back condition.  He was then put on another profile for another 90 days.  For this job he had to drive around his first sergeant.  He had to get up and down from his jeep.   It was about two and a half feet up.  It would put pressure on his muscles doing this.  He had muscle spasms.  Eventually he was assigned to a basement doing stencil work.  The Veteran testified that he believes those radios, running, and jogging caused his lower back disability, as well as the aggravation of the muscles in his back.

The Veteran's January 1976 entrance examination indicates scoliosis of the D spine.  His January 1979 examination indicates scoliosis of the T spine.  His January 1979 clinical evaluation shows the spine and other musculoskeletal as normal.  Another examination from May 1979 which showed the S shaped scoliosis of the thoracic and lumbar spine.  It showed disc spaces were reasonably well maintained, with no additional significant abnormities. The impression was scoliosis and no additional significant abnormities were noted for that examination.

The Veteran was afforded a May 1979 VA examination of his back.  The Veteran reported injury of his back in basic training in 1976.  He reported that he went to see a doctor with back trouble in 1977.  The Veteran complained of pains in the low part of the back.  He was on no medication.  According to the Veteran, the last time he was treated for a back condition was in 1979.  He was separated from service in January of 1979.  

A November 2006 treatment record indicates the Veteran reported complaining of lower back pain that he had experienced for the past seven to eight years.

A March 2007 treatment record notes likely DJD which needed to be confirmed by film.  An April 2007 treatment record notes the Veteran reported pain in the lower back at an eight out of ten.  His TENS UNIT relieved pain to a reported level of a four out of ten.  He also reported lower back pain in July 2007.  Plain film X-ray confirmed he had DJD. 

A March 2008 treatment record indicates that the Veteran points to the right side of his lower back.  He reported that it is hard for him to function due to the pain.  A May 2008 treatment record shows chronic, constant low back pain.  He came in early May 2008 in an ambulance in pain needing something stronger for his back.  A November 2008 primary care follow up visit notes lower back pain.  A July 2008 treatment record notes moderately advanced lower lumbar scoliosis with associated degenerative changes in the inferior lumbar spine.  It cites the 2007 X-ray.  He also reported back pain in April 2009.

Social Security Administration (SSA) records indicate the Veteran has a reported history of back pain and problems.  He has trouble standing and walking.  He can only stand 20 minutes, walk one block, and sit for 20 minutes.

The Veteran reported that he was told while being treated at the VA that X-rays of his back indicate it is not getting better.  It is getting worse.  He also testified in May 2016 that he believes his back is getting worse.  He has to use a walker.  He can only walk so far and sit down.  He cannot get out of the car.  He reported that he basically cannot lift anything due to his back disability.  He had some sort of operation and was told he had a disease.  He has been receiving injections in his back that help but do not let him sleep.  

The Veteran was afforded a VA examination in December 2016.  The VA examiner opined that the Veteran's acquired low back disability is less likely than not incurred in or caused by the claimed in-service injury, event or illness.  The examiner provided the rationale for her opinion given based on a history of present illness and the review of the Veteran's service treatment records as well as the post-service treatment records.  After a review of the evidence of record, the examiner noted that the Veteran's current low back pain which has changed in character and become more persistent in the last 10 years, which most likely due to development of degenerative arthritis related to long standing scoliosis.   She opined that degenerative arthritis was not present during military service, and paravertebral strain during service is attributable to preexisting scoliosis.

IV.  Analysis

The Veteran has consistently reported that he has suffered from lower back pain since service.  See, e.g., Board hearing (May 2016).  Post service VA treatment records show current DJD and a history of lower back pain and muscle spasms.  

The Veteran is competent to relate what he has been told by a professional.  He is also competent to report that he was diagnosed with scoliosis and DJD.  

The Veteran is also competent to report his symptoms and observations of lower back pain.  He reports a history of this, including from his time in service.  He also reports a history of heavy lifting and getting down from a high jeep in service, resulting in muscle spasms.  He reported in 2006 that his low back pain had been going on for several years.  The Board finds these reports credible.  

Here, the Veteran reported that he has had back pain since service.  He is competent and credible.  However, scoliosis was previously denied.  The issue before the Board is the acquired pathology.  Although he complained of pain during service, arthritis was not noted, manifest, or diagnosed during service or within one year of separation.  Rather, a May 1975 evaluation disclosed that the disc spaces were reasonably well maintained and there were no other significant abnormalities.  Furthermore, he did not have characteristic manifestations sufficient to identify arthritis during that time.  In addition, chronic acquired pathology was not identified until more than a decade after service and there is a medical opinion establishing that arthritis is unrelated to service.  

The most probative evidence establishes a remote onset of acquired pathology and the Veteran's own opinion pales in credibility and probative value (regarding the onset of arthritis) when compared with the objective evidence.  Here, despite in-service complaints of pain, the evidence establishes that he did not have arthritis during service and there is no evidence of arthritis within one year of separation.  The preponderance of the evidence is against the claim and there is no doubt to be resolved.


Service connection for an acquired low back disability is denied.

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


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