Citation Nr: 0705003 Decision Date: 02/21/07 Archive Date: 02/27/07 DOCKET NO. 99-07 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Buck, Associate Counsel INTRODUCTION The veteran served on active duty from March 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied entitlement to the benefit currently sought on appeal. FINDING OF FACT The veteran's back disorder was first manifested many years after service and is not related to his service. CONCLUSION OF LAW A back disorder was not incurred or aggravated in the veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in December 2001 and October 2004, the agency of original jurisdiction (AOJ) satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2006). Specifically, the AOJ notified the veteran of information and evidence necessary to substantiate the claim for service connection; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claim. Although these notices were delivered after the initial denial of the claim, the AOJ subsequently readjudicated the claim based on all the evidence in August 2002 and September 2006, without taint from prior adjudications. Thus, the veteran was not precluded from participating effectively in the processing of his claim and the late notice did not affect the essential fairness of the decision. Because service connection is denied, any question as to the appropriate disability rating or effective date is moot, and there can be no failure to notify prejudice to the veteran. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2006). Service medical records have been associated with the claims file. The veteran has been medically evaluated in conjunction with his claim and a medical opinion has been sought. All identified and available treatment records have been secured. It is noted that in correspondence dated in December 2004, the veteran indicated that he received relevant treatment at the Brooklyn, New York VA Medical Center (VAMC) in 1972 or 1973. This is in contrast to his testimony before a Decision Review Officer in May 1999, at which time he reported receiving treatment at that facility beginning in 1996, and self-treating his pain prior to that. Regardless, efforts have been made to retrieve any records from that facility for this veteran. Specifically, records were searched from March 1971 forward. While clinical records dated from August to November 1996 are of record, the VAMC has issued a negative reply for records dated prior to that time. The duty to assist has been met. Service Connection The veteran seeks service connection for a low back disorder, which he contends initially manifested in service after an accidental fall from a truck during field maneuvers. In order to establish service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2006); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). The medical evidence of record demonstrates a current diagnosis of moderate degenerative disc disease (DDD) of the lumbosacral spine, with mechanical low back pain. See VA examination and x-ray report, dated in July 2002. Service medical records confirm that in April 1970, the veteran reported to sick call, presenting with complaints of back pain due to trauma two weeks prior. In an orthopedic service consult in May 1970, he reported that the medication had not been relieving his pain. Examination revealed functional low back pain. X-ray of the lumbosacral spine was normal, showing no significant abnormalities. The veteran's February 1971 separation examination recorded the veteran's spine to be normal. Because the veteran has a current disability and experienced an event in service, the question becomes whether there is medical evidence of a nexus between the two. In this case, a VA physician in July 2002 examined the veteran and reviewed his claims file. The physician specifically referred to the veteran's in-service treatment for low back pain and his receipt of a physical profile, temporarily limiting his duty at that time. The physician also referred to the veteran's post-service treatment records, which were silent prior to the late 1990s for treatment of back pain. Based on this review, the examiner opined that while the veteran has degenerative changes of the spine, it would be very difficult to relate this to the incident in service which was apparently a slight fall, based on the medical evidence at the time of the injury. The examiner also pointed to the lack of actual treatment for a back disorder prior to 1998, even though the veteran now says that he has been in constant pain for the same since the incident. In sum, the physician found no nexus between the veteran's in-service fall and his current back pain. This opinion is found to be competent and credible, as it is based on all of the pertinent facts of the case, to include the in-service injury and the post-service treatment. It being the only competent opinion of record on the issue of nexus, and absent evidence to the contrary, the Board is not in a position to further question it. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Although the veteran's own statements and the lay statements he presented during the course of the appeal are relevant as to his experiencing back pain since service, they are not sufficient to establish a medical nexus to service. The evidence does not show that the veteran and the lay persons who offered statements possess the specialized medical training and knowledge that would establish their competence to render etiological opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Such opinions must come from a qualified medical professional. In this case, a physician recognized that the veteran's testimony was that his pain had been continuous since service. He then, however, provided a medical basis for not finding a connection. The preponderance of the evidence is found to be against the veteran's claim; therefore, the benefit of the doubt provision does not apply. Service connection is not warranted for the veteran's current back disorder. ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ J. E. Day Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs