Citation Nr: 0810488 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 02-20 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to a service-connected disability. 2. Entitlement to service connection for a bilateral hip disorder, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Jessica J. Wills, Associate Counsel INTRODUCTION The veteran served on active duty from May 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the benefits sought on appeal. The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. The Board remanded the case for further development in August 2004 and July 2007. That development was completed, and the case has since been returned to the Board for appellate review. A hearing was held on May 10, 2004, before a Veterans Law Judge (VLJ), in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2). A transcript of the hearing testimony is in the claims file. A letter was sent to the veteran in May 2007 in which he was informed that the Veterans Law Judge who had conducted that hearing was no longer employed by the Board. The letter stated that the law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. The veteran was further notified that he had a right to another hearing, and it was requested that he complete and return a form indicating whether he wished to have another hearing, and if so, what type of hearing. However, the veteran completed and returned the form that same month indicating that he did not wish to appear at another hearing. Therefore, the Board will proceed with a decision in this case. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran has not been shown to have a low back disorder that is causally or etiologically related to military service or to a service-connected disorder. 3. The veteran has not been shown to have a bilateral hip disorder that is causally or etiologically related to military service or to a service-connected disorder. CONCLUSIONS OF LAW 1. A low back disorder was not incurred in active service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2007). 2. A bilateral hip disorder was not incurred in active service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the RO did provide the appellant with notice in October 2001, prior to the initial decision on the claims in December 2001, as well as in March 2006, August 2006, and August 2007. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the veteran in the notice letters about the information and evidence that is necessary to substantiate his claims for service connection. Specifically, the October 2001 and March 2005 letters stated that in order to establish service connection the evidence must show that he had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. The March 2005 letter also indicated that establishing service connection on a secondary basis requires evidence of the claimed physical or mental condition and a relationship between the claimed condition and the service- connected condition. Additionally, the November 2002 statement of the case (SOC) and the January 2003, December 2006, and November 2007 supplemental statements of the case (SSOC) notified the veteran of the reasons for the denial of his application and, in so doing, informed him of the evidence that was needed to substantiate his claims. In addition, the RO notified the veteran in the notice letters about the information and evidence that VA will seek to provide. In particular, the October 2001 and March 2005 letters indicated that reasonable efforts would be made to help him obtain evidence necessary to support his claims, including requesting all records held by Federal agencies, such as service medical records, military records, and VA medical records. The veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claims. The RO also informed the veteran about the information and evidence that he was expected to provide. Specifically, the October 2001 and March 2005 letters notified the veteran that he must provide enough information about his records so that they could be requested from the agency or person that has them. The letters also requested that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that he would like VA to obtain on his behalf. In addition, the October 2001 and March 2005 letters indicated that it was the veteran's responsibility to ensure that VA receives all requested records that are not in the possession of a Federal department or agency. Finally, the March 2005 letter specifically notified the claimant that he should provide any evidence or information in his possession that pertains to the claims. Because each of the four notice requirements has been fully satisfied in this case, any error in not providing a single notice to the appellant covering all the requirements is harmless error. Further, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above, 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 veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective date for the disability on appeal. In this regard, the Board notes that the August 2006 and August 2007 letters informed him that a disability rating was assigned when a disability was determined to be service- connected and that such a rating could be changed if there were changes in his condition. The letters also explained how disability ratings and effective dates were determined. In addition, the duty to assist the veteran has also been satisfied in this case. The veteran's service medical records as well as all available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the veteran's claims. The veteran was also afforded VA examinations in October 2001, October 2006, and October 2007, and he was provided the opportunity to testify at a hearing before the Board. VA has further assisted the veteran and his representative throughout the course of this appeal by providing them with a SOC and SSOCs, which informed them of the laws and regulations relevant to the veteran's claims. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the veteran is not entitled to service connection for a low back disorder and for a bilateral hip disorder. The veteran's service medical records are negative for any complaints, treatment, or diagnosis of either disorder. Moreover, the medical evidence of record does not show that the veteran sought treatment for a low back disorder or for a bilateral hip disorder immediately following his period of service or for many years thereafter. Therefore, the Board finds that a low back disorder and a bilateral hip disorder did not manifest in service or for many years thereafter. With regard to the decades-long evidentiary gap in this case between active service and the earliest manifestations of a low back disorder and a bilateral hip disorder, the Board notes that this absence of evidence constitutes negative evidence tending to disprove the claim that the veteran had an injury or disease in service which resulted in chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the lack of any objective evidence of continuing complaints, symptoms, or findings for many years between the period of active duty and the first symptoms of a low back disorder and a bilateral hip disorder is itself evidence which tends to show that the disorders did not have their onset in service or for many years thereafter. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). In addition to the lack of evidence showing that a low back disorder and a bilateral hip disorder manifested during service or within close proximity thereto, the medical evidence of record does not link the veteran's current disorders to his military service. As noted above, the medical evidence does not show that there was an event, disease, or injury in service to which a current low back disorder or bilateral hip disorder could be related. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). Nor is there is any medical evidence of record that links any current disorder to a disease or injury in service. In fact, the October 207 VA examiner stated that the veteran's problems were ubiquitous in his age range and indicated that it was not at least as likely as not that his low back and bilateral hip disorder were causally related to service. Moreover, the veteran has not even alleged that his low back disorder or bilateral hip disorder is directly related to service, as he has instead claimed that the disorders are secondary to his service- connected disabilities. Therefore, the Board finds that a low back disorder and a bilateral hip disorder did not manifest during service and have not been shown to be causally or etiologically to an event, disease, or injury in service. As to the veteran's claim that his low back disorder and bilateral hip disorder are related to a service-connected disability, the Board also finds that the medical evidence of record does not support this contention. The veteran has a current diagnosis of a low back disorder and a bilateral hip disorder, and he is service-connected for shell fragment wounds of the right leg muscle groups XI and XIII, posttraumatic stress disorder (PTSD), shell fragment wounds of the right leg with residual phlebitis, shell fragment wounds of the right leg with sensory impairment of the superficial peroneal nerve, tinnitus, shell fragment wounds of the right thigh and left leg, shell fragment wound scars of the right hand, and a healed shell fragment wound scar of the scalp. However, the medical evidence has not established a relationship between these disorders. In fact, the October 2007 VA examiner noted that degenerative spine and hip disease were very common in middle age, especially in the overweight population, and stated that there was no relationship between the veteran's current disorders and his multiple service-connected disabilities. The examiner also commented that the injuries must have altered the veteran's gait to put excessive strain on the hips or spine and stated that there was no such evidence. Simply put, the evidence absent from the record is a medical opinion to the effect that the veteran's service-connected disabilities either caused or aggravated his low back disorder and bilateral hip disorder. Accordingly, service connection cannot be granted on a secondary basis. Therefore, the Board finds that the preponderance of the evidence is against the veteran's claims for service connection for a low back disorder and a bilateral hip disorder. Because the preponderance of the evidence is against the veteran's claims, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a low back disorder and for a bilateral hip disorder is not warranted. ORDER Service connection for a low back disorder is denied. Service connection for a bilateral hip disorder is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs