Citation Nr: 0811838 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-06 234 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a back disability, to include as secondary to service-connected mild flat feet. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Associate Counsel INTRODUCTION The veteran served on active duty from October 1968 to June 1970. The present matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision in which the RO denied the veteran's claim for service connection for a back disability. In November 2004, the veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2005, and the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that same month. In May 2005, the veteran testified during a hearing before a Decision Review Officer at the RO; a transcript of that hearing is of record. A July 2005 supplemental SOC (SSOC) reflects the RO's continued the denial of service connection for a back disability, on a direct basis, and a November 2007 SSOC reflects the denial of a back disability (characterized as lumbosacral strain-myositis or lumbosacral degenerative disc disease (DDD)), to include as secondary to service-connected mild flat feet. In February 2008, the appellant testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. A back disability was not present in service, or for many years thereafter, and there is no medical evidence of a nexus between any such current disability and service. 3. The only medical opinion on the question of whether there exists a medical relationship between a current back disability and service-connected mild flat feet weighs against the claim. CONCLUSION OF LAW The criteria for service connection for a back disability, to include as secondary to service-connected mild flat feet, are not met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice 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) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a December 2003 pre-rating letter, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claim for service connection for a back disability, as well as what information and evidence must be submitted by the appellant, what information and evidence would be obtained by VA, and the need for the appellant to advise VA of and to submit any further evidence that is relevant to the claim. A March 2006 letter informed the appellant how disability ratings and effective dates are assigned and the type of evidence that impacts those determinations. The November 2007 SSOC set forth criteria for a secondary service connection claim. After issuance of each notice described above, and opportunity for the appellant to respond, the November 2007 SSOC reflects readjudication of the claim. Hence, the appellant is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also, Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a SOC or SSOC, is sufficient to cure a timing defect). In the present case, as noted below, the medical evidence of record does not substantiate a causal relationship between the veteran's service-connected mild flat feet and his back disabilities. As such, no action is required to establish the "baseline level of severity" of his nonservice- connected back disabilities, and the newly enacted provisions of 38 C.F.R. § 3.310(b) are not directly relevant to this case. Accordingly, the veteran will not be prejudiced by Board action on this issue at the present time, notwithstanding that he has not been notified of the new provisions of 38 C.F.R. § 3.310(b) to date. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent evidence associated with the claims file consists of the veteran's service medical records; post-service private medical records; as well as outpatient treatment records from the VA Medical Center (VAMC) in San Juan, Puerto Rico; and reports of VA examinations. Also of record and considered in connection with the claim are the transcripts of the veteran's RO and Board hearings, as well as various written statements, by the veteran and his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the appellant has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). If a chronic disease, such as arthritis, becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service- connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). After a full review of the record, including the medical evidence, the veteran's hearing testimony and statements by the veteran and his representative, the Board finds that service connection for a back disability, to include as secondary to his service-connected mild flat feet, is not warranted. Initially addressing the question of current disability, the Board notes that a September 2006 VA examiner diagnosed cervical strain-myositis, lumbosacral strain-myositis, and lumbosacral DDD; the examiner also noted that a laminectomy in the lumbosacral spinal area had been performed in 1990, due to discogenic disease. While this medical evidence supports a finding of current back disabilities, the claim must, nonetheless, be denied on the basis of medical nexus. Contrary to the veteran's oral and written assertions, the medical evidence reflects no complaints, findings, or diagnosis pertaining to the back in service or for many years thereafter. Service medical records include no mention of the veteran's back. His spine and musculoskeletal system were noted to be normal in the report of the June 1970 separation examination. There also is no evidence of a back disability within the one-year presumptive period for arthritis, or for many years after service. The report of a September 1970 VA examination shows no back complaints or diagnoses, and VA medical records dated from January 1971 to August 1972, and October 2003, reflect no back complaints. Private medical treatment records dated from May 1991 to October 2004 show ruptured lumbar discs in May 1991. A July 2000 magnetic resonance imaging (MRI) scan reveals DDD consistent with a left herniated disc at L5-S1 and a central and right sided herniated disc at L4-L5. An August 2002 private hospital record notes the veteran's right total hip arthroplasty. Thus, the medical evidence documents the first reference to and treatment for back problems approximately 20 years after his separation from service. The Board further notes that there is no competent evidence whatsoever even suggesting that there is a medical nexus between any current back disability-to include degenerative changes-and either service or service-connected disability.. In an October 2004 written statement, D.K.M., M.D., one of the veteran's private physician's, opined that the veteran's osteoarthritis in his right hip could have been caused by previous trauma, such as jumping from a helicopter during service; however, this speculative opinion does not address a current back disability. Moreover, while the veteran testified that a doctor once told him his back hurt because of his flat feet, he also testified that a doctor had told him that there was insufficient information in the records for him to opine whether an in-service injury was the cause of the veteran's back disabilities . See hearing transcript, p. 4. While, even if true, the doctor's comments fall short of establishing a medical nexus in this case, the Board notes, in any event , that the veteran's assertions of what a doctor told him do not constitute competent evidence of the required nexus. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). In this case, there simply is no medical opinion that addresses the medical relationship, if any, between current back disability and service, and the only medical opinion on the matter of secondary service connection weighs against the claim. The report of a September 2006 VA examination includes the examiner's notation that the veteran reported neck and lumbosacral pain since 1969 (while in service), but that he very seldom had cervical spine pain now. The examiner noted the veteran's prior laminectomy in the lumbosacral area due to discogenic disease, the report of almost constant lumbosacral pain, and a right hip arthroplasty in 2000 due to degenerative joint disease. The examiner diagnosed cervical strain-myositis, lumbosacral strain-myositis, and lumbosacral DDD, and opined that the veteran's spinal disabilities were not related to his service-connected flat feet disability in terms of etiology, pathophysiology or anatomy. The Board finds the September 2006 opinion probative on the matter of secondary service connection, based as it was on a review of the veteran's claims file and a current examination. Significantly, neither the veteran nor his representative has presented, identified, or even alluded to the existence of any medical evidence or written opinion that supports a finding of service connection for a back disability on a direct, presumptive, or secondary basis. In addition to the medical evidence addressed above, the Board has considered the oral and written assertions of the veteran and his representative in connection with the claim on appeal. However, as laymen without appropriate medical training and expertise, neither the veteran nor his representative is competent to render a probative (i.e., persuasive) opinion on a medical matter, to include a question as to the etiology of a current disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). Hence, the lay assertions in this regard have no probative value. Under these circumstances, the claim for service connection for a back disability, to include as secondary to service- connected mild flat feet, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a back disability, to include as secondary to service-connected mild flat feet, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs