Citation Nr: 0121857 Decision Date: 08/29/01 Archive Date: 09/04/01 DOCKET NO. 95-05 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a heart disorder. 3. Entitlement to service connection for a left leg disorder. 4. Entitlement to service connection for asthma. 5. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. W. Fabian, Counsel INTRODUCTION The veteran had active duty from November 1953 to October 1955. These matters come to the Board of Veterans' Appeals (Board) from a December 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision the RO denied entitlement to service connection for the disabilities shown on the title page. The veteran perfected an appeal of that decision. The veteran's claims were previously before the Board in March 2000, at which time the Board denied entitlement to service connection for the claimed disorders. The veteran appealed the March 2000 decision to the United States Court of Appeals for Veterans Claims (Court), and in a November 2000 order the Court vacated the March 2000 decision and remanded the case to the Board for re-adjudication in accordance with the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). FINDINGS OF FACT 1. The RO has notified the veteran of the evidence needed to substantiate his claims and obtained all relevant evidence designated by the veteran in order to assist him in substantiating his claim for VA compensation benefits, and a medical opinion is not necessary to make a decision on his claims. 2. The credible and probative evidence does not show that a back disorder or a heart disorder, initially documented many years following separation from service, is related to an in- service disease or injury. 3. The credible and probative evidence does not show that the veteran currently has asthma, a left leg disorder, or a bilateral foot disorder that is related to an in-service disease or injury. CONCLUSION OF LAW A back disorder, heart disorder, asthma, left leg disorder, and bilateral foot disorder were not incurred in or aggravated by active service, nor can arthritis or cardiovascular disease be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 1991 and Supp. 2001); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's service medical records could not be located and are presumed to have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. A hospital summary indicates that the veteran was hospitalized at the VA Hospital in Long Beach from December 1970 to February 1971 due to complaints of low back pain. He reported that while unloading a truck in July 1969 he slipped and twisted his back, resulting in a sharp pain. He stated that he had constant low back pain since then that prevented him from working. He also reported having had a myocardial infarction in October 1969, while changing a tire, and that he was hospitalized at Saint Francis Hospital. Since then he reportedly had experienced eight "heart emergencies" requiring a visit to the hospital, but he denied severe chest pain. The veteran also reported that about six weeks prior to the current admission he had been hospitalized at White Memorial Hospital for pain radiating down the left leg to the malleolus. According to the veteran a myelogram at White Memorial had been normal and he had been discharged with a diagnosis of "collapsed muscle." The Long Beach VA hospital report reflects that on physical examination the veteran's back was totally normal. A myelogram showed evidence of osteoarthritis in the lumbar spine with no evidence of disc herniation. Electromyography (EMG) also showed evidence of denervation potentials consistent with a nerve root lesion at the L5-S1 and S2 levels. The treating physician noted that the veteran had a history of alcohol addiction. The veteran received a psychiatric evaluation, including psychometric testing, that resulted in a diagnosis of psychophysiologic reaction with a basic inadequate personality. The treating physician found that the veteran had a long-standing personality disorder, and that the onset of his back problems caused him to assume a passive-disabled role. It was felt by the staff that until they could get the veteran a workers' compensation settlement he would cling to his back symptoms. Further evaluation could not be completed because he left the hospital against medical advice, which reportedly he had done at other hospitals. The veteran initially claimed entitlement to VA disability benefits in June 1971, at which time he applied for non- service connected pension benefits. In his June 1971 application he listed his disabilities as a heart disorder, with an onset in October 1969; a nervous condition, with an onset in October 1969; and arthritis, with an onset in July 1969. He denied having received any treatment for the disorders during service or since his separation from service in 1955. He also stated that there were no individuals who had knowledge of the disorders during or since service. He reported having last worked in October 1969 as a truck driver, at which time he became totally disabled. In an October 1971 rating decision the RO determined that the veteran was permanently and totally disabled for non-service connected pension purposes. The diagnoses on which the disability was based included chronic low back pain with osteoarthritis, an inadequate personality, and arteriosclerotic heart disease. The veteran has continued to be eligible for non-service connected pension benefits since October 1971. Documents received from the Social Security Administration (SSA) indicate that the veteran had applied for disability benefits from that agency for a period of disability commencing October 6, 1969, or July 17, 1969. In a January 1972 decision an SSA Administrative Law Judge denied entitlement to disability benefits on the basis that the evidence did not show that the veteran had an impairment or combination of impairments of such severity to preclude him from performing substantially gainful employment. VA treatment records show that the veteran received treatment for respiratory problems in December 1973 and January 1974, with no diagnosis shown. In an April 1974 medical report his treating physician stated that the veteran spent most of his time in bed due to attacks of tachycardia and the fear of death that they caused. The physician described the veteran as being pre-occupied with physical symptoms and obsessed with the perceived severity of his condition, and stated that his disability was primarily functional. The physician noted that the veteran had a long history of "drink" and a psychopathic temperament, and assessed his disability as an anxiety state, irritable heart, and cardiac neurosis. In an additional April 1974 report the physician attributed the veteran's complaints to a psychoneurosis mixed with psychosomatic anxiety. A VA examination in July 1974 resulted in the conclusion that the veteran suffered from daily attacks of severe bronchial asthma. The examination report does not reflect the etiology or onset of the disorder. In a statement of November 1988 the veteran indicated that all of his health problems started in the Army, that he went on sick call four or five times, that he had been sick with his back, heart and asthma for ten years prior to going to VA, and that he had been treated at private hospitals and went to VA when his money ran out. According to a January 1992 statement from the veteran, he injured his back in 1953 and from October 1968 was in the hospital for three years for his back and heart. In March 1992, in conjunction with his attempt to obtain pension benefits retroactive to 1968, the veteran alleged that he had injured his back in 1953 and in 1968 was in the hospital for one year for his back and heart. He submitted a statement signed by three individuals in which they attested that the veteran had become ill in October 1968 due to his back, being paralyzed, and having suffered a heart attack. They also reported multiple hospitalizations for his various complaints beginning in 1968. The veteran claimed entitlement to service connection for the residuals of a back injury in April 1992. The injury purportedly occurred in October 1953, with treatment then and in 1954. In response to the question of whether he had received any treatment for the claimed disorder since service, he reported having been treated at the Long Beach VA Medical Center from 1970 to 1972 and at the Loma Linda VA Medical Center in November 1991. In December 1992 the veteran claimed entitlement to service connection for a heart disorder, the onset of which he reported to have occurred in 1955; a back disorder, which he claimed to have begun in October 1953; a left leg disorder, which began in October 1953; a disorder of the feet, which began in 1956; and asthma, which began in 1971. He stated that he had received treatment for the back disorder in March 1956, and for his back and heart in June 1959. In support of his claim he submitted VA treatment records indicating that he complained of his heart skipping a beat and back problems beginning in November 1971. The treating physician noted at that time that the veteran had a 20 year history of alcohol addiction and had been sober since October 1969 when he thought he had a heart attack. The physician also noted that the veteran was chronically obsessed with the functioning of his heart with ongoing complaints of chest pain and erratic heart beat. The physician assessed the veteran's problems as a psychophysiologic overlay in a basically inadequate personality. In January 1972 the veteran's heart complaints were described as functional. The veteran was hospitalized in August 1973 due to complaints of tachycardia. The physician then noted that the veteran had a long history of psychophysiologic reaction secondary to an inadequate personality. A complete evaluation, including an electrocardiogram (EKG), had revealed no evidence of pathology. During the hospitalization the veteran reported having been given the diagnosis of asthma by a private physician, primarily due to his complaints of shortness of breath. With the exception of slight expiratory wheezes in the base of the left lung, physical examination of all body systems was normal. On psychiatric examination, the veteran was very nervous and registered a number of "rambling" complaints that the physician found were obviously not true. The veteran again underwent a psychological evaluation that resulted in a diagnosis of a psychophysiologic reaction superimposed on possible actual pathology, with an inadequate personality. The veteran was again hospitalized in September 1973 due to complaints of shortness of breath, a productive cough, wheezing, sweating, and a rapid heart rate that first occurred in July 1973. Since July 1973 he had had a number of hospital visits for these complaints, without objective evidence of pathology being found. He also had a history of multiple polypectomies due to chronic sinusitis since 1965. During the hospitalization examination showed clinical findings that were assessed as bronchitis, rule out an allergy component. He was much improved following treatment, and allergy testing was to be conducted following discharge. He received medication for asthma in January and March 1975, and the treating physician noted that he was still receiving the medication in March 1978. In August 1978 the physician recorded that the veteran had a ten-year history of cardiac arrhythmias and a four year history of asthma. The physician noted in November 1979 that the veteran had had recurring heart palpitations since 1968 and a long history of anxiety. The veteran was then taking medication for the heart palpitations. During a December 1979 cardiac evaluation the physician noted that the veteran had a history of asthma. Apparently following the completion of diagnostic testing, his heart symptoms were assessed as paroxysmal atrial fibrillation. VA treatment records indicate that the veteran continued to receive treatment for degenerative joint and disc disease of the lumbar spine and atrial fibrillation, probably due to arteriosclerotic heart disease, through January 2000. In July 1986 he reported having had low back pain since 1968, but denied any history of a back injury. In April 1989 he reported a 20-year history of low back pain, with occasional pain down the left leg. The treating physician referenced prior studies that had revealed degenerative disc disease at L4-L5 and L5-S1. A September 1988 treatment record indicates that the veteran's asthma had been resolved for five years. His relevant diagnoses also included arteriosclerotic heart disease, status post myocardial infarction, and degenerative disc disease. In conjunction with a January 1990 hospitalization for shortness of breath and heart palpitations, the veteran reported that the palpitations had occurred since 1968. He was hospitalized in March 1990 for an acute exacerbation of atrial fibrillation. At that time he reported having had recurrent atrial fibrillation since 1968 that spontaneously resolved. He also reported a six year history of asthma, but he was not then taking any medication for the disorder. A June 1991 hospital summary also shows that he had atrial fibrillation since 1968. The veteran's treating physician recorded his relevant diagnoses in October 1991 to include a history of paroxysmal atrial fibrillation, the last episode having occurred in April 1990; degenerative joint disease of the spine with chronic low back pain; arteriosclerotic heart disease, asymptomatic, with EKG evidence of a prior myocardial infarction; and a history of asthma, with no symptoms for the previous five years. A November 1992 treatment record indicates that the veteran reported having injured his ankle while in service. Results of pulmonary function tests in December 1992 were normal. In January 1993 he reported a history of asthma, for which he was not then taking medication. According to a February 1993 treatment note, the veteran had a history of paralysis of the left leg 30 years previously, which was purportedly due to his back disorder. In March 1993 he stated that he injured his back in 1953, and that he fractured his left ankle in the 1950s. In March 1993 the veteran submitted a statement signed by four individuals, one of whom had also signed the March 1992 statement. The four individuals stated that the veteran had been disabled due to back, heart, and leg problems and asthma since 1955. Treatment records from the Loma Linda Community Hospital, received by the RO in 1993, show that the veteran was hospitalized in December 1973 for acute asthmatic episodes complicated by paroxysmal tachycardia of "long duration." He underwent a psychiatric evaluation at that time, during which he disclosed a long history of alcoholism from the age of 18 or 19 years until three or four years earlier. He reported having had episodes of asthma and tachycardia prior to his cessation of drinking, but that the symptoms became increasingly severe afterwards. He stated that he had been unable to work for the previous eight years due to weakness, palpitations, respiratory difficulties, and chronic gastroenteritis. The psychiatric evaluation resulted in a diagnosis of a personality disorder with alcohol habituation (in remission), drug dependency (he was taking large amounts of Librium), and depression. He was discharged from the hospital with diagnoses of purulent bronchitis, bronchial asthma, and a personality disorder. The Loma Linda records also show that in September 1975 the veteran stated that he had been in good health until 1969, when he fainted on the job. He had been hospitalized numerous times since 1969 due to tachycardia which had been diagnosed that year. He developed bronchial asthma in 1973 and experienced recurrent attacks. He also had an eight or nine year history of recurrent palpitations and arrhythmias. At that time he had no known history of heart disease and a history of severe asthmatic bronchitis of three years in duration. He had no history of asthma prior to moving to San Bernardino from Los Angeles three years previously. A February 1976 Loma Linda Community Hospital summary indicates that the veteran had a long history of intrinsic bronchial asthma, for which he took multiple medications. He was hospitalized due to complaints of chest pain. Following physical examination and diagnostic testing, including an EKG, his complaints were assessed as supraventricular tachycardia, probably due to arteriosclerotic heart disease; probable arteriosclerotic heart disease; and severe bronchial asthma. In April 1976 the veteran reported having occasional attacks of bronchial asthma at night, for which he took medication. The RO also obtained treatment records from White Memorial Hospital, which show that in November 1970 the veteran was admitted for back pain that radiated down the left leg. The admission record reflects that the "responsible person" was "self-workman's comp." The veteran reported having fallen off a truck in July 1969, with back and left leg pain since then. An X-ray study of the lumbar spine revealed a slightly narrowed intervertebral disc space at L4-L5, without evidence of hypertrophic changes, and a myelogram showed minimal herniation of the nucleus pulposus at L4-L5, but no other abnormalities. Medical records from the San Bernardino County Medical Hospital indicate that the veteran was receiving treatment for asthma in July 1974, which was shown to be stable. A September 1960 Brookville Hospital summary, received in 1998, shows that the veteran was hospitalized for a bi- malleolar fracture of the left ankle and laceration of the scalp sustained in an accident. During a September 1994 hearing, the veteran testified that while in service he fell into a hole and injured his back. He stated that he received treatment at that time, and that his complaints were diagnosed as a back strain or torn ligament or "something like that." He also testified that he continued to have problems with his back throughout the remainder of service, for which he was given pain medication. He stated that he was hospitalized for back problems at the Clarion Hospital for three weeks in 1956, and that he continued to have back problems following his service. He also stated that he aggravated the back problem loading trucks, but denied any other back injury. In describing his purported leg problem the veteran stated that his ankle collapsed every few months. He reported having been treated for the left leg and ankle once or twice a month while in service by having the leg wrapped and an insert put in his boot. He stated that he continued to have problems with the left leg after he separated from service, and that he received treatment in 1957. He also stated that the left leg problem had been diagnosed as a broken ankle while he was in service. When asked whether he thought the problem was with his left leg or ankle, he stated that he thought the problem was caused by his back. He also testified that while working for a telephone company in early 1957, after service, he was trying to climb a telephone pole when [he] just collapsed. When asked whether he was treated for a heart condition in service, the veteran testified that they called it anxiety. He testified that after he hurt his back he started having heart palpitations and an irregular heart rate, for which he was given medication, and that he continued to have such problems since then. He also stated that he was initially treated for heart problems in 1956 when his heart rate was 200. He indicated that was diagnosed with "Hi-fi something" within six months to a year after service and that "[t]hey did not say anything about the heart. Never mentioned the heart." He later stated that his separation from service had been delayed because he was being treated for an irregular heart rate. He also testified that he developed allergy problems while serving in Korea and Japan, and that he had asthma ever since. He stated that he had bronchitis while in service and was allergic to something, diagnosed as asthma in 1954. He stated that during service his feet became "itchy," which he was told was caused by the dye in his boots. He also testified that he still suffered with the problem. Transcript. In an October 1994 statement the veteran reported that he received treatment for severe back, heart, and asthma problems starting in 1955, but that he did not seek VA treatment because he did not know that he was eligible for such. He stated that while hospitalized at White Memorial Hospital in 1970 he lacked the money for care, so he was sent to the VA hospital. While at the VA hospital a VA claim was apparently filed for him, but he denied knowing the nature of the claim. The veteran submitted a statement from his aunt in March 1997 in which she stated that the veteran had visited her in 1968 to 1970, at which time he was totally disabled. In June 1997 the veteran submitted a statement from his brother in which the brother stated that the veteran had incurred a back injury in service in 1953 and had had a heart attack in 1968 or 1969. He also stated that the veteran had complained of back problems since being separated from service in 1955, and that he had been treated for heart, asthma, and back problems since 1968. The veteran also submitted a statement from his sister in which she stated that he had injured his back and legs in 1953. Another individual stated that she had known the veteran since 1963, and had visited him in the hospital in 1967-1968 when he was being treated for back, heart, and leg problems. A fourth individual stated that the veteran had been hospitalized in 1955-1956 for back, leg, ankle, and lung problems. Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131. 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Where a veteran served ninety days or more during a period of war or during peacetime service after December 31, 1946, and arthritis or cardiovascular disease becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (2000). This presumption is rebuttable by affirmative evidence to the contrary. Id. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service or during the relevant presumptive period; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (West 1991 and Supp. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duty to Assist The statute pertaining to VA's duty to assist the veteran in developing the evidence in support of his claim was recently revised. In accordance with the revised statute, VA has a duty to notify the veteran of the evidence needed to substantiate his claim. VA also has a duty to assist the veteran in obtaining such evidence, including obtaining private records, if a reasonable possibility exists that such assistance would aid in substantiating the claim. In the case of a claim for compensation benefits, the duty to assist also includes obtaining the veteran's service medical records and other records pertaining to service; records of relevant treatment at VA facilities, or provided at the expense of VA; and any other relevant records held by any Federal department or agency identified by the veteran. If VA is unable to obtain records identified by the veteran, VA must notify him of the identity of the records that were not obtained, explain the efforts to obtain the records, and describe any further action to be taken to obtain the records. Also in the case of a claim for disability compensation, the duty to assist includes providing a medical examination or obtaining a medical opinion if such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. §§ 5103 and 5103A (West Supp. 2001). In a September 1993 letter to the veteran's Congressional representative the RO informed the veteran of the evidence necessary to establish service connection for the claimed disorders. The RO provided the veteran a statement of the case and supplemental statements of the case in June 1994, October 1994, and July 1999. Those documents informed the veteran of the regulatory requirements for establishing service connection, the evidence that had been considered by the RO, and the rationale for denying benefits. The veteran's representative reviewed the claims file in June 1996, January 1997, November 1999, and January 2000, and did not indicate that the veteran had any additional evidence to submit. The RO provided a copy of the veteran's three-volume claims file to his representative in July 2000, in conjunction with his appeal to the Court. The RO notified the veteran each time that his case was sent to the Board, and informed him that any additional evidence should be submitted to the Board. In the February 1997 remand the RO informed the veteran of the discrepancies in the existing evidence and the additional evidence that needed to be developed. The RO informed the veteran in February 1997 that he needed to submit the statements he had referred to from individuals regarding his claimed treatment; a list of the names and addresses of any medical care providers that had treated his claimed disabilities; and records pertaining to the receipt of workers' compensation benefits in the 1970s. The veteran provided the requested authorizations for the release of medical records and the personal statements described above, and in August 1999 stated that he had no further evidence to submit. He then asked that his case be adjudicated based on the evidence of record. The Board finds, therefore, that VA has fulfilled its obligation to inform the veteran of the evidence needed to substantiate his claim. As previously stated, the veteran's service medical records are not in the file. The RO initially requested the service medical records from the NPRC in May 1993. In June 1993 the RO received the response that no medical records were on file at the NPRC, and that any records sent to that facility were presumed to have been destroyed in the 1973 fire. The NPRC provided a form for the veteran to complete in order to develop alternative sources for the medical records, which the veteran completed and the RO submitted to the NPRC in August 1993. The NPRC responded that a search had been conducted of the morning reports for the veteran's unit, but that no reference to the veteran going to sick call during the relevant time periods could be located. In its February 1997 remand the Board instructed the RO to have the NPRC search the records of the Office of the Surgeon General of the Army (SGO), and any other possible source for medical records pertaining to the veteran. The NPRC responded by stating that no SGO records could be located for the veteran, and that more specific information was needed in order to conduct a further search. Because the veteran had previously given detailed information regarding his claimed treatment, and the NPRC was not able to locate any medical records from alternative sources based on that information, the Board concludes that the veteran's service medical records cannot be obtained. The RO notified the veteran of that fact in the July 1999 supplemental statement of the case. In the February 1997 remand the Board also instructed the RO to obtain the medical records relied upon by SSA in conjunction with the veteran's claim for disability benefits from that agency. The RO requested those records, and the SSA replied that all medical records relied upon in the veteran's claim, which he filed in the 1960s, had been destroyed. The veteran was also notified of SSA's response in the July 1999 supplemental statement of the case. During the processing of his claim and appeal the veteran has reported receiving relevant medical treatment from the VA medical center (MC) in Long Beach, California; the VAMC in Jackson, Mississippi; the VAMC in Loma Linda, California; the Loma Linda Community Hospital; St. Francis Hospital in Lynnwood, California; White Memorial Hospital in Los Angeles, California; the Clarion Hospital in Clarion, Pennsylvania; the Brookville Hospital in Brookville, Pennsylvania; the Bellflower Hospital in Bellflower, California; the San Bernardino Hospital; and the Pittsburgh County Hospital in Pittsburgh, Pennsylvania. The veteran also stated that he had tried to obtain the records of treatment from the facilities providing care in the 1950s, but that no records were available. Nonetheless, in April 1998 the RO requested the relevant medical records from those facilities, with the exception of the Pittsburgh County Hospital. The RO did not request those records because an address for the facility could not be located, and on subsequent contact the veteran was not able to provide an address. The RO obtained all of the VA and private medical records designated by the veteran, with the exception of any records from the St. Francis Medical Center, the VAMC in Jackson, Mississippi, the Clarion Hospital, and the White Memorial Medical Center. Those facilities responded to the RO's request by indicating that they had no records for the veteran. In addition, the Bellflower Hospital did not respond to the RO's request. Based on the law in effect when the Board's March 2000 decision was rendered, the veteran had a threshold obligation to submit a well-grounded claim for service connection before VA had a duty to assist him in developing any relevant evidence. 38 U.S.C.A. § 5107(a) (West 1991); Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order). In the February 1997 remand the Board instructed the RO to provide the veteran with VA medical examinations in order to obtain medical opinions regarding the etiology of his claimed disorders, if the RO determined that the claims for service connection were well grounded. In the July 1999 supplemental statement of the case the RO determined that the claims for service connection were not well grounded, and did not provide the veteran any VA medical examinations. On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 et seq. (West Supp. 2001)) became law. This law redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminated the concept of a well-grounded claim and superseded the Court's decision in Morton, 12 Vet. App. at 477, in which the Court had held that VA could not assist in the development of a claim that was not well grounded. The change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7(a), 114 Stat. 2099-2100 (2000), 38 U.S.C.A. § 5107 Note (Effective Date and Applicability Provisions); Holliday v. Principi, 14 Vet. App. 282-83 (2001), mot. for recons. denied, 14 Vet. App. 327 (2001) (per curiam order), mot. for review en banc denied, (May 24, 2001) (per curiam). According to the VCAA, in a claim for compensation benefits the duty to assist includes providing a VA medical examination or obtaining a medical opinion if such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the evidence of record, taking into consideration all information and lay or medical evidence, includes 1) competent evidence that the veteran has a current disability, or persistent or recurrent symptoms of disability, and 2) indicates that the disability or symptoms may be associated with the veteran's active service, but 3) does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A. In July 2001, the RO advised the veteran's attorney representative that he could submit additional evidence or argument in support of the appeal and that he had 90 days to do so. In response, the attorney argued that the case be remanded to the RO for compliance with the VCAA. As explained above, the RO has fully notified the veteran of the evidence needed to substantiate his claim and obtained all available medical records claimed to be relevant to his appeal. Those records do not document any complaints or clinical findings pertaining to the claimed disorders prior to 1970, with the exception of the 1960 medical record showing that the veteran had sustained a left ankle fracture in an accident. Additionally, the earliest records do not reflect any history of in-service medical problems or injuries. In fact, those records clearly show that the veteran's relevant medical history dates back to several years after service. Thus, any current medical opinion that might rely on a purported history of in-service symptoms and trauma would not be probative inasmuch as such a history is rejected as not credible in light of the factors explained above. Accordingly, remand of the case in order to obtain a medical examination or opinion is not required prior to considering the substantive merits of the veteran's claims. Sabonis v. Brown, 6 Vet. App. 426, 430 (1991) (development is not required if no benefit would flow to the veteran). The Board concludes that all relevant data has been obtained for determining the merits of the veteran's claims and that VA has fulfilled its obligation to assist him in the development of the relevant evidence. As previously stated, in the March 2000 decision the Board determined that the claims for service connection were not well grounded. In the original December 1993 rating decision, however, the RO denied entitlement to service connection for the claimed disorders based on the substantive merits of the claims. Throughout the processing of his claim and appeal the veteran has presented evidence and arguments supporting his basic contention that the disorders were incurred in service, not whether his claims were well grounded. The Board finds, therefore, that it can now consider the substantive merits of the veteran's claims without prejudice to him. Curry v. Brown, 7 Vet. App. 59, 68 (1994). Analysis Back and Heart Disorders The medical evidence shows that the veteran currently has degenerative joint and disc disease of the lumbar spine and paroxysmal atrial fibrillation due to arteriosclerotic heart disease. Thus, the medical evidence establishes current disability relating to the back and heart. Hickson, 12 Vet. App. at 253. There is no medical evidence, however, documenting the existence of a back or heart disorder prior to November 1970. As a lay person the veteran is competent to provide evidence of observable symptoms and events. Savage v. Gober, 10 Vet. App. 488, 496 (1997). He has provided testimony and lay statements in which he and others have asserted that he injured his back and initially experienced heart palpitations during service. He also contends that he received treatment for these disorders during service, and shortly after separation. His service medical records are not available, and cannot be relied on to support or contradict his assertions. If the service medical records are presumed to have been destroyed, VA has a heightened obligation to explain its findings and conclusions and to consider whether the evidence is in equipoise. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board is not, however, required to accept the veteran's assertions as true, in the absence of contemporaneous evidence. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The earliest available medical record is the November 1970 summary from White Memorial Hospital, which shows that the veteran's back pain began when he fell off a truck in about July 1969. The February 1971 VA hospital summary also shows that the onset of back pain in July 1969, and that his complaints pertaining to the heart began in October 1969, when he purportedly had a myocardial infarction. There is nothing in these records to suggest the onset of back or heart problems during or in proximity to service. The evidence also shows that the veteran sought workers' compensation for the back injury, indicating that he believed it was of post-service origin. When the veteran initially claimed VA disability benefits in June 1971, he claimed nonservice-connected pension benefits, stating that his heart disorder began in October 1969 and that "arthritis" (apparently of the spine) began in July 1969. He specifically denied having received treatment for either disorder during service, and denied that anyone had knowledge of the disorders during or since service. The lay statement presented by the veteran in March 1992 does not mention his military service and seems to link the onset of his back and heart problems to 1968, many years after service and consistent with the most credible evidence. In 1988 the veteran alleged that all of his problems started in the Army. He also stated that he had received private treatment for his disabilities ten years before he went to VA, which, even if true, would have been several years after service. It was not until December 1992, however, that the veteran reported post-service treatment beginning in the 1950s for back and heart disorders. Despite the veteran's statements made many years after service in support of obtaining service connection, the most probative evidence in this case is that closest in time to events. Such evidence indicates that the veteran's medical problems began in 1968 or 1969, more than 10 years following his separation from service. The veteran's accounts given later, when he was trying to establish service connection, are less credible since, at best, they reflect recollections that are subject to fading or distortion by the passage of time. The Board finds, therefore, that the veteran's assertions and the lay statements attempting to link his disabilities to service are not credible, and that he did not experience the onset of his heart or back disorder while in service. See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence). Thus, the veteran's claim for service connection for back and heart disorders is not supported by credible and probative evidence of the incurrence of a back or heart disorder during service or that arthritis or a heart disorder was compensably manifested within the presumptive period. 38 C.F.R. § 3.309(a). In addition, none of the medical evidence is probative of a nexus between the disorders and service. The Board has determined, therefore, that the preponderance of the evidence is against the claims of entitlement to service connection for back and heart disorders. Left Leg and Bilateral Foot Disorders The veteran contends that he incurred a left leg and bilateral foot disorder during service. As noted above, he has not been a reliable and credible historian in respect to his service connection claims. For example, on one occasion he reported having been hospitalized for three years beginning in 1968 when the objective evidence shows that to be untrue. Additionally, he has not been clear as to any specific disability of the lower extremities. The medical evidence indicates that in September 1960, almost five years after service, he incurred a fracture of the left ankle. The September 1960 hospital record does not mention any prior history of ankle/foot problems. In any event, any residual disability, if present, from the 1960 accident clearly would not be service connected. The veteran has also experienced pain in the left leg that was attributed to radiculopathy caused by his low back pathology. Any such lower extremity symptoms also would not be service connected inasmuch as service connection is denied for the back disability. He has undergone numerous medical evaluations by VA and private physicians, none of which resulted in a diagnosis of pathology pertaining to the left leg or the feet. Although the veteran testified that he continued to have "problems" with his leg and feet, he has not described any persistent or recurrent symptoms of disability pertaining to the left leg or the feet. 38 U.S.C.A. § 5103A. Even assuming, for the sake of argument, that the medical evidence shows current left leg and foot disabilities, the claim is not supported by credible evidence that any such disability was incurred during service. As already noted, the documented left ankle fracture sustained in 1960, five years after service, is not service related, and there is no evidence documenting left leg or foot symptoms for 15 years following service. Radicular symptoms affecting the left foot that were noted in 1970 were related to the veteran's back disorder and, thus, not of service origin. The veteran's testimony that he experienced collapsing of the left leg shortly after entering service and that he sustained ankle fractures during service is without medical corroboration in the extensive record. Additionally, he did not mention any lower extremity disabilities in his initial claim for VA disability benefits or for years thereafter. Thus, his testimony of an ankle fracture and other lower extremity problems during service is without any credible corroboration. Since the veteran himself is not credible, his testimony need not be accepted. The lay statements submitted on the veteran's behalf generally do not support the service incurrence of foot or leg disabilities. However, even if the veteran was hospitalized for leg and ankle problems in "1955-1957" as reported by D.M., that statement does not tend to show that the veteran has any chronic disability related to service. Lacking credible and probative evidence that the veteran has a foot or left leg disability related to service, the Board has concludes that the preponderance of the evidence is against the claims of entitlement to service connection for left leg and bilateral foot disabilities. Asthma Although the veteran testified in September 1994 that he had had asthma since service, his statements are not probative because he is not competent to provide a medical diagnosis. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). He did not mention asthma in his initial claim for VA disability benefits, and the medical evidence shows that he was treated for bronchitis or asthma from 1973 to 1983, decades after service. Loma Linda Community Hospital records dated in 1973 indicate that he had a three or four year history of asthma and subsequent private medical records show a similar history. The veteran underwent numerous VA and private medical evaluations since 1983, with no documentation of symptoms or clinical findings indicating that asthma/bronchitis persisted beyond 1983. In addition, the competent and probative evidence does not indicate that any asthma (or bronchitis) was of service origin or otherwise related to service. Thus, the preponderance of the evidence is against the claim of entitlement to service connection for asthma. ORDER The claim of entitlement to service connection for a back disorder is denied. The claim of entitlement to service connection for a heart disorder is denied. The claim of entitlement to service connection for a left leg disorder is denied. The claim of entitlement to service connection for a bilateral foot disorder is denied. The claim of entitlement to service connection for asthma is denied. JANE E. SHARP Member, Board of Veterans' Appeals