Citation Nr: 0739559	
Decision Date: 12/14/07    Archive Date: 12/19/07

DOCKET NO.  99-12 507	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for a back disability.

2.  Entitlement to service connection for dysthymic disorder 
as secondary to a service-connected disability.



REPRESENTATION

Appellant represented by:	Michael E. Wildhaber, Attorney 
at Law



ATTORNEY FOR THE BOARD

Michael Holincheck, Counsel

INTRODUCTION

The veteran served on active duty from August 15, 1979, to 
October 16, 1979.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 1998 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
San Juan, Puerto Rico.

The Board previously denied the veteran's claim by way of a 
decision dated in October 2004.  The veteran's attorney and 
VA's General Counsel filed a Joint Motion requesting that the 
Court vacate the Board's decision.  The Court granted the 
Joint Motion in April 2005 and returned the case to the 
Board.

The Board remanded the case for additional development in 
October 2005.  The RO conducted additional development, to 
include the inclusion of a medical opinion and argument 
submitted the veteran's attorney.  A supplemental statement 
of the case was issued in January 2006.  The case was 
certified on appeal to the Board in January 2006.

The veteran's attorney submitted a request to review the 
veteran's claims folder, prior to the issuance of any Board 
decision, in February 2006.  The attorney also advised that 
additional medical evidence would be submitted within the 
next 60 days, or sooner, depending on when the claims folder 
could be reviewed.  

The attorney faxed a new request for an extension of time to 
submit evidence on March 27, 2006.  An additional extension 
of 60 days was requested.

The Board issued a decision that denied the veteran's claim 
on March 29, 2006.

The veteran's attorney submitted a motion for reconsideration 
in July 2006.  The motion noted that the veteran had 
requested two extensions of time to submit evidence prior to 
the issuance of a Board decision.  The veteran submitted 
additional medical evidence and it was argued it would be a 
violation of due process not to consider the new evidence.

The Board wrote to the veteran, through her attorney, in 
November 2006.  The Board acknowledged the July 2006 motion.  
The Board noted its willingness to vacate the March 29, 2006, 
decision and issue a new decision.  However, as there was a 
notice of appeal to the Court, the Board was without 
jurisdiction to act.

The Secretary submitted a motion to the Court to remand the 
Board's decision in December 2006.  The Court issued an 
order, remanding the case, in February 2007.  

The Board vacated the March 29, 2006, decision by way of a 
separate decision.  The current decision represents a re-
adjudication of the veteran's claim on appeal. 

Finally, the veteran submitted a VA outpatient treatment 
record to the Board in November 2002.  The entry was dated in 
November 2002.  The veteran was diagnosed with post-traumatic 
stress disorder (PTSD) that the examiner attributed to 
traumatic experiences the veteran had while on active duty.  
There is also a May 1999 VA hospital summary that provided a 
diagnosis of atypical depression.  The summary also noted 
that the veteran related her depression to her treatment in 
service.

The Board is adjudicating the issue of service connection for 
a dysthymic disorder on a secondary basis.  However, the 
above referenced medical records appear to raise an issue of 
service connection for a psychiatric disorder other than a 
dysthymic disorder, to include PTSD, that are directly 
related to the veteran's military service.  As the issue of 
service connection for a psychiatric disorder, to include 
PTSD, on a direct basis has not been developed or certified 
on appeal, it is referred to the RO for such further 
development as may be necessary.


FINDINGS OF FACT

1.  The veteran's current back disorder (dorsolumbar 
paravertebral myositis) first manifested years after service 
and is not related to her service or any aspect thereof.

2.  The veteran is not service-connected for any 
disabilities.  There is no basis to establish service 
connection for dysthymic disorder as secondary to a service-
connected disability.  


CONCLUSIONS OF LAW

1.  A back disability was not incurred in or aggravated by 
active military service.  38 U.S.C.A. §§ 1131, 5107(b) (West 
2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2007).

2.  The veteran's claim of entitlement to service-connection 
for dysthymic disorder, as secondary to a service-connected 
disability, lacks legal merit.  38 C.F.R. § 3.310 (2006); 
38 C.F.R. § 3.310 (2007); Allen v. Brown, 7 Vet. App. 439, 
448 (1995); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Background

The veteran served on active duty for 62 days from August 15, 
1979, to October 16, 1979.  A review of her service medical 
records (SMRs) shows that she had a pre-enlistment physical 
examination in April 1979.  She completed a Standard Form 
(SF) 93, Report of Medical History, at that time.  The only 
problem she listed was a fractured elbow at the age of 8.  
The examiner noted that there were no sequelae from the 
fracture.  The veteran listed her usual occupation as a 
policewoman.  The physical examination report itself noted 
that the veteran was found to be 7 pounds overweight.  
However, this was lined out after a later weigh-in showed her 
to have lost the weight.  A scar on the left elbow was noted.  
No other abnormalities were noted on the examination and she 
was found fit for enlistment.

The first clinical entry is dated August 16, 1979.  The 
veteran was seen for complaints of pain in both ears, and 
chest and a sore throat.  The assessment was otitis media.  A 
height check was done to confirm the veteran's height on 
August 20, 1979.  Another clinical treatment entry is dated 
September 3, 1979.  The veteran was seen for complaints of 
pain to her right ear.  She was diagnosed with pharyngitis.  
She was seen on a consult for a urinary tract infection (UTI) 
on September 10, 1979.  She was found to have trichomoniasis 
and routine cystitis.  A final clinical entry, dated 
September 12, 1979, noted continued treatment for cystitis 
and trichomoniasis infection.

The SMRs also contain a separation examination dated 
September 7, 1979.  This meant the veteran was being 
processed for discharge after only approximately three weeks 
of service.  The veteran again completed an SF 93, Report of 
Medical History.  The only "yes" answer provided to the 
multiple questions was that she had ear, nose, or throat 
trouble.  She reported that she was in good health and on 
medication for an ear infection.  She made no reference to 
any type of back pain, or treatment for complaints relating 
to her back.  She signed the form, as she had the form from 
April 1979.  The examiner noted only the treatment for the 
ear infection.  The physical examination report was negative 
for any abnormalities of the spine.  

The veteran submitted her original claim for VA disability 
compensation benefits in April 1984.  She was seeking service 
connection for unspecified ear and back conditions.  She 
reported having received treatment for both in service in 
1979.  She did not list any source of treatment after 
service.  She did report having been hospitalized at the VA 
medical (VAMC) in San Juan in April 1984.

Associated with the claims folder is a VA hospital summary 
from April 1984.  The primary diagnosis listed was chronic 
cholecystitis - cholelithiasis.  The veteran had a secondary 
diagnosis of periodontitis.  The summary stated that the 
veteran had no history of a major illness.  The veteran 
reported a history of biliary colic since 1979.  There was no 
mention of any back complaints.

The veteran was afforded a VA examination in November 1984.  
She complained of back pain extending from the mid to low 
back.  The veteran gave a history of onset around 1979 when 
she was in service.  The veteran also reported evaluation and 
treatment for her complaints in service.  Physical 
examination revealed mild to moderate dorsal and lumbar 
kyphoscoliosis.  X-ray examination revealed minimal 
spondylitic changes with osteophyte formation on the anterior 
vertebral margins.  The examination diagnosis was dorsolumbar 
paravertebral myositis.  

The veteran was also afforded a VA neurological examination 
in March 1985.  She again gave a history of back pain since 
her service in 1979.  She complained of pain on the right 
side of the lower back and said it radiated down her leg.  At 
that time, the diagnosis of dorsolumbar paravertebral 
myositis was confirmed.

The veteran underwent an electromyography (EMG) study to 
evaluate her complaints of numbness in the right leg in 
February 1985.  The EMG was reported as normal with no 
evidence of radiculopathy or neuropathy.  The neurology 
examiner noted the results were negative.  

The veteran's claim was denied in August 1985.  She sought to 
reopen her claim for her back in December 1991.  She 
submitted several lay statements from individuals that knew 
her.  The statements were essentially the same.  The 
individuals all reported that the veteran said she had no 
back problems prior to service; however, she had complained 
of back problems ever since her military service.  None of 
the statements mentioned any specific diagnosis, treatment, 
or personal knowledge of the veteran in service.  

The veteran testified at a hearing at the RO in July 1993.  
The veteran testified in detail about her health prior to 
service.  She reported that she was a policewoman with the 
Traffic Division in Caguas, Puerto Rico.  She said she was in 
perfect health when she was examined for service.  She was 
sent to Fort McClellan, Alabama, for training as a military 
policeman because of her civilian background.  She testified 
as to the strenuous activities involved in her training.  
They had to carry heavy equipment and run and walk a lot.  
The veteran said, on one occasion, she was told to bend over 
and pick up some things while she had all of her equipment 
on.  She said she felt something snap in her back and that 
her legs became stiff.  She said she could not walk.  She was 
made to carry on despite her pain.  The veteran then 
described having to clean the barracks with mops and brooms 
and that her back hurt.  She said she developed an ear ache.  
She also said they would be taken out on a road and made to 
pick up things to clean the road.  The veteran said she was 
later taken to a doctor and found to have an ear and 
"cervical" problem.  She was given pills until her 
discharge.  She said she was discharged because she could not 
meet the requirements.  

The veteran said she went to Rochester, New York, and lived 
with her sister for 6-8 months after service.  She said she 
continued to have the same back pains after her discharge 
from service.  She did not relate having any treatment in New 
York.  She did testify that she did see a Dr. Correa in a 
dispensary in Puerto Rico.  She said she did not remember the 
dates but she had attempted to get the records.  She was told 
the records had been disposed of.  The veteran never gave a 
date for her treatment.  She said she received treatment in 
the Public Health Center.  The veteran testified that she was 
not currently receiving any treatment.  She obtained 
medication for her back pain from her brother.  The veteran 
was asked about why she did not return to her civilian job.  
She said she was rejected.  She said she was not directly 
told why.  

The hearing officer questioned the veteran as to why her SMRs 
reflected no entries pertaining to treatment for her back 
complaints.  She said she did not know why the entries were 
not in her records.  She said she had ear aches, back pains, 
chest pains, and body aches and that she received 
medications.  The hearing officer also questioned the veteran 
as to why she did not report her back problems on her Report 
of Medical history from September 1979.  She said she did not 
complain about it then because she was taken to an office 
where she had to sign a lot of papers in a hurry.  She then 
said she did not remember the form.  She acknowledged the 
form she prepared at her enlistment examination.  The veteran 
said she did not remember being given the Report of Medical 
History to check the blocks of anything that bothered her at 
the time of her discharge examination.  

The veteran's representative raised the issue that the 
veteran had a hard time expressing herself in service because 
she did not speak English.  He referred to the veteran having 
tender "cervical" adenopathy and body aches in addition to 
her ear problem.  He specifically referred to the clinical 
entry of September 3, 1979.  

The Board notes that cervical adenopathy is swelling of lymph 
glands of the neck.  ZN v. Brown, 6 Vet. App. 183, 187 
(1994).  It is not a reference to a spinal condition.  

A copy of the veteran's DD 214 was received from the National 
Personnel Records Center (NPRC) after the hearing.  The 
veteran was discharged under the authority of Paragraph 5-26 
of Army Regulation 635-200.  The narrative reason for 
separation was given as erroneous enlistment.  Her separation 
code was listed as KDS.  Army Regulation 625-5-1, dated in 
April 1978, describes separation code KDS as unfulfilled or 
erroneous enlistment commitments.  The veteran was not 
discharged as a result of any medical condition.  Also the DD 
214 shows that the veteran was discharged as an E-3 and not 
an E-1 as would be expected for a new recruit that did not 
complete training.  

VA treatment records for the period from September 1993 to 
November 1994 note that the veteran was evaluated and treated 
for complaints of problems with her spine, to include the 
dorsolumbar spine.  A rehabilitative medicine consult of 
October 1993 noted that she had a 10 year history of back 
pain that was exacerbated one month earlier.  The veteran 
said that the pain started when she was on active duty from 
lifting objects from the floor and working hard.  An x-ray of 
the dorsal spine from that time was reported to show normal 
vertebral bodies and intervertebral disc spaces.  There was 
anterior spur formation observed at some vertebral levels.  
There were no paravertebral soft tissue abnormalities.  The 
diagnosis was dorsal spondylosis.  The veteran was afforded 
several physical therapy sessions.  Her primary complaint 
involved the cervical spine area.  An entry from June 1994 
noted that the veteran had myofascial pain syndrome and 
osteoarthritis.  She was said to have multiple trigger points 
with only temporary relief from her symptoms.  No neurologic 
deficit was noted.  The therapist noted that the veteran had 
electrodiagnosis (EMG) done that day that was negative.  It 
was said the veteran was having multiple somatic pains.  It 
was felt that a referral for a psychiatric evaluation was in 
order.

The veteran submitted a report from C. J. Nogueras, M.D., for 
treatment provided between July 1994 and December 1995.  The 
veteran was diagnosed with chronic depression that was listed 
as mild to moderate.  She was also noted to have evidence of 
paracervical and paralumbar muscle spasm.  

The veteran also submitted a psychiatric evaluation from R. 
Correa, M.D., dated in November 1997.  Dr. Correa stated that 
no physical limitations were observed.  He said the veteran 
walked slowly but normally.  He also said that her posture 
was somehow inflexible in the upper trunk and she said she 
had pain in the vertebrae.  Dr. Correa stated that the 
veteran's attitude was apparently depressive with signs of 
anxiety, high emotion, and anguish about her service in 1979.  
She said she was discriminated against because of her 
nationality, stature, and language.  The veteran said she was 
discriminated against during her training.  She said she was 
forced to work 12 hours a day and walk long distances while 
picking up paper from the road.  She also had to clean the 
women's section of the barracks.  The veteran said she had 
training for two weeks and then had to perform the above 
duties.  The veteran told Dr. Correa that she went to private 
clinics for her back pain within the following six months.  
Dr. Correa said that he understood the veteran's back 
condition began during her military service.  He also said 
that "we understand" that the condition of the back was 
complicated with the nervous condition and provoked a 
depressed condition that can be diagnosed as a severe chronic 
dysthymic disorder.  Finally, he said that there was a causal 
relationship between the veteran's military service and her 
physical and mental condition.

The veteran submitted a medical report from Rosa A. Coca 
Rivera, M.D., dated in September 1999.  Dr. Coca Rivera said 
that the veteran had presented with a history of back pain, 
discomfort, and imbalance since 1979.  The veteran further 
reported that she had increasing back pain that she 
attributed to the strenuous physical requirements of active 
service.  Currently, the veteran was experiencing persistent 
problems, causing her discomfort and limitation in physical 
activity and emotional problems.  The veteran was said to 
have recurrent medical and psychiatric evaluations and 
therapy.  She had also experienced a worsening condition of 
her ears that caused dizziness and added emotional burden to 
the present condition.  Dr. Coca Rivera concluded by saying 
the veteran was a middle-aged female that was limited in her 
physical activities, unable to work because of those 
limitations, and emotionally affected from her medical 
conditions.  Dr. Coca Rivera did not specifically relate the 
veteran's current back condition to service, she only 
provided a history as related to her by the veteran.  
Further, Dr. Coca Rivera did not state she had reviewed any 
other records in her examination of the veteran or in the 
preparation of her report.  Nor is there any evidence of 
record that she did so.  

Associated with the claims folder are additional VA treatment 
records for the period from May 1999 to March 2000.  The 
veteran was hospitalized for treatment of atypical depression 
in May 1999.  She also had diagnoses of chronic low back pain 
syndrome and diabetes mellitus.  The hospital summary noted 
that the veteran reported having back pain because of the 
harsh work she had to do in service.  Other records show 
treatment for depression and back pain.  There is no record 
containing an etiological opinion that relates the veteran's 
back pain to service other than by recording a history 
provided by the veteran.  

The Board denied the veteran's claim for service connection 
in April 2002.  The veteran appealed.  The Court granted a 
Joint Motion in the case and vacated the Board's decision in 
regard to the issues now on appeal.  The Board remanded the 
case for additional development in October 2003.  

The veteran submitted a VA outpatient mental health clinic 
treatment record while her case was pending before the Court.  
The entry, dated in November 2002, said that the veteran had 
severe treatment resistant PTSD from traumatic experiences 
she had during active duty.  The entry also said that the 
veteran suffered from a herniated lumbar disc with chronic 
spasm of the muscles.  This condition was worsened by her 
psychiatric symptoms as they became psychosomatic target 
organs.  The examiner did not address the basis for saying 
there was a herniated lumbar disc and no other evidence to 
demonstrate the finding was provided.

The veteran submitted another VA outpatient record to the RO 
in January 2004.  The entry was from a mental health clinic 
visit in December 2003.  The veteran was said to have an 
increase in her depressive symptoms.  She was noted to 
experience strong feelings of humiliation and feelings of 
discrimination in service relating to being forced to do 
excessive harming physical work that lead to chronic back 
pain and a chronic depressive back disorder as a consequence.

The veteran was afforded a VA psychiatric examination in 
January 2004.  The examiner noted the prior report from Dr. 
Correa as well as the May 1999 VA hospital summary.  The 
veteran gave a history of not working for the last 20 years 
because of her low back pain.  The veteran was diagnosed with 
dysthymic disorder.  The examiner said that, after reviewing 
the claims folder and taking a history from the veteran, it 
was his opinion that her dysthymic disorder was precipitated 
by the physical limitation and chronic pain from her chronic 
low back condition.  He did not address the question of 
etiology of the low back condition.

The veteran was afforded a VA orthopedic examination in 
February 2004.  At that time, the veteran reported that she 
injured her back during road marches in 1979.  She reported 
that she was treated for back problems in sick call, but did 
not recall the treatment given.  The examiner provided 
extensive findings regarding the veteran's spine examination.  
The examination revealed current physical limitations due to 
her back condition.  The diagnosis was dorsolumbar 
paravertebral myositis.  

The examiner added an opinion based on a review of the claims 
folder and the veteran's SMRS.  He noted the short period of 
active duty.  He also noted that the veteran's SMRs did not 
reflect complaints of or treatment for back problems, and 
that available medical records did not reflect complaints of 
or treatment for back problems until November 1984, years 
after the veteran's separation from service.  The examiner 
opined that "it is not at least as likely as not" that the 
veteran's current back disability was incurred in or 
aggravated by active service.  He stated that the veteran's 
degenerative joint disease (DJD) of the thoracic and lumbar 
spine, diagnosed by x-ray in 1984, was due to the natural 
process of aging.

The Board again denied service connection for the issues on 
appeal in October 2004.  The veteran's attorney submitted a 
motion to vacate the decision that same month.  The attorney 
argued that a January 2004 notice letter had not been sent to 
him.  He also argued that the case was erroneously forwarded 
to the Board without his being able to review it.  Finally, 
he stated he had been provided a copy of the claims folder by 
the Board's Freedom of Information Act (FOIA) officer in 
September 2004.  He said he needed additional time to review 
the material.

In January 2005 the Court issued an order to stay proceedings 
in the case pending the Board's decision to act on the 
veteran's attorney's motion to vacate the decision of October 
2004.  The Board informed the attorney that it was inclined 
to grant the motion to vacate the October 2004 decision in 
February 2005; however, the Board had to await the return of 
the case to have jurisdiction to do so.  The Court issued an 
order to remand the case in April 2005.  

The Board wrote to the veteran's attorney in April 2005.  He 
was apprised of the return of the case from the Court.  He 
was further informed that he had 90 days to submit additional 
evidence/argument in the case.  

The veteran's attorney responded in July 2005.  He asked for 
additional time to respond, specifically to provide medical 
evidence in response to the VA examination report from 
February 2004.  The veteran was granted additional time to 
respond in July 2005.

The veteran submitted a medical opinion from C. N. Bash, 
M.D., in September 2005.  Dr. Bash said he had reviewed the 
veteran's file and medical records in conjunction with 
preparing an independent medical opinion.  Based upon a 
review of the file, Dr. Bash concluded that the veteran's 
primary problem with regard to her back was degenerative disc 
disease (DDD), and that this disorder caused other associated 
diagnoses, including dorsolumbar paravertebral myositis.  He 
also stated that the veteran's past/present back conditions 
of DDD and associated problems of pain, spondylosis, 
myositis, and radiculopathy were caused by her service 
experiences.  He added that it was also his opinion that the 
most recent diagnosis of dorsolumbar paravertebral myositis, 
and associated radiculopathy, were also likely caused by the 
physical regimen required of the veteran during her active 
military service.

To support his opinions Dr. Bash cited to several medical 
records.  He failed to address the SMRs, and the lack of 
supporting evidence, at all.  His first reference was to the 
veteran's claim for benefits in April 1984 where she said she 
had back pain from 1979.  He then noted a number of VA and 
private records where the veteran repeated her assertion that 
she had back pain in service in 1979.  He cited to the report 
of a VA magnetic resonance imaging (MRI) study of the 
cervical spine that was done in October 2001.  He noted that 
there were mild degenerative changes in the cervical spine, 
and a small right paracentral disc herniation with minimal 
indentation on the thecal sac at the C5-C6 level.  There was 
no mention of any dorsolumbar disc problems.  

Dr. Bash said that the veteran had a current diagnosis of 
dorsolumbar paravertebral myositis.  Her medical record 
history showed a chronic and consistent complaint of low back 
pain since service in 1979.  He said the veteran had been 
given several similar yet different diagnoses.  He opined 
that the veteran suffered from DDD as her primary problem and 
that she had been given the varying diagnoses partly in 
confusion over her primary diagnosis and partly as secondary 
conditions/ manifestations of her DDD.  He said her service-
induced DDD caused her other associated diagnoses, including 
the most recent diagnosis of dorsolumbar paravertebral 
myositis.  He stated that her past and present back condition 
were all likely caused by her military service for the 
following reasons:

The veteran entered service fit for duty. 

She had chronic persistent symptoms related to her back 
since that have been documented in her records. 

She had several x-rays that continually show lumbar DDD, 
the first of which was in 1984.

The literature supported an association between 
trauma/injury to the spine early in life and then later 
in life associated development of DDD (reference to 
literature omitted).

There were no other traumas, accidents or incidents to 
her back documented in the record.

The veteran's back condition was one that resulted from 
a traumatic event, such as the rigors of basic training 
at the outset of the veteran's service.

DDD is known to cause spondylosis, pain, radiculopathy, 
and myositis, and it was his opinion that her DDD was 
causing the secondary conditions.

Finally he noted the definition of myositis and said 
that his diagnosis would be that the veteran had 
degenerative disc myositis.

Dr. Bash added that he concurred with the opinion of Dr. 
Coca-Rivera.  In addressing the February 2004 VA examiner's 
opinion, Dr. Bash stated that he disagreed with that opinion 
because the examiner did not provide documentation of his 
credentials for rendering such opinion, nor did he provide 
literature supporting his assertions.  Additionally, he 
stated that the examiner did not adequately consider the 
veteran's long standing history of back complaints.  He also 
said that the opinion did not explain the veteran's need for 
both lumbar spine x-rays and EMG during 1984/1985 or how the 
need for the tests might support the seriousness of her 
pathology at the time.  In addressing the 1984 X-ray 
examination showing the formation of osteophytes, Dr. Bash 
stated that such development was not normal for a 38-year-old 
woman, without antecedent injury.  Finally, he noted that the 
VA examiner did not provide a cause for the veteran's 
myositis and did not explain why it was not due to the DDD.

The Board remanded the veteran's claim in October 2005.  The 
same VA examiner that saw the veteran in February 2004 
reviewed the claims folder, to include the opinion from Dr. 
Bash, in December 2005.  The examiner again noted that the 
veteran's SMRs for her brief period of service were negative 
for any indication of back problems.  Her separation 
examination noted an ear problem, but was silent as to any 
recurrent back problems.  Accordingly, there was no objective 
evidence of a back condition during service.

In addressing Dr. Bash's opinion, the examiner stated that 
although the veteran alleged a history of back pain since 
service and that she received treatment for her back shortly 
after her separation from service, the record was silent for 
any evidence corroborating such allegations.  The examiner 
referred to several sources of medical literature on the 
Internet in discussing arthritis and the onset of the 
condition.  He said that there were a number of factors for 
why people develop arthritis.  He said scientists did not 
know the cause but they suspected a combination of factors to 
include being overweight, the aging process, joint injury, 
and stresses on the joints from certain jobs and sports 
activities.  He said that it was more common for men to have 
arthritis before age 45 and for women thereafter.  He noted 
the veteran was 32 in service.

The examiner added that, in the absence treatment for a back 
condition in the SMRs and for several years after service, it 
was his opinion that the veteran's DJD of the thoracic and 
lumbar spine was less likely as not related to military 
service and more likely than not associated with aging.  He 
said he could not state exactly the date of onset without 
resorting to mere speculation.  However, based on objective 
medical evidence in the claims folder it was around 1984 when 
she was diagnosed on VA examination with dorsolumbar 
paravertebral myositis and thoracic and lumbar DJD by x-ray.  

The examiner noted that the veteran had never had a computed 
tomography (CT) scan or MRI of the lumbar spine to confirm a 
diagnosis of DDD.  He noted she had had an MRI of the 
cervical spine, as reported by Dr. Bash.  This showed a 
herniated nucleus pulposis (HNP) of the cervical spine.  He 
stated that this was different in terms of disability as it 
was a different anatomical area than the lumbar spine and 
associated with different anatomical structures and nerve 
supplies.  He noted that Dr. Bash referenced the negative EMG 
study from 1985.  He said that the negative result showed 
that any later diagnosed DDD would be after service.  He also 
referred to Dr. Bash as assuming the veteran had DDD of the 
lumbar spine that caused the veteran's myositis, low back 
pain syndrome, lumbar DJD, and low back disease without 
confirmation or corroboration by CT scan or MRI.  The 
examiner referred to his cited literature, included in the 
claims folder, that a diagnosis of radiculopathy requires a 
clinical finding along with CT scan or MRI evidence that is 
positive for HNP or DDD.  Finally, the examiner repeated his 
conclusion that, in the absence of treatment for a low back 
condition from 1979 to 1984, it was more likely than not that 
the etiology was several years after service.

The veteran was issued a supplemental statement of the case 
(SSOC) in January 2006.  She responded that she had no 
additional evidence to submit and asked that the case be 
forwarded to the Board that same month.  

The veteran's attorney wrote to the Board and asked for an 
opportunity to review the claims folder in February 2006.  In 
particular he wished to review the December 2005 VA 
examination report.  He also asked for an opportunity to 
present additional evidence.  The attorney then faxed a 
letter to the Board on March 27, 2006, wherein he asked for 
additional time to submit medical evidence.  

The Board denied the veteran's claim by way of a decision 
dated March 29, 2006.  The veteran, through her attorney, 
submitted a motion for reconsideration of the decision in 
July 2006.  She also submitted another medical opinion from 
Dr. Bash, dated in April 2006.  The veteran provided a waiver 
of consideration of the evidence by the agency of original 
jurisdiction (AOJ).

Dr. Bash noted he had reviewed the claims folder and medical 
records for the veteran.  He also said he had reviewed the 
additional opinion from the VA examiner.  He said the VA 
opinion was incomplete, inaccurate, and should be discounted.  
He first took issue with the VA opinion noting there was no 
CT scan or MRI confirmation of HNP.  He said that x-ray 
findings of discogenic disease were medically acceptable 
documentation of the disease and no additional, more advanced 
tests were needed to confirm the x-ray findings.  He then 
said that the x-ray results of 1984, showing spondylotic 
changes and osteophytes, was evidence of discogenic disease.  
As to radiculopathy, Dr. Bash said there was documentation of 
pain in the veteran's legs, calf, cramps in her feet, and 
positive straight leg raise in weakness in 1999, 
paravertebral spasm in 2000, spasms, and gait disturbance in 
2002.  He said all of which was consistent with DDD.  

Dr. Bash also disputes the determination that the veteran did 
not have back trouble in service because there is no evidence 
in the record.  He said it would take years for the 
osteophytes to develop that were found in 1984.  Thus it was 
his opinion that the osteophytes were caused by the injuries 
to her spine while in service and that the intervening 5 
years allowed for the growth.  He also said the evidence did 
not show an intercurrent injury to explain the osteophytes.  
He conceded that it was remotely possible for a 37-year old 
to present with spinal osteophytes as a result of the natural 
aging process.  However, he said it was more likely than not 
that the veteran's low back and spine suffered a traumatic 
injury years earlier that resulted in her having osteophytes 
at that age.

Dr. Bash further noted that he disagreed with the VA examiner 
that, since the veteran's EMG in 1985 was negative; she did 
not have DDD or radicular disease.  He listed two reasons.  
First, the VA examiner failed to point out that the EMG was 
20 years old; and second, he failed to address the fact that 
EMG's are very inaccurate with high false negative rates or 
the fact that the EMG findings are totally dependent on the 
training of the operator.  He then cited to one source for 
the proposition that an EMG is not extremely sensitive for 
radiculopathy.  He then stated that, given the known 
inaccuracies of the veteran's EMG results in 1985, it is very 
likely that she did have DDD or radicular disease in 1985 but 
that it was not noted on the EMG.  He said it was his opinion 
that the veteran did have DDD or radicular disease in 1985 
and this was also supported by the medical records in this 
case, such as the neurology evaluation done in March 1985.  
Dr. Bash said that examination confirmed that the veteran had 
right-sided radicular pain which radiated from her back down 
to her right leg and associated with numbness.  He said the 
report also documented diminished pin-prick in the right 
lower extremity which was consistent with her x-ray findings 
of DDD/radiculopathy.  He stated that the VA examiner did not 
discuss the 1985 VA neurology examination report.

Dr. Bash also said that the VA examiner did not correctly 
interpret the literature, as he stated that this veteran was 
a female and developed arthritis at the young age of 37-38, 
while also stating that, according to his referenced 
literature, young males at 45 develop arthritis due to joint 
injuries.  He felt the VA examiner wrongly concluded that the 
veteran's arthritis was due to the natural aging process.  He 
concluded by saying the VA examiner did not explain how the 
veteran could have arthritis due to the natural aging process 
when she developed her arthritis, as documented by x-ray in 
1984, at the young age of 37-38 when the arthritis due to 
aging affected 20 percent of those older than 65.

Dr. Bash stated that he did not find any new medically 
substantial information contained in the most recent report 
by the VA examiner to warrant his changing his previous 
opinions.  He said he felt the December 2005 VA examiner's 
report was flawed for the reasons stated.  He then repeated 
essentially the same reasons for his opinions as he did at 
the time of his medical opinion in September 2005.

The Board responded to the motion for reconsideration in 
November 2006.  The veteran was informed that the Board was 
willing to vacate the decision from March 2006 upon the 
return of the case from the Court.  The Court issued an order 
that remanded the case to the Board in February 2007.  

The Board wrote to the veteran, through her attorney, 
advising of the return of the case and informing her of the 
opportunity to provide additional evidence and/or argument in 
the case in April 2007.  The veteran's attorney responded 
that same month.  The attorney noted the evidence of record 
in support of the veteran's claim and stated that it was 
sufficient to establish service connection for the benefits 
sought on appeal.  He also stated that, given the evidence in 
existence, there was no need for further evidentiary 
development with respect to her claim.  Finally, he stated 
that she waived consideration by the AOJ of any new evidence 
that may be submitted by the veteran.  

II.  Analysis

Back Disorder

In general, the law provides that service connection may be 
granted for disability resulting from disease or injury 
incurred in or aggravated by service.  38 U.S.C.A. § 1131 
(West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007).  In addition, 
certain chronic diseases, including arthritis, may be 
presumed to have been incurred during service if the disorder 
becomes manifest to a compensable degree within one year of 
separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 
(West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007).

In addition, service connection may be granted for any 
disease diagnosed after discharge, when all of the evidence, 
including that pertinent to service, establishes the disease 
was incurred in service.  38 C.F.R. § 3.303(d).  For the 
showing of chronic disease in service, there are required a 
combination of manifestations sufficient to identify a 
disease entity, and sufficient observation to establish 
chronicity at the time, as distinguished from merely isolated 
findings or a diagnosis including the word chronic.  
Continuity of symptomatology is required only where the 
condition noted during service is not, in fact, shown to be 
chronic or when the diagnosis of chronicity may be 
legitimately questioned.  When the fact of chronicity in 
service is not adequately supported, then a showing of 
continuity after discharge is required to support the claim.  
38 C.F.R. § 3.303(b).

Generally, service connection requires (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.  Hickson v. West, 12 Vet. App. 247, 253 
(1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995).

The law is clear that it is the Board's duty to assess the 
credibility and probative value of evidence, and provided 
that it offers an adequate statement of reasons or bases, the 
Board may favor one medical opinion over another.  Owens v. 
Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. 
App. 488 (1995) (the Board may adopt a particular independent 
medical expert's opinion for its reasons and bases where the 
expert has fairly considered the medical evidence of record).  
The Board, of course, is not free to reject medical evidence 
on the basis of its own unsubstantiated medical conclusions.  
Flash v. Brown, 8 Vet. App. 332 (229) (1995).

An evaluation of the probative value of a medical opinion is 
based on the medical expert's personal examination of the 
patient, the examiner's knowledge and skill in analyzing the 
data, and the medical conclusions reached.  The credibility 
and weight to be attached to such opinions are within the 
providence of the Board as adjudicators.  Guerrieri v. Brown, 
4 Vet. App. 467, 470-71 (1993).  Greater weight may be placed 
on one physician's opinion over another depending on factors 
such as reasoning employed by the physicians and the extent 
to which they reviewed prior clinical records and other 
evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  
The probative value of a medical opinion is generally based 
on the scope of the examination or review, as well as the 
relative merits of the expert's qualification and analytical 
finding, and the probative weight of a medical opinion may be 
reduced if the examiner fails to explain the basis for an 
opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993).  The Court 
has held that the value of a physician's statement is 
dependent, in part, upon the extent to which it reflects 
"clinical data or other rationale to support his opinion."  
Bloom v. West, 12 Vet. App. 185, 187 (1999).  Thus, a medical 
opinion is inadequate when it is unsupported by clinical 
evidence.  Black v. Brown, 5 Vet. App. 177, 180 (1995). 

The Board acknowledges the qualifications of Dr. Bash to 
offer his medical opinions in this case.  The Board also 
finds that the VA examiner, that provided opinions in 
February 2004 and December 2005, is also competent to provide 
those medical opinions.  See Cox v. Nicholson, 20 Vet. App. 
563 (2007).  

The veteran alleges that she suffered a back injury during 
her 62 days of active service that is the direct cause of her 
current back pain and the several diagnoses of back 
disorders.  She said this was the result of the harsh and 
demanding training she performed.  The veteran's SMRs are 
totally devoid of any indication of complaints or treatment 
for a back-related condition.  The veteran was seen in sick 
call on her second day of active duty for complaints 
unrelated to the issues on appeal.  She was evaluated on a 
number of other days for the same, and other unrelated 
complaints.  She completed a Report of Medical History at the 
time of her separation examination and failed to indicate any 
problems with her back.  She did note that she had had ear 
problems and the SMRs document such treatment.  The SMRs 
dated after the discharge physical examination noted no back 
problems.

The Board notes that the veteran was being processed for 
discharge approximately three weeks after reporting for 
active duty, as evidenced by the date of her discharge 
physical examination.  Her training regimen was extremely 
limited at that time and it is reasonable to conclude that no 
additional training was involved once the decision was made 
to discharge her.  Given the several entries in the SMRs 
showing treatment for routine complaints it is reasonable to 
conclude that the veteran would have received treatment for 
any back-related complaints and that they would be reflected 
in the SMRs.  Especially if she suffered a traumatic injury 
to her back as presumed by Dr. Bash.  

The veteran was queried about her lack of reporting a back 
problem in service at the time of her hearing in July 1993.  
She could not explain her lack of reporting of a back 
problem.  Nor could she provide any dates of treatment after 
service.

The veteran first sought service connection for a back 
disorder in 1984.  She did not identify any prior source of 
treatment other than her alleged treatment in service.  The 
VA hospital summary from April 1984 did not record a back 
disorder as a condition and no treatment for one was 
provided.

Although x-rays of the lower thoracic and lumbar spine from 
the November 1984 VA examination showed minimal spondylitic 
changes with osteophyte formation on anterior vertebral 
margins, the examiner did not relate those findings to the 
veteran's military service.  Nor did the examiner relate the 
diagnosis of dorsolumbar paravertebral myositis to service.  

The March 1985 VA neurology examination reported moderate 
spasms over the lumbar paravertebral muscles with tenderness 
to palpation; however, the veteran had a full range of motion 
and straight leg raising was negative.  The examiner noted 
some diminished pinprick over the internal aspect of the 
lower third of the right lower extremity.  An EMG, done in 
February 1985, found no evidence of radiculopathy or 
neuropathy.  The VA neurology examiner noted they had checked 
the EMG results on the examination report.  Again, none of 
the findings of the examination were related to the veteran's 
military service.  

The veteran's claim was denied in August 1985.  She attempted 
to reopen the claim in December 1991 by providing a number of 
lay statements from individuals that all repeated her 
assertion of being in good health before service but 
suffering from back pain since her discharge in 1979.  All of 
the statements were from 12 years after the veteran's period 
of service.  None of the statements noted specifics such as 
personal knowledge of the veteran being injured in service.  
They all said that her condition was getting worse.  However, 
none of the statements indicated that the veteran received 
treatment for her back complaints in the intervening years.  
Further, none of the individuals identified themselves as a 
medical professional and qualified to relate the veteran's 
complaints to her military service.  

The veteran testified at her hearing in 1993 that she was not 
receiving treatment.  She alluded to having had some 
treatment after service but that the records were 
unavailable.  She said she had tried to get treatment at VA 
but was turned down; however, the records show she did 
receive surgical services in 1984.  There is no evidence, 
other than the veteran's assertion, that she could not have 
received treatment for her back complaints from VA from 1979 
to 1993.  The credibility of the veteran's statement is 
lessened by the fact that she did receive VA treatment in 
1984 and again in 1993 and beyond.  

The VA records from September 1993 to November 1994 show that 
the veteran underwent extensive treatment and evaluation by 
the rehabilitative medicine department.  The records show her 
primary complaint involved the cervical spine area and 
muscles of the upper back.  There was little mention of her 
lower back.  She received diagnoses of DJD and myositis, but 
neither diagnosis was related to her military service.  A 
June 1994 entry reported that a cervical EMG was negative and 
the report verifies it was negative for left cervical 
radiculopathy.  The entry further noted that the veteran had 
many somatic complaints with negative studies and that a 
psychiatric evaluation was recommended.  

The report from Dr. Nogueras provided a psychiatric diagnosis 
of depression and of muscle spasms of the paracervical and 
paralumbar spine.  However, he did not provide an opinion as 
to the etiology of the depression or the muscle spasms.  
Dr. Correa provided a diagnosis of a dysthymic disorder.  He 
also noted the veteran's self-reported history of back pain 
since service.  He did not point to any evidence, other than 
the veteran's own history, to support a conclusion that the 
veteran suffered from any back pain in service or that her 
current back pain was related to service and that the 
dysthymic disorder was related to the back pain.  See Swann 
v. Brown, 5 Vet. App. 229, 233 (1993); (medical opinion based 
solely or in large measure on a veteran's reported medical 
history will not be probative to disposition of claim if the 
objective evidence does not corroborate the reported medical 
history); see also Reonal v. Brown, 5 Vet. App. 458, 460-461 
(1993).  In this case, the objective evidence clearly does 
not support the veteran's reported medical history in 
service.  One aspect of Dr. Correa's report is of note and 
that is the veteran's history that her training lasted for 
two weeks and then she had to perform the cleaning tasks she 
recounted.  

The report from Dr. Coca-Rivera is of little probative value.  
It is based entirely on the veteran's reported history of 
having suffered a back injury in service.  An event not 
documented in the SMRs, not supported by treatment records 
prior to her claim in 1984, nor demonstrated by competent lay 
evidence.  Dr. Coca-Rivera really did not address the 
etiology of the veteran's current medical condition.  She 
noted the history as related by the veteran and said the 
veteran had a persistent problem with her back.  She then 
detailed how the current symptoms affected the veteran's 
ability to function.  

None of the later VA treatment records provide a nexus 
opinion between the veteran's current back 
complaints/diagnoses and her military service.  An entry from 
December 2003 noted that the veteran had feelings of 
humiliation and discrimination based on her perception of 
being forced to perform excessively harmful physical work 
that lead to chronic back pain. 

The VA examiner from February 2004 noted the absence of any 
treatment for back-related complaints in service, and in the 
several years after service.  He noted that DJD was diagnosed 
on x-ray at the time of the veteran's VA examination in 
November 1984, five years after service.  He opined that the 
veteran's dorsolumbar paraverterbral myositis was not at 
least as likely incurred or aggravated during service.  He 
attributed her DJD to the natural process of aging.

In regard to the September 2005 opinion from Dr. Bash the 
Board notes that he bases his entire opinion, and his second 
opinion from April 2006, on the assumption that the veteran 
suffered a traumatic back injury in service.  He has not 
identified any objective evidence to document such an event, 
rather he relies on circumstantial evidence to reach his 
assumption.  In particular he says the veteran's back 
disorder was likely caused by the physical regimen that was 
required during her service.  He has no factual basis to 
assess the physical regimen experienced by the veteran.  The 
objective and uncontroverted evidence of record demonstrates 
she was being processed for discharge at least within 22 days 
of entering active duty, if not earlier.  Given that her 
physical was conducted on September 7th, it is reasonable to 
conclude that the decision to discharge her had been made 
even sooner.  The report from Dr. Correa indicates she had 
two weeks of training before being assigned other duties.

Dr. Bash failed to address the SMRs at all other than the 
entrance physical examination report.  He does not explain 
how the veteran suffered a traumatic injury that went without 
treatment in service.  Dr. Bash states that the results shown 
on the x-rays from November 1984 had to have been caused by a 
back injury.  He disputes the VA examiner's opinion that the 
arthritis was due to aging, although he conceded it was a 
possibility.  However, other than resorting to speculation, 
Dr. Bash cannot reasonably state that the back injury that 
may have caused the arthritis, or DDD, noted on the x-rays 
occurred during the veteran's 62 days of military service.  

As noted previously, the veteran did not attend basic 
training.  She reported for specialized training at Fort 
McClellan.  This is evidenced by her higher paygrade of E-3 
on discharge after only two months of service.  She was 
removed from the training program, for nonmedical reasons, 
within 2-3 weeks.  There is no evidence of the traumatic 
injury assumed by Dr. Bash.  See Wilson v. Derwinski, 2 Vet. 
App. 614, 618 (1992) (Board must evaluate the credibility and 
weight of the history upon which medical opinion is 
predicated).  

The VA examiner reviewed the records again in December 2005 
and considered the opinion of Dr. Bash.  He concluded that 
the evidence of record did not show a back disorder until 
1984.  He cited to, and included, medical literature that 
addressed the etiology of arthritis in individuals.  The 
examiner repeated his assertion that the veteran's back 
disorder was not related to her military service.  He also 
said that the arthritis was due to the aging process.  

Dr. Bash again took issue with the VA examiner's conclusions 
in April 2006.  He repeated his prior reasons for why he felt 
the veteran suffered a traumatic injury in service and that 
all of the resulting back diagnoses flowed from that injury.  
He also repeated his prior assertion that the evidence of 
record did not show an intercurrent injury to account for the 
findings on the x-rays from November 1984.

However, as with his earlier opinion Dr. Bash did not address 
the lack of evidence in service.  Nor did he provide any 
basis for his conclusion that the veteran had a traumatic 
back injury in service other than to assume that the injury 
occurred based on what he perceived her training regimen to 
be.  He never related that he had discussed the injury with 
the veteran, discussed her training with her, or discussed 
the details of any injury with her.  Rather, his opinion is 
based on speculation on what he thinks occurred.  There is no 
factual predicate in the record to establish that a back 
injury occurred during service.  See Miller v. Brown, 11 Vet. 
App. 345, 348 (1998).

The Board has considered the lay statements of the veteran 
and those she has submitted in support of her claim.  In 
general, the veteran asserts she developed back pain because 
of the work she was required to do in service.  She has 
particularly complained of this in her psychiatric 
evaluations with Dr. Correa, and VA.  She made reference to 
one instance where she said she felt back pain while bending 
over to pick something up at the time of her hearing in July 
1993.  She did not provide any other examples of a specific 
injury to her back after that.  She gave generalized 
descriptions of having back pain owing to the long walks 
along a road and picking up things and cleaning.  

The several lay statements she submitted in 1992 clearly are 
written to support her statement of having had back pain 
since 1979.  However, the statements do not address a back 
injury in service.  They do not say that the veteran 
complained of an injury in service, only that she complained 
of back pain and continued to do so.

The veteran is competent to provide evidence of her 
complaints of back pain.  See Layno v. Brown, 6 Vet. App. 
465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 
1331, 1336 (Fed. Cir. 2006).  However, the veteran, is not 
competent to relate any current diagnosis to her service.  
See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also 
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007) (holding 
that a layperson may provide competent evidence to establish 
a diagnosis where the lay person is "competent to identify 
the medical condition").

The Board has weighed all of the evidence of record, 
specifically the SMRs, the VA and private treatment records, 
the several VA examination reports and private medical 
opinions.  The Board's task, when there is medical evidence 
in the record on appeal that indicates different conclusions, 
is to determine the issue by weighing and balancing all the 
evidence of record.  The Board must independently assess the 
quality of the evidence before it.  Madden v. Gober, 125 
F.3d. 1477, 1481 (Fed. Cir. 1997).  It is in that light that 
the Board finds the February 2004 and December 2005 opinions 
from the VA examiner to be of greater weight than the 
opinions provided by Dr. Bash.  The VA examiner provided a 
longitudinal review of the evidence of record.  He noted the 
lack of treatment in service and after service.  He addressed 
the first evidence of a back disorder presented by the 
veteran in 1984.  The examiner considered the veteran's 
statements of pain in service but concluded that her 
arthritis, as demonstrated on x-ray in November 1984, was 
unrelated to service.  

By contrast, Dr. Bash went into great detail as to the 
significance of the finding of arthritis in November 1984.  
He opined that this was actually evidence of DDD and that the 
disease could only come from an antecedent injury.  His 
entire opinion rests on that principal.  Unfortunately, he 
has no evidence of the antecedent injury, at least one that 
occurred during the veteran's limited period of service.  He 
assumed the occurrence of the injury based on the veteran 
being in service without any further support or 
substantiation.  

The other medical records that list a history of back pain 
since 1979 are all based on the veteran's statements.  None 
of the examiners provided any further analysis or explanation 
to address why a current finding of a back disorder would be 
related to back pain in service.  See LeShore v. Brown, 8 
Vet. App. 406, 409 (1995) (A bare transcription of a lay 
history is not transformed into competent medical evidence 
merely because the transcriber happens to be a medical 
professional).

When all of the evidence is assembled, the Board is 
responsible for determining whether the evidence supports the 
claim or is in relative equipoise, with the veteran 
prevailing in either event, or whether a fair preponderance 
of the evidence is against the claim, in which case the claim 
is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) 
38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007).  
The clear preponderance of the evidence shows that the 
veteran's claimed back disorder is not related to service, it 
was not manifest to a compensable degree within one year 
after service, and that service connection is not warranted.  

Dysthymic Disorder

The veteran is seeking entitlement to service connection for 
dysthymic disorder as secondary to a service connected 
disability, specifically a back disability.  A disability is 
service connected if it is proximately due to or the result 
of a service-connected disease or injury.  38 C.F.R. § 
3.310(a) (2006).  Moreover, when aggravation of a nonservice-
connected condition is proximately due to or the result of a 
service-connected condition, such veteran shall be 
compensated for the degree of disability over and above the 
degree of disability existing prior to the aggravation.  
Allen v. Brown, 7 Vet. App. 439, 448 (1995).

The regulation addressing service connection for disabilities 
on a secondary basis, 38 C.F.R. § 3.310, was amended in 
September 2006.  See 71 Fed. Reg. 52,744-52,747 (Sept. 7, 
2006), effective October 10, 2006.  The change was made to 
conform VA regulations to decisions from the United States 
Court of Appeals for Veterans Claims (Court), specifically 
Allen.  However, given the disposition of this issue, the 
change in regulation is no consequence.  

The Board notes that secondary service connection presupposes 
the existence of an established service-connected disability.  
In this case, neither a back disability, nor any other 
disability, is currently service-connected.  Thus, there can 
be no secondary service connection for any condition 
allegedly due to a service-connected disability.

Where application of the law to the facts is dispositive, the 
appeal must be terminated because there is no entitlement 
under the law to the benefit sought.  See Sabonis v. Brown, 6 
Vet. App. at 426, 430 (1994).  As there is no legal basis for 
an award of secondary service connection for a dysthymic 
disorder, the claim must be denied as a matter of law.  Id.

Notice and Duty to Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), 
and the pertinent implementing regulation, codified at 38 
C.F.R. § 3.159 (2007), provides that VA will assist a 
claimant in obtaining evidence necessary to substantiate a 
claim.  They also require VA to notify the claimant and the 
claimant's representative, if any, of any information, and 
any medical or lay evidence, not previously provided to the 
Secretary that is necessary to substantiate the claim.  As 
part of the notice, VA is to specifically inform the claimant 
and the claimant's representative, if any, of which portion, 
if any, of the evidence is to be provided by the claimant and 
which part, if any, VA will attempt to obtain on behalf of 
the claimant.  In addition, VA must also request that the 
claimant provide any evidence in the claimant's possession 
that pertains to the claim.

The Board notes that during the pendency of this appeal the 
Court, issued a decision in the consolidated appeal of 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 
held that the VCAA notice requirements of 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements 
of a service connection claim.  Those five elements include: 
1) veteran status; 2) existence of a disability; (3) a 
connection between the appellant's service and the 
disability; 4) degree of disability; and 5) effective date of 
the disability.

In the present case, the veteran's claim was received in 
August 1998, prior to the enactment of the VCAA.  The initial 
unfavorable denial of her claim occurred with the rating 
decision of November 1998.  The veteran appealed that denial 
and the claim has remained pending since that time.  

The RO wrote to the veteran in September 2001.  The veteran 
was informed of the evidence needed to substantiate her claim 
for service connection.  She was also given an explanation of 
what evidence would help to support her claim.

The Board denied the veteran's claim in April 2002.  The 
decision was vacated and remanded by the Court.  The Board 
remanded the case for additional development in October 2003. 

The RO wrote to the veteran in January 2004.  The veteran was 
informed of the evidence needed to substantiate her claim for 
service connection.  She was also given an explanation of 
what evidence the veteran was to provide to VA in support of 
her claim and what evidence VA would attempt to obtain on her 
behalf.  The letter also asked the veteran to send the 
evidence/information requested as soon as she could.

The RO issued a supplemental statement of the case (SSOC) 
that continued the denial of the claim and the case was 
returned to the Board.  The Board again denied the claim in 
October 2004.  

The veteran, through her attorney, sought to have the 
decision vacated on due process grounds.  The Court vacated 
the decision and returned the case to the Board in April 
2005.  The case was remanded for additional development in 
October 2005.  

The RO conducted the additional development and issued an 
SSOC in January 2006.  The case was returned to the Board 
where the claim was again denied in March 2006.

The veteran, through her attorney, again sought to have the 
Board decision vacated.  They submitted additional evidence 
in support of the claim in July 2006.  The case was returned 
from the Court in February 2007.  The Board vacated the March 
2006 decision.  

The attorney submitted a letter in April 2007 wherein he 
reviewed the issues on appeal, the history of the case, and 
the submission of three medical opinions in support of the 
claim.  The attorney stated that there was sufficient 
evidence of record to grant the claim and that no further 
development was necessary. 

The veteran has not alleged that she has been prejudiced by 
the lack of notice of how to establish service connection.  
Further, she has been represented by an attorney before VA 
from 2002 to the present.  She also has been represented by 
that attorney before the Court since 2002.  The veteran, 
through her attorney, has presented argument for why she is 
entitled to service connection.  

In the present appeal, the veteran was provided with notice 
of what type of information and evidence was needed to 
substantiate her claim for service connection.  She was also 
informed of her and VA's responsibilities in the development 
of her claim.  She was not told to submit any evidence in her 
possession.  Nor was the veteran provided with the notice 
addressed by the Court in Dingess.  The Board finds that any 
deficiency in the timing of the notice, or content, is 
harmless error in light of the multiple readjudications of 
the claim.  See Overton v. Nicholson, 20 Vet. App. 427, 435 
(2006).  

Moreover, the presumption of prejudice on the VA's part has 
been rebutted in this case by the following: (1) the veteran 
clearly has actual knowledge of the evidence she is required 
to submit in this case based on the communications sent to 
the veteran over the course of this appeal; and (2) based on 
the veteran's contentions and the communications provided to 
the veteran by the VA over the course of this appeal, she is 
found to be reasonably expected to understand from the 
notices provided what was needed.  Further, the veteran has 
been represented by an attorney since 2002 that has submitted 
both evidence and argument in support of the claim.  

As the Board concludes that the preponderance of the evidence 
is against the veteran's claim for service connection any 
questions as to the appropriate disability rating or 
effective date to be assigned are rendered moot.  The Board 
finds no prejudice to the veteran in proceeding with the 
issuance of a final decision.  See Bernard v. Brown, 4 Vet. 
App. 384, 394 (1993). 

All available evidence pertaining to the veteran's claim has 
been obtained.  The claims folder contains the veteran's 
SMRs, private and VA medical records, VA examination reports, 
statements and records submitted by the veteran, and medical 
opinions submitted by the veteran.  The case has been 
remanded on several occasions to allow for additional 
development of the record and the veteran has submitted 
additional evidence/argument on those occasions.  

The Board finds that VA has satisfied its duty to notify and 
assist.  All obtainable evidence identified by the veteran 
relative to her claim has been obtained and associated with 
the claims folder, and she has not identified any other 
pertinent evidence, not already of record, which would need 
to be obtained for a fair disposition of this appeal.  The 
Board is also unaware of any such evidence.  Finally, the 
veteran, through her attorney, stated that there was no need 
for additional development for evidence in the case.


ORDER

Service connection for a back disability is denied.

Service connection for a dysthymic disorder, secondary to a 
service-connected disability is denied.



____________________________________________
ROBERT C. SCHARNBERGER
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs