Citation Nr: 0704782 Decision Date: 02/20/07 Archive Date: 02/27/07 DOCKET NO. 04-26 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for paravertebral muscle spasms of the lumbar spine, claimed as a low back condition. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD A. W. Harley, Associate Counsel INTRODUCTION The veteran had active service from October 1991 through March 1996, and October 1999 through April 2002, with additional reserve service. 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 San Juan, the Commonwealth of Puerto Rico. FINDINGS OF FACT There is no competent medical evidence showing a nexus between the veteran's currently diagnosed lumbosacral strain described as myositis and facet hypertrophic changes, and his in-service paravertebral muscle spasm. CONCLUSION OF LAW The criteria for service connection for paravertebral muscle spasms of the lumbar spine, claimed as a low back condition, are not met. 38 U.S.C.A. § 1110 (West 2005); 38 C.F.R. § 3.303(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking service connection for a paravertebral muscle spasms of the lumbar spine. In order for this claim to be granted, the record must contain (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. In other words, entitlement to service connection requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). See also Pond v. West, 12 Vet. App. 341, 346 (1999). The evidence in this case establishes the first element of service connection. In April 2006, the veteran was afforded a VA examination at which time he was diagnosed with lumbosacral strain - myositis, and facet hypertrophic changes, as seen in MRI. As such, the veteran has a current low back disability. There is also evidence in the veteran's service medical records to suggest that he had an in-service injury involving the low back. While the veteran's July 1991 entrance examination was negative as to any back disability, there is evidence that in December 1992 the veteran felt low back pain after lifting a heavy object. The treatment note shows diagnosis of a paravertebral muscle spasm. There is no further evidence in the service records of symptoms, complaints, or diagnoses of any low back disability. The March 2002 separation examination is negative as to any injury of the spine. Thus, the service medical records show one instance of an injury to the low back, satisfying the second element for service connection. While the evidence establishes that the veteran has a current back disability and had an incident in service involving his back, under 38 C.F.R. § 3.303 there still must be medical evidence of a nexus between the two. The veteran's outpatient treatment records do not establish a link between the veteran's current disability and his injury in service. In fact, there are no treatment records showing outpatient treatment for a low back disability since service. An October 2002 VA outpatient record for an unrelated ailment noted a past medical history of low back pain, but the remaining outpatient records are silent as to the back. The veteran was afforded a VA examination in September 2002, which established a current diagnosis of paravertebral muscle spasms by MRI, but provided no nexus opinion; thus, the Board ordered another VA examination. In April 2006, a VA examiner diagnosed lumbosacral strain - myositis, and facet hypertrophic changes, as seen in MRI. The examiner reviewed the veteran's claims folder and opined that the current diagnoses "are less likely than not chronic in nature and less likely than not related to military service activities." The examiner explained his opinion by noting that there is no evidence outside the 1992 incident, described above, that the veteran had any lumbar spine disability, including subsequent to service. The examiner also remarked that even though MRI shows facet hypertrophic changes, "there is no evidence in electronic records, claims folder or service medical records that [the veteran] had complaints of his lumbosacral condition at all." Outside of this April 2006 opinion, there is no evidence regarding the issue of a medical nexus other than the veteran's assertions. The veteran's statements, however, are not competent evidence of a nexus. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time, lay testimony is not competent to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Competent medical evidence of a connection between the veteran's current back disability and an event of service is required for service connection. There is no such evidence in this case. As such, the preponderance of the evidence is against the veteran's claim and service connection is not warranted. Duties to Notify and Assist VA fulfilled its duties to notify and assist the veteran in the development of his claim for entitlement to service connection for a lumbar spine disability. Sufficient evidence is available to reach a decision and the veteran is not prejudiced by appellate review at this time. VA sent the veteran letters in September 2002 and December 2005 informing him of the evidence necessary to establish entitlement to service connection. The veteran was notified of what was necessary to establish his claim, what evidence he was expected to provide, and what VA would obtain on his behalf. The December 2005 letter also asked the veteran to provide VA with any pertinent evidence he may have regarding his claim. Thus, these letters satisfied the requirements of 38 C.F.R. § 3.159(b)(1) (2006). In a November 2006 letter, the veteran was informed of the type of evidence necessary to establish an effective date and a disability rating, as is required under Dingess v. Nicholson, 19 Vet. App. 473 (2006). Any defect with respect to the timing of the notice requirement was harmless error. The veteran was furnished content-complying notice and proper subsequent VA process, thus curing any error in the timing. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As to the notice provided regarding a potential effective date and disability rating, the Board notes that since the underlying issue is denied in this issue, the timing of the notice is moot. VA has met its duty to notify. VA also has a duty to assist the veteran in substantiating his claims under 38 C.F.R. § 3.159(c), (d) (2006). Here, the veteran's statements, his service medical records, and VA treatment records have been associated with the claims folder. The veteran has been afforded two VA examinations and reports from both are associated with the claims folder. The veteran has not notified VA of any additional available relevant records with regard to his claim. VA has done everything reasonably possible to assist the veteran. A remand for further development of his claim would serve no useful purpose. VA has satisfied its duties to notify and assist the veteran and further development is not warranted. ORDER Entitlement to service connection for paravertebral muscle spasms of the lumbar spine, claimed as a low back condition, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs