Citation Nr: 0209457 Decision Date: 08/08/02 Archive Date: 08/21/02 DOCKET NO. 96-07 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. L. Wallin, Associate Counsel INTRODUCTION The veteran served on active duty from October 1970 to May 1972. This case was originally before the Board in August 1998. At that time, the Board remanded the case for further development. In a November 1998 Board decision, the Board affirmed the September 1995 RO decision, which denied reopening the veteran's claim of entitlement to service connection for a low back disability on the basis that the veteran did not submit new and material evidence. The veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In a September 2000 order, CAVC vacated the November 1998 Board decision and remanded the matter. In April 2001, the Board reopened the veteran's claim and remanded it for further development and adjudication. The requested development having been completed, the matter is now ready for appellate disposition. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable resolution of the issue on appeal has been obtained. 2. There is evidence to establish that a low back injury probably occurred during the veteran's period of active duty service. CONCLUSION OF LAW Residuals of a low back injury were incurred in service. 38 U.S.C. §§ 1110, 1111, 1112, 5107 (2002); 38 C.F.R. §§ 3.303, 3.304 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that recent case authority raises some doubt as to whether the duty to notify and assist provisions of the recently enacted Veteran's Claims Assistance Act of 2000 (VCAA) apply to the appellant's claim on appeal. More specifically, in the case of Dyment v. Principi, 287 F.3d 1377, 1385 (Fed. Cir. April 24, 2002), the Federal Circuit held that the duty to notify and assist provisions of the VCAA was not meant to be applied retroactively. However, the Board notes that even assuming the applicability of the VCAA, the case has already been sufficiently developed and adjudicated under the VCAA. The veteran has been placed on notice of the law and regulations pertinent to his claim and further notice of this information would be both redundant and unnecessary. While it is noted that the veteran claims there are outstanding service medical records regarding treatment by a Belgian doctor while he was stationed in Germany, in light of the Board's decision to grant the claim, there is no prejudice to the veteran in proceeding with the disposition thereof. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The veteran claims that he is entitled to service connection for a low back disorder. Specifically, the veteran contends that he injured his back while stationed in Germany. While the Board notes that the veteran has additionally argued that his low back disorder pre-existed service and was aggravated by an in-service injury, in the instant case service connection shall be granted on a direct causation basis. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in line of duty or for aggravation of a preexisting injury in the active military, naval, or air service, during a period of war. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a); Id. At the outset, the Board notes that in an April 2001 Board decision, the medical evidence of record was discussed in great detail. The Board shall only refer to the pertinent and relevant facts used in reaching the instant decision. Based on the following reasons, the veteran's claim of entitlement to service connection for a low back disability is granted. While the Board is not unmindful that the veteran's service medical records are negative for any complaints of or treatment for a low back injury or disease, the Board does not find that to be dispositive in this case in light of the other probative evidence of record. The veteran has indicated that he sought treatment for his back while stationed overseas in Germany from a Belgian doctor. A June 2001 "buddy statement" indicates that he served with the veteran in Germany and corroborated that the veteran did in fact see a Belgian doctor on several occasions, during their 14-month tour in Germany, for soreness and stiffness in his back. The veteran has submitted an October 1995 statement from Dr. L.A. indicating that he treated the veteran for a herniated disc. Dr. L.A. stated that he saw the veteran periodically and treated him for injections and medication for lower back and leg pain beginning in June 1972 through May 1983. A March 1995 statement from the widow of Dr. J.R.P. indicated that the veteran sought treatment from her husband for chronic back pain beginning in September 1972 through 1976. Treatment records from Dr. K. show in September 1983, the veteran presented with recurrent lumbosacral strain. Medical records from Tecumseh Products Company note that the veteran sustained an injury in November 1986, but found that the herniated disc was not due to the veteran's employment. A December 2000 opinion prepared at the request of the veteran by Dr. C.N.B., neuro-radiologist, is of record. He opined that the veteran had significant disc disease on his 1987 MRI scan "which is likely the result of the patient's in-service injury as the patient has described in his testimony...". A 2001 Speed Note from Dr. P.A. indicates that the veteran was disabled and that a preponderance of the evidence suggested that the disability was service connected. An opinion also prepared by Dr. P.A., received by the RO in June 2001, states that it was his opinion that the veteran's in-service injury to his spine likely directly caused his current lumbar spinal disease. The Board is aware that the February 2002 VA examination found that the veteran's right lower extremity radicular pain was unable to be service connected unless the veteran was able to produce service medical records of the incident. This opinion is outweighed by the aforementioned opinions contained within the claims folder, which clearly offer a relationship between the veteran's current low back disorder and his period of active duty service. In this connection, the Board has found as a matter of fact that the veteran did indeed injure his back during service. The Board has thoroughly reviewed all the evidence of record and after careful consideration of all procurable and assembled data, finds that there exists an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the veteran's claim. 38 C.F.R. § 3.102; 66 Fed. Reg. 45, 620 (Aug. 29, 2001)(to be codified as amended at 38 C.F.R. § 3.102). Therefore, as the evidence is in relative equipoise, the veteran's claim must be granted. ORDER Service connection for residuals of a low back injury is granted. ______________________ John E. Ormond, Jr. Member, 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.