Citation Nr: 0811528 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-10 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a chronic low back disorder. ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from February 1969 to September 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of April 2005 by the Department of Veterans Affairs (VA) Los Angeles, California Regional Office (RO). FINDINGS OF FACT A chronic low back disorder was not present until many years after service and there is no competent evidence that the veteran's current disorder is related to service. CONCLUSION OF LAW A chronic low back disorder was not incurred in or aggravated by service, and arthritis of the lumbar spine may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in July 2004 provided the veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The veteran's duty-to-assist letter was provided before the adjudication of his claim. In addition, the letter specifically informed the veteran that he should submit any additional evidence that he had in his possession. With respect to the Dingess requirements, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability / disabilities on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claim / claims for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot. The VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board concludes, therefore, that the appeal may be adjudicated without a remand for further notification. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The veteran's post-service treatment records have been obtained. The veteran has declined a hearing. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. Although the veteran's service medical records could not be obtained, all appropriate efforts to secure them were made. The Board notes that in reply to a request by the RO for such records, the National Personnel Records Center (NPRC) reported in March 2005 that "The National Personnel Records Center has conducted an extensive and thorough search of the records among our holdings. We were unable to locate the records identified in your request. On the basis of the request presented to the NPRC, we have concluded that the records either do not exist, that NPRC does not have them, or that further efforts to locate them at NPRC would be futile." The Board also finds that an examination is not warranted. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The Board finds that a medical examination in not necessary in this case. While there is evidence of a current disability, there is no indication that his current disability may be associated with the veteran's service. There is no medical evidence to support his contentions that this problem started in service and has gotten worse, particularly in light of the fact that his first complaints post-service are associated with onset in 2000 or later. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claims. Therefore, no further assistance to the veteran with the development of evidence is required. Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131. If a chronic disorder such as arthritis is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As noted above, the veteran's service medical records were destroyed by fire. Under such circumstances, there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). After considering all of the evidence of record, the Board finds that there is no evidence that the veteran currently has a low back disorder which is related to service. In reaching this conclusion, the Board has considered a written statement from the veteran dated in March 2005 in which he recounted that while stationed at an airfield in the Mekong Delta, he worked as a truck driver and injured his back He said that his back was treated and he was given pills. The Board finds, however that the lack of medical records for many years subsequent to service weighs against the claim as it indicates that there was no continuity of symptomatology after service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in deciding a service connection claim). The post service treatment records reflect that the onset of the current back problems was in later 2000 or early 2001. There are numerous VA treatment records which place the date of onset of the current symptoms as being within that time period. For example, a March 2001 VA record noted that he had back pain which started in January 2001. An April 2001 VA record notes a history of back pain since the beginning of 2001. A June 2001 VA record notes back pain since last December. It was noted that there was no history of injury to the back. Another June 2001 VA record notes that there was no history of trauma. A VA record dated in April 2002 noted that the back pain began ten months ago. Other VA treatment records contain similar histories. Moreover, the veteran himself placed the date of onset of his back symptoms as being long after service in a claim for pension which he filed with the VA in February 2003. In response to a question regarding he date of onset of disability, he reported that it began in 2002. The Board finds that the statements made by the veteran in connection with his pension claim and for the purposes of obtaining medical treatment have higher probative value than the more recent statements which he offered in support of his claim for compensation benefits. In addition, there is no competent medical evidence that the veteran's current low back disorder is related to service. Accordingly, the Board concludes that a chronic low back disorder was not incurred in or aggravated by service, and arthritis of the spine may not be presumed to have been incurred in service. ORDER Service connection for a low back disorder is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs