Citation Nr: 0717761 Decision Date: 06/13/07 Archive Date: 06/26/07 DOCKET NO. 02-03 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to service connection for a back condition. 2. Entitlement to service connection for bone spurs of the cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Associate Counsel INTRODUCTION The veteran served on active duty from July 1973 to July 1976 and December 1976 to April 1978. The veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Montgomery, Alabama, that denied the benefits sought on appeal. In December 2003 the Board remanded the matter for additional development. That action having been completed, the claim has been returned to the Board and is now ready for appellate disposition FINDINGS OF FACT 1. The veteran's back condition was not manifested during service and is not otherwise shown to be causally or etiologically related to service 2. The veteran's bone spurs of the cervical spine were not manifested during service and are not otherwise shown to be causally or etiologically related to service CONCLUSIONS OF LAW 1. The criteria for service connection for a back condition have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304 (2006). 2. The criteria for service connection for bone spurs of the cervical spine have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks service connection for a back condition and bone spurs of the neck. In his November 2000 claim he contends his back was broken in service, and that this caused both his current back condition and the bone spurs in his neck. To establish service connection, 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 for a particular disability 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. The veteran's claims meet the first element of service connection. It appears he has received a number of diagnoses for his neck and back conditions, but the most recent is lumbar radiculopathy, degenerative disc disease of the lumbar spine, and degenerative disc disease of the cervical spine, according to an April 2003 report of Andre J. Fontana, M.D. The veteran's claims do not meet the second or third requirements of service connection. Service medical records contain no complaints of, treatment for, or documentation of any sort for a broken back, or a back or neck injury. The veteran's separation examination for his first separation from service in 1976 shows normal findings as to the neck and back. The veteran did not report recurrent back pain or other back or neck problems at that time. A VA examination conducted in October 1976 showed no pertinent findings related to the back or neck. Later in 1976 for the veteran's re-entrance into service, the veteran's back and neck again were found to be normal and the veteran did not report any back or neck trouble. In 1978, at the time of his second separation from service, no back or neck problems were found on examination and the veteran did not report any trouble, such as a broken back. For these reasons the second element of service connection is not met. The third element is also not met because there is no nexus opinion associated with the file. In a June 2001 VA examination an old fracture of the lumbosacral spine was noted from a 1999 MRI, but the examiner did not link this to his current conditions or complaints. In an August 2001 VA examination a different examiner took the veteran's reported history but again did not link it to his current conditions or complaints. Although the claims file was not available to either VA examiner, since the time of examinations a large volume of medical records have been received and a nexus opinion is found nowhere in this evidence. The veteran was advised in letters of August 2005, March 2005, and February 2004 of the need for a nexus opinion in order to substantiate his service connection claims. Considering this, and in the absence of any indication of a back or neck injury, or a broken back, in service medical records, the Board finds an additional VA examination is not warranted. Without evidence of an in-service event or injury that could be related to his current spine disabilities, the veteran's claims fail. Direct service connection is not warranted for a cervical or low back disorder. Alternatively, the nexus to a service injury or event may be satisfied by evidence that a chronic disease such as arthritis manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006). The first documented diagnosis of any disorder related to the lumbar or cervical spine was made many years after service. Because no diagnosis of arthritis of the cervical or lumbar spine was made within one year of the veteran's service separation, the presumption for service connection for chronic diseases does not apply. As the preponderance of the evidence is against the veteran's claims, the benefit of the doubt provision does not apply. A medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c) (4). In this case, while the record clearly reflects that the veteran has current diagnoses, there is absolutely no evidence beyond the veteran's own contentions that he suffered an event, injury or disease in service that resulted in his current back or neck conditions, nor is there any competent medical evidence that a currently diagnosed back or neck condition is in any way associated with an established event, injury or disease in service. In this circumstance, there is no duty on the part of VA to provide a medical examination, because as in Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003), the appellant has been advised of the need to submit competent medical evidence indicating that he has the disorders in question, and further substantiating evidence suggestive of a linkage between his active service and the current disorders, if shown. The veteran has not done so, and no evidence thus supportive has otherwise been obtained. Here, as in Wells, the record in its whole, after due notification, advisement, and assistance to the appellant under the VCAA, does not contain competent evidence to suggest that the disorders are related to the veteran's military service. In reaching this decision the Board considered the veteran's arguments in support of his assertion that his current neck and back conditions are related to service. The veteran, as a lay person untrained in the field of medicine, is not competent to offer an opinion in this regard. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). These arguments do not provide a factual predicate upon which compensation may be granted and for all of the above reasons, the veteran's claim is denied. Notice and Assistance The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2006); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notification obligation in this case was accomplished by way of letters from the RO to the veteran dated in August 2005, March 2005, and February 2004. While this notice does not provide any information concerning the evaluation or the effective date that could be assigned should service connection be granted, Dingess v. Nicholson, 19 Vet. App. 473 (2006), since this decision affirms the RO's denials of service connection, the veteran is not prejudiced by the failure to provide him that further information. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The veteran and his representative have been kept apprised of the RO's actions in this case by way of the Statement of the Case and the Supplemental Statement of the Case, and have been informed of the evidence considered, the pertinent laws and regulations, and the rationale for the decisions reached in denying the claims. The veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Therefore, the Board finds that duty to notify and duty to assist have been satisfied. ORDER Service connection for a back condition is denied. Service connection for bone spurs of the cervical spine is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs