Citation Nr: 0809760 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 04-37 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD B. Adams, Associate Counsel INTRODUCTION The veteran served on active duty from December 1960 to September 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2006, the veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. In January 2007, the Board remanded this case for further development. The requested development was completed, and the case has been returned to the Board for further appellate consideration. The Board notes that the veteran submitted new evidence in October 2007. Through his representative, he waived his right to have this evidence initially considered by the originating agency. The record reflects that the veteran was diagnosed with myositis ossificans of the right lower extremity at a March 2003 VA examination and that an August 2007 VA examiner related this disability to the veteran's military service. In addition, an October 2004 VA outpatient treatment record indicates that the veteran has right sciatica, and his service medical records reflect that he sustained an injury to his sciatic nerve in October 1961. In the Board's opinion, the record raises the issues of entitlement to service connection for myositis ossificans of the right lower extremity and service connection for right sciatica. These claims are referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran does not have a right hip disability. 2. A chronic low back disability was not present within one year after the veteran's discharge from service, and the veteran's current low back disability is not etiologically related to service. CONCLUSIONS OF LAW 1. A right hip disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 2. A low back disability was not incurred in or aggravated by active service, and the incurrence or aggravation of arthritis of the low back during such service may not be presumed. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 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), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the 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 also must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the veteran was provided with the notice required under the VCAA, to include notice that he submit any pertinent evidence in his possession, by letter mailed in February 2005. A letter mailed in September 2006 provided him with notice regarding the initial-disability rating and effective-date elements of his claims. Although these letters were sent after the initial adjudication of the claims, the Board has determined that there is no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined service connection is not warranted for the veteran's right hip or low back disability. Consequently, no effective date or disability rating will be assigned, so the failure to provide timely notice with respect to those elements of the claims is no more than harmless error. Moreover, following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the veteran's claims in September 2007. There is no reason to believe that the ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. The Board notes that service medical records and pertinent VA and private medical records have been obtained. The veteran also has been afforded VA examinations. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the veteran. Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. Analysis The veteran contends that service connection is warranted for a right hip disability and a low back disability because they are related to active duty. Specifically, he maintains that these disabilities were incurred or aggravated when he fell down a flight of stairs in October 1962. Right Hip Disability The preponderance of the medical evidence establishes that the veteran does not currently have a right hip disability. VA outpatient treatment records dated in February 2004 include an impression of right hip degenerative joint disease (DJD) and an initial diagnostic impression of rule-out right hip pathology. No definitive or clear diagnosis of a hip disorder was rendered at that time. In addition, although subsequent records dated in August 2004 and May 2006 include assessments of right hip pain, they contain no diagnosis of a right hip disability. The report of an August 2007 VA examination confirms that the veteran does not have a current right hip disability. A contemporaneous X-ray study revealed that there were no bone or joint abnormalities in the veteran's right hip and that the soft tissues were unremarkable. After performing a physical examination and reviewing the available medical records, the VA examiner diagnosed a normal right hip. The Board notes that the August 2007 VA examiner also diagnosed a history of slipped capital epiphysis hip based on his review of the veteran's service medical records. However, no current diagnosis of a right hip disability pertaining to slipped capital epiphysis hip was rendered. The examiner pointed out that this disorder does not occur in adulthood because the growth plates have already closed. The Board acknowledges the veteran's complaints of long- standing pain in his right hip. However, pain alone, without a diagnosis of an underlying disorder, cannot be service- connected. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); see also, Brammer v. Derwinski, 3 Vet. App. 223 (1992). Since the preponderance of the medical evidence demonstrates that the veteran does not have a current right hip disability, his claim for service connection must be denied. Low Back Disability Service medical records show that the veteran reported no complaint and received no medical treatment related to his low back in service. A September 1963 report of medical examination performed prior to his release from active duty notes no low back problems. The first diagnosis of a low back disability was rendered at a March 2003 VA examination. An X-ray study revealed mild to moderate osteoarthritis of the vertebrae and degenerative changes of the facets. The veteran subsequently was diagnosed with chronic lower back pain, secondary to degenerative joint disease and leg length discrepancy, in an October 2004 VA outpatient treatment record. Additional VA outpatient treatment records and a November 2004 private physical therapy record include numerous assessments of chronic low back pain. Pursuant to the Board's January 2007 remand instructions, the veteran was afforded a VA examination in August 2007 to determine the nature and of etiology of his low back disability. Based on the results of a physical examination and an X-ray study, the examiner diagnosed disc disease at L3-L4, mild to moderate osteoarthritis of the vertebrae, and degenerative changes of the facets. The examiner was asked to state an opinion with respect to medical nexus and opined that it was less likely as not that the diagnosed disabilities were related to service. He explained that there was no evidence of complaints or treatment related to a back condition during active duty or after the veteran's release from active duty. There is no medical opinion of record that refutes the VA examiner's opinion, although the veteran repeatedly has expressed his belief that his current low back disability is related to his in-service fall. He argued in the October 2004 substantive appeal that his low back disability was misdiagnosed as a right hip disability in service. He also testified in October 2006 that his private doctor diagnosed arthritis of the lower back between six and 12 months after his release from active duty and related this condition to service. However, the veteran acknowledged at the October 2006 hearing that medical records from his private physician are unavailable and that there are no other medical evidence to support an earlier diagnosis of a low back disability. Moreover, despite his belief that his low back disability was misdiagnosed in service, the veteran, a lay person with no medical training, is not qualified to render an opinion concerning medical diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The veteran also argued at the October 2006 hearing and in March 2004 and October 2007 statements that his back was normal before he fell in service and that he has experienced chronic and increasing back pain since the fall. The Board acknowledges that the veteran is competent to report observable symptomatology, such as his chronic low back pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, these statements do not constitute competent medical nexus evidence that could refute the opinion of the VA examiner because they are offered by a lay person with no medical training who is not qualified to render an opinion concerning medical causation. See, again, Espiritu, 2 Vet. App. at 494. While the veteran clearly has a current low back disability, there is no competent medical evidence of such a disability until 2003, approximately four decades after service. As noted above, there is no medical evidence of record that could be used to establish an earlier diagnosis of a low back disability or that contradicts the VA examiner's opinion that it is less likely than not that his disability is related to service. Accordingly, the Board concludes that a preponderance of the evidence weighs against this claim and that service connection for a low back disability is not warranted. ORDER Service connection for a right hip disability is denied. Service connection for a low back disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs