Citation Nr: 0309771 Decision Date: 05/22/03 Archive Date: 05/27/03 DOCKET NO. 95-24 528A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for residuals of a back injury. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Ward, Associate Counsel INTRODUCTION The veteran had active military service from October 1942 to June 1943. This matter comes before the Board of Veterans' Appeals (Board) from a June 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania, (RO), which denied the claim of entitlement to service connection for a back injury. The veteran testified at a personal hearing before a hearing officer at the RO in August 1995, and in April 1997 before a now retired member of the Board. In a May 2000 remand, the veteran was notified of his right to another Travel Board hearing since the Board Member before whom he testified in April 1997, had retired. The veteran requested another hearing in June 2000. When advised of the Travel Board hearing scheduled for April 8, 2003, the veteran indicated by letter dated in March 17, 2003, that he was unable to attend because of his health which kept him at home, and his age. Since no request has been made for postponement or motion submitted for a new hearing, the Board deems the request for a hearing withdrawn, and will proceed with adjudication of the case See 38 C.F.R. § 20.702(e). Copies of the transcripts of the above hearings are of record. FINDINGS OF FACT 1. All relevant evidence necessary for disposition of the veteran's appeal has been obtained and associated with the claims file. 2. Medical evidence shows that the veteran is currently diagnosed with degenerative arthritis of the lumbar spine, status post lumbar fusion, L4 to the sacrum, with junctional degenerative changes; and chronic lumbar polyradiculopathy (hereinafter back disability). 3. There is no credible medical evidence showing back injury in service, or that the current back disability was present in service or manifest to a compensable degree within one year of the veteran's separation from service. 4. There is no credible lay or medical evidence indicating that the back disability may be associated with the veteran's period of active duty service. CONCLUSION OF LAW The veteran's current back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(A), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist and Notify On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001), 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). Among other things, the VCAA redefines the obligations of VA with respect to the duties to notify and assist. This 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. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107. The Board is satisfied that all relevant facts have been sufficiently developed, and no further assistance to the veteran is required to comply with VA's duties to notify and assist the veteran with his claim as mandated by the VCAA. In this regard, the record shows that by the rating decisions, as well as in the statement of the case, supplemental statements of the case, and various correspondence including the Board's remand of May 2000, VA informed the veteran of the evidence needed to support his claim. In a VCAA notice dated in February 2003, the RO notified the veteran of the need to supply competent medical evidence to support his claim, and informed of efforts VA would make to secure outstanding VA and private medical records. Additionally, the RO requested and made repeated attempts to obtain all records identified by the veteran, including all outstanding relevant treatment records. The veteran has not referenced any outstanding evidence that might aid in his claim that the RO has not made attempts to obtain, there is no identified evidence that has not been accounted for, and the veteran has been given the opportunity to submit written argument. During the course of this appeal, the regulation authorizing the Board to develop evidence or to cure a procedural defect was invalidated. See Disabled American Veterans v. Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003). By letter dated February 25, 2003, the RO attempted to comply with the notification requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159 (2002), by informing the veteran of the evidence and information needed to substantiate his claims, the evidence and information that he should submit and the assistance that VA would provide in obtaining evidence and information on his behalf. In this letter, the RO also informed the veteran that he would be afforded a period of 30 days in which to submit the additional evidence and information and that his claims would be decided on the current record if the requested evidence and information were not received within the 30 days allotted. The 30 day limit for the submission of additional evidence and information is contrary to the provisions of 38 U.S.C.A. § 5103(b) (West 2002), which provide that a claimant must submit requested evidence and information within one year of the date of the letter notifying the claimant of the required evidence and information. See Disabled American Veterans v. Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003). However, the Board notes a Report of Contact dated in February 2003, which shows that the veteran's wife indicated there was no new evidence to submit. Further, in his letter dated in March 2003, the veteran explicitly waived RO consideration of additional evidence and records submitted to the Board regarding his appeal. Thus, although the record reflects that the veteran has not been afforded the one-year period in which to submit the evidence and information requested by the RO, and that he was not properly notified of the time limit for the submission of additional evidence and information, inasmuch as he has indicated that no further evidence would be submitted and has waived initial RO consideration of additional evidence, the Board finds that further notification under the VCAA, and readjudication by the RO of the issue on appeal, are unwarranted. Under the circumstances, the Board finds that the veteran has been provided with adequate notice of the evidence needed to successfully prove his claim, and that there is no prejudice to him by appellate consideration of the claim at this time without another remand of the case to the RO for providing additional assistance to the veteran in the development of his claim as required by the VCAA or to give him another opportunity to present additional evidence and/or argument. Bernard v. Brown, 4 Vet. App. 384 (1993). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). The record on appeal demonstrates the futility of any further evidentiary development and that there is no reasonable possibility that further assistance would aid him in substantiating his claim. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist her in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Background The service medical records (SMRs) show that on induction physical examination in October 1942, the veteran's spine, nervous system, and health were noted as normal. He was examined and found fit and qualified for military service. During service, beginning in April 1943, the SMRs reflect complaints of recurrent and severe headaches for the previous two months. The headaches were reported as recurring every few days. A Report of Medical Survey dated in April 1943, by Medical Board for his discharge, shows that the veteran was admitted into US Naval Hospitals in Fort Pierce, Florida, and Jacksonville, Florida for evaluation for migraine. The veteran related that his migraine headaches were present several years prior to enlistment, with private hospitalization in 1940 for the headaches, with no relief. Headaches were noted as severe enough to interfere with his military duties. Diagnosis was migraine headaches. He was noted unfit for service because of this disability, released from active duty and discharged from the U.S. Naval Reserve. Review of the service medical records shows no complaints, diagnosis or treatment of a back injury. In November 1944, the veteran submitted a VA Form 21-526 claim for compensation or pension based on military service. In block 6 of this form, he noted that he was claiming nervousness beginning in 1939. In block 7, he indicated that he received treatment from May 1943 at Jacksonville Hospital for nervousness, and that he was sent from Fort Pierce, Florida to Jacksonville, Florida Naval Hospitals for treatment. He also reported treatment for migraine headaches in 1939 and 1940 prior to enlistment. He made no claim for a back injury in service and did not report any back pathology at that time. On VA Physical Examination dated in January 1945, the veteran's current employment was noted as a woodworker. The veteran reported a history of migraine headaches, nervousness, and pain in the arms, shoulders and the back of his head. The examiner noted that the veteran was not having headaches at that time; and was steadily employed in a carpenter's shop. Postural difficulty was noted, and a half- inch lift was added to the right heel. Findings were noted that there was no medical disease, migraine as of record, and condition greatly improved. The examiner noted the veteran was unfit for military service, except defensive warfare. No history of a back injury in service, or complaints of residuals of a back injury in service were reported or noted. Service connection for migraine was granted, noncompensably rated, effective from November 1944, and has remained unchanged. In October 1994, the veteran filed a VA Form 21-526, for compensation asserting that he sustained a low back injury in service, which occurred while making training landings in a landing craft. He stated that he reported the injury at that time to the superior officer, and could not recall the exact date, but it was in 1943. In block 19a of this form, he noted diseases as headaches and back pain. The veteran also noted a past medical history of inactive ulcerative colitis; and herniorraphy and orchiectomy approximately 20 years prior. In support of his claim, he submitted a July 1974 Discharge Summary from Albert Einstein Medical Center which showed hospitalization for laminectomy and fusion surgery. The veteran reported (in 1974) a history of chronic low back pain for approximately ten years with an exacerbation three months prior to admission. There was no history of recent trauma, and he reported that pain started in the buttocks, and radiated down the right lower extremity. A final diagnosis was made of herniated lumbar disc. In a rating decision of June 1995, the RO denied service connection for back injury, and continued the zero percent rating for the service-connected migraine headaches. The veteran appealed. In VA Forms 21-4142 dated in 1994 and 1997, the veteran stated that he had been treated since separation from service for a back injury. He identified the following providers: Albert Einstein Medical Center; Drs. Albert, Wohl and Hecklin; Dr. Werthan; U.S. Naval Hospitals in Fort Pierce, Jacksonville, and Philadelphia in 1943 and 1944; Dr. Farrell; Dr. Koolpe (reported as retired by the veteran); Dr. Rodorer, (reported as deceased by the veteran); Dr. Markmann; Dr. Hamburg (reported as deceased by the veteran); St. Joseph's Hospital, and Jeanne's Hospital. He also submitted a Social Security Award Certificate dated in September 1980, from the Social Security Administration (SSA), showing entitlement to a disability award from December 1980. The nature of the disability was not indicated. Beginning in November 1994, the RO made repeated requests for medical records from each listed provider, and again in August 1997 and 1998, when additional providers, as listed above, were identified by the veteran. The RO also requested from the National Personnel Records Center (NPRC), additional records for treatment at Philadelphia and Jacksonville U.S. Naval Hospitals in 1943 and 1944, after separation from service; and requested the underlying medical records from SSA which formed the basis of the December 1980 SSA disability award. In an October 1997 response, SSA indicated that the claims folder on which it based its disability award had been destroyed as part of the Agency's regular folder inactivation process and no other medical information existed. In a letter dated in April 1998, St. Joseph's Hospital informed the RO that there was no record of the veteran being a patient at St. Joseph's Hospital. By a note appended to the RO's July 1998 request for medical records, Jeannes Hospital indicated that a thorough search of their files revealed no records of treatment for the veteran. In a March 2000 response, NPRC notified that it had mailed all available records of hospitalization, stating that no records of in service back injury were identified in the searches. Treatment records were obtained from all private physicians, other than those listed by the veteran as deceased or retired. A July 1974 operative report from Albert Einstein Medical Center shows pre-operative diagnosis of "Spondylolithiasis" (sic), L5, S1 plus herniated nucleus pulposus, L3 & L4 in the right side. Post operative diagnosis was herniated lumbar disc. February 1977 private treatment notes from Dr. Werthan show treatment for severe back pain, and severe spasms in right leg and foot resulting from an auto accident in January 1977. The physician noted a diagnosis of acute lumbosacral strain with increase in an L5 radiculopathy. A private June 1998 report on electrodiagnostic and nerve conduction studies showed diagnoses of bilateral chronic lumbar polyradiculopathy with evidence of acute nerve root irritation at the L5 and S1 levels bilaterally plus evidence of mild acute nerve root injury at L5 level on the right side; and a generalized peripheral neuropathy. Another June 1998 orthopedic report noted a diagnostic impression of degenerative arthritis of the lumbar spine; status post lumbar fusion, L4 to the sacrum, with junctional degenerative changes. Early degenerative arthritis, right hip. Lumbar radiculopathy; rule out degenerative arthritis, right ankle. In a personal hearing before the RO in August 1995, the veteran testified to the effect that he injured his back in service. He reported that he reported it to a superior officer, and returned to duty the next night. Some weeks later, he testified that he was examined at Jacksonville Hospital, and back x-rays were done. He testified that he was also treated at Philadelphia Naval Hospital after discharge, where he was told to put a lift in his right shoe to alleviate back pain. He testified that from about 1945 to his hospitalization in 1974 for herniated disc, he had no other back injury, and had been treated for back pain during this period. The Hearing Officer denied the claim on the basis that there was no evidence of back injury in service, and none until about 30 years after service. In a hearing before the Board in April 1997, the veteran reiterated his prior testimony of back injury in service, and subsequent back pain. He testified that about 20 years after the in service back injury, he was awarded disability from the SSA. He testified that the doctor who treated him after his separation from service in June 1943 was deceased. He reported that a doctor he saw during at that time told him that the radiologist who x-rayed his back said he must have been hit by a truck, and that fusion was possible in the future. He asserted that the damage discovered in 1974, when he had back surgery, was the damage done to his back in service in 1943. When first before the Board in May 2000, the case was remanded and the veteran advised of his right under VA regulations to have another a Travel Board hearing, because the Board Member who had heard the veteran's April 1997 testimony had retired. By letter of March 2003, the veteran advised that he was unable to attend the scheduled Travel Board hearing because his health has not been up to par and he was going on 82 years. In numerous statements of record, the veteran has asserted that his current back pathology is the result of a back injury in service. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be a current disability resulting from that condition or injury. Service connection may also be granted for any disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Once the evidence has been assembled, the Board has the duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (internal citations omitted). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. 5107; 38 C.F.R. 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In this case, the Board notes that there is no credible evidence of record which shows that the veteran had a back injury in service. In reaching this determination, the Board acknowledges that it must consider all possible avenues by which the veteran may establish entitlement to service connection. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000). The veteran's service medical records, including his October 1942 enlistment and April 1943 Medical Board report for discharge, are negative for any complaints, diagnoses, or findings of a back injury in service. In November 1944, about one year post separation, the veteran filed a claim for migraine headaches identified in service. He underwent VA examination in January 1945. At that time, he reported no back injury or pain, although he had ample opportunity to do so at that time. There is no competent medical evidence in the record substantiating the assertions of occurrence of a back condition in service, and of pain and treatment after service, until almost 30 years after separation from service with his back surgery in 1974 for herniated disc. And at that time he reported his symptoms had begun about 10 years earlier-the mid-1960s. Essentially, the evidence favoring the veteran consists of his own statements attesting to in service back injury, and subsequent symptomatology. However, the veteran has not been shown to possess the medical expertise needed to render a competent medical opinion as to causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). As such, his lay opinion does not constitute competent medical evidence. There is simply no evidence of record of back injury or treatment during service, or for thirty years after service, other than the veteran's own statements. Where, as here, disability is not shown until many years after service, VA is not required to accept the veteran's uncorroborated assertions as to service incurrence or aggravation. Wood v. Derwinski, 1 Vet. App. 190, 192 (1991); Sheets v. Derwinski, 2 Vet. App. 512 (1992). We find that the lack of treatment or verified symptoms in the service records and over the years between service and the demonstrated presence of the current disability, as well as the statement made for medical purposes in 1974 indicating the condition had begun in the 1960s, outweigh the veteran's assertions and render his testimony less credible. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. However, when, as in this case, after consideration of all the evidence, the Board finds that the preponderance of it is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of a back injury is denied. ____________________________________________ J. E. Day Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.