Citation Nr: 0811328 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-28 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right leg disability. 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The veteran served on active duty from August 1961 to July 1963, and from January 1964 to September 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Houston, Texas, Department of Veterans Affairs (VA), which denied the claim of entitlement to service connection for a right leg disability and a back disability. In June 2007, the Board remanded the appeal to the RO to obtain additional evidentiary development. The requested development has been completed and the case has been returned to the Board for appellate review. FINDINGS OF FACT 1. Competent medical evidence of a current right leg disability is not of record, or in the alternative, competent evidence of a nexus between a claimed right leg disability and active military service is not of record. 2. Competent evidence of a nexus between a back disability and active military service is not of record. CONCLUSIONS OF LAW 1. A right leg disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303 (2007). 2. A low back disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Pertinent Law and Regulations In order to establish service connection, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic disability in service or during an applicable presumptive period and still has such disability. Such evidence must be medical unless it relates to a disability as to which, under the United States Court of Appeals for Veterans Claims' (Court's) case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a disability noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2007). In order to prevail on the issue of service connection there must be (1) medical evidence of a current disability; (2) medical evidence or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative balance, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C.A. § 5107(b) (West 2002). II. Analysis Right Leg The veteran asserts that he was injured in service trying to stop a forklift from falling. The veteran says he fell injuring his right leg and back when a piece from the forklift caught on his leg causing him to fall. The veteran proffers that since this incident, his back and right leg have been bothering him and these injuries still persist. The veteran attributes his current back and leg pain to his military service. A review of the veteran's service medical records shows evidence of the veteran's injury while in service. September 1965 records show that the veteran was involved in an accident aboard a ship. He was prescribed bed rest for two days due to multiple abrasions and contusions to the right knee. After two days, his knee was bandaged and he was placed on light duty. The examiner diagnosed a right medial collateral ligament knee injury. The veteran's separation examination of August 1966 does not note any problems with his leg. An April 2003 letter from M.O., M.D., indicates that the veteran has a history of bilateral calf muscle pain and concomitant burning pain at his right knee. The doctor states that this might be related in part to his prior right knee injury, but does not specify the injury to which he refers. The doctor indicates that the veteran had lumbar surgery in 1994, which alleviated prior right leg radiculopathy and stated that the veteran had right knee injuries on two occasions, but does not elaborate on these injuries. May 2003 medical records show that the veteran complained of soreness around his right knee and muscle aching or cramps in his calves. The veteran's medical records from December 2004 show that he was experiencing bilateral leg pain and right leg numbness. The veteran was afforded a VA examination in January 2008. The examiner reviewed the entire claims file including the veteran's service medical records and private medical records. The examiner stated that the veteran reported having current bilateral leg pain. After physical examination, which showed essentially normal findings, the examiner stated that the veteran had a normal examination of his right knee and noted that the right knee is not associated with the back. (As discussed below, it is also noted that service connection for a back disorder is denied; thus, as a matter of law, secondary service connection for a right leg or knee disorder is prohibited.). As the examiner found the veteran's right knee to be normal, service connection for a right leg disability is not warranted, as there is no current diagnosis. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Although the veteran sustained an injury while in service, the current medical evidence fails to show a current disability. The Court has held that a condition or injury that occurred in service alone is not enough; there must be a current disability resulting from that condition or injury. Chelte v. Brown, 10 Vet. App. 268, 271 (1997). The Board notes two letters in the veteran's file, one from his wife and one from another veteran. The veteran's wife states that she has been with the veteran since July 1967 and since they met, he has had problems with his legs. The letter written by a veteran states that he was aware of the veteran's act of heroism in attempting to stop the forklift. While both of these statements show that the veteran did in fact incur an injury in service, there is no current medical diagnosis to show that the veteran has a current disability or that his pain is related to service. In the alternative, it is also noted that even if the Board presumes that the veteran has a current right leg disability, there is no competent evidence of record etiologically relating it to service or any event of service. The examiner's January 2008 medical opinion is of great probative value in this regard. In this case, because the competent independent medical evidence fails to show a current diagnosis of a leg disorder, or alternatively, fails to show that it is related to service, the Board finds that the preponderance of the evidence is against the claim of service connection for a right leg disability, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Back Pain As discussed above, the veteran attributes his current back condition to the injury he sustained while in service. A review of the service medical records, while documenting the incident to which the veteran references, does not make any note of back pain or note any problems with the veteran's back. The August 1966 separation examination is negative for any complaints of back pain as well. Although the post-service medical evidence shows a history of back pain since the veteran's departure from service, the medical evidence also clearly attributes his complaints and pain to an after service work-related injury. In fact, September 1977 medical records show acute low back pain due to an injury the veteran sustained at his job. At that time, the pain was shown to be aggravated by motion and relieved by rest. The reports thereafter show continued complaints of back pain with treatment. In July 1994, the veteran experienced back discomfort extending down all the way to his foot. In August 1994, the veteran's medical records show a right herniated disc, which was confirmed by an MRI. September 1994 medical records show the veteran had a ruptured disc at L5-S1 and stated that the veteran needs back surgery. December 1994 medical records show that the veteran continued to have discomfort in his legs and low back. April 1995 showed discomfort in his left low back. May 2003 medical records show the veteran had right low back pain for many months. December 2003 medical records show that the veteran injured his back, but does not refer to a specific injury. The veteran's medical records from December 2004 show that he has L5-S1 right micro-hemilaminectomy with marked reduction in the disc space reductive sclerosis and vacuum disc phenomenon. February 2005 medical records show mild narrowing of the L4-5 and L5-S1 intervertebral disc spaces. In March 2005, the veteran reported having low back surgery. The examination found the alignment of the lumbar spine to be anatomic with mild narrowing of the L4-5 and L5-S1 intervertebral disc spaces. Not one of the reports attributes the veteran's back disorder to service. In the January 2008 examination report, the examiner stated that the veteran reported having current back pain. After examination, the examiner diagnosed moderate to severe lumbar degenerative disc disease L5-S1 with a possible recurrent herniated disc. He also noted that there was evidence of a hemilaminectomy defect on the right at L5-S1. The examiner then noted that there is no new evidence showing that the veteran injured his back while in service, nor is their evidence of treatment for back pain while in service. The examiner notes that private medical records dated in September 1977 show a work injury for which the veteran was treated for almost one year. There was no indication that the veteran incurred his injury in service or that his current back condition is service related or service aggravated. While the veteran has submitted two lay statements, asserting that his account of his injury in service is verified, the other objective evidence of record is inconsistent with those assertions. As noted, there is no record of an in-service back injury, and the veteran's private medical records indicate that he sought treatment for back pain in 1977, about 10 years after service, due to a job related injury. The medical evidence fails to show that his disability began in service, or is in any way related to any event of service. In addition to the foregoing, after reviewing the veteran's claims file and examining him, a VA examiner has stated that there is no relationship between the veteran's current injury and service. The Board places great probative value on this medical opinion. Prejean v. West, 13 Vet. App. 444 (2000) (Factors for assessing the probative value of a medical opinion include the physician's access to the claims file and the thoroughness and detail of the opinion). Therefore, the Board finds that a preponderance of the evidence weighs against the veteran's claim and there is no doubt to resolve. The claim for entitlement to service connection for a back disability is denied. III. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) that VA will request that the claimant provide any evidence in his possession that pertains to the claim. The Board concludes that the veteran has been afforded appropriate notice under the VCAA. The RO provided a VCAA notice letter to the veteran in November 2004, prior to the initial adjudication of the claims. The letter notified the veteran of what information and evidence must be submitted to substantiate a claim for service connection. VA indicated that in order to substantiate a claim for service connection, the evidence needs to show he has a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which is usually shown by medical records or medical opinions. As to informing the veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had a duty to obtain any records held by any federal agency. It also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. The VCAA letter of November 2004 stated that he would need to give VA enough information about the records so that it could obtain them for him. Finally, he was told to submit any evidence in his possession that pertained to the claim. See also VCAA letter dated in July 2007. The Court in Dingess/Hartman holds 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. As previously defined by the courts, 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. In the present appeal, a July 2007 letter to the veteran included the type of evidence necessary to establish a disability rating and effective date for the disability on appeal. Regarding Dingess notice, element (1) is not at issue. Regarding elements (2), and (3), (current existence of a disability and relationship of such disability to the appellant's service), as discussed above, the veteran was notified of what was needed to substantiate the claims for service connection in the November 2004 letter. The veteran was provided with notice of elements (4) and (5) (degree of disability and effective date) in the July 2007 letter. Notwithstanding this belated Dingess notice on elements (4) and (5), the Board finds that the veteran is not prejudiced. The veteran had a meaningful opportunity to participate effectively in the processing of the claims. As noted above, the veteran was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection in November 2004, prior to the initial adjudication of the claims. Further, as discussed in detail above, the preponderance of the evidence is against the claims for service connection, and therefore any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. For these reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide this appeal. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has obtained the veteran's service medical records and private medical records. VA also provided the veteran with an examination in connection with his claims. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. The evidence of record provides sufficient information to adequately evaluate the claims. Therefore, no further assistance to the veteran with the development of evidence is required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Entitlement to service connection for a right leg disability is denied. Entitlement to service connection for a back disability is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs