Citation Nr: 0811855 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-36 799A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral leg disability, including as secondary to a low back disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky INTRODUCTION The veteran had active service from June 1943 to October 1944. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Portland, Oregon. The veteran's claims file was subsequently transferred to the RO in Milwaukee, Wisconsin. FINDINGS OF FACT 1. There is no competent medical nexus evidence of record indicating the veteran's low back disability is causally or etiologically related to his service in the military. 2. There is no competent medical nexus evidence of record indicating the veteran has a bilateral leg disability, which is causally or etiologically related to his service in the military or a service-connected disability. CONCLUSIONS OF LAW 1. A low back disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309 (2007). 2. A bilateral leg disability was not incurred in, or aggravated by, active service, nor proximately due to, or aggravated by, service-connected disability. 38 U.S.C.A. §§ 1110, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA satisfied its duty to notify as to direct incurrence service connection by means of April 2004 and May 2004 letters from the agency of original jurisdiction (AOJ) to the appellant. These letters informed the appellant of what evidence was required to substantiate his claims for service connection. These letters also informed him of his and VA's respective duties for obtaining evidence, as well as requested that the veteran submit any additional evidence in his possession pertaining to his claims. The Board acknowledges that the veteran was not provided notice as to secondary service connection. The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. VA bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007). The claims file, however, reflects that the veteran has actual knowledge of the evidence necessary to substantiate a secondary service connection claim. This is demonstrated in statements on appeal, including from the veteran's representative. Moreover, the statement of the case and supplemental statement of the case issued to the veteran outlined what was necessary to substantiate his secondary service connection claim. As such, the error did not affect the essential fairness of the adjudication of his claim, and the presumption of prejudice is rebutted. Id.; Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board acknowledges that the veteran was not provided notice as to how a disability evaluation or an effective date would be assigned prior to the adjudication of his claims, but finds that this omission was not prejudicial because the preponderance of the evidence is against his claims for service connection, and thus, no disability rating or effective date will be assigned. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, i.e., the RO, the Board must consider whether the veteran has been prejudiced thereby). See also Soyini v. Derwinski, 1 Vet. App. 540 (1991) (a remand is inappropriate where there is no possibility of any benefit flowing to the veteran). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable January 2005 AOJ decision, as to direct incurrence service connection, was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Duty to Assist With regard to the duty to assist, the claims file contains the veteran's service medical records, VA examination reports, and private medical records. Additionally, the claims file contains the veteran's own statements in support of his claims, including a transcript of the veteran's testimony at a hearing before a Decision Review Officer (DRO) of the RO. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claims. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Legal Criteria Service Connection - In General A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Secondary Service Connection Service connection may be granted, as well, for a disability that is proximately due to, the result of, or aggravated by, a service-connected condition. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). But medical evidence is required to show this secondary cause-and-effect relationship; mere lay opinion will not suffice. See Lanthan v. Brown, 7 Vet. App. 359, 365 (1995). In addition, secondary service connection is permitted for aggravation of a nonservice-connected disability caused by a service-connected condition. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (". . . when aggravation of a veteran's non-service- connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability . . . over and above the degree of disability existing prior to the aggravation."). Analysis Based on the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claims of entitlement to service connection for a low back disability and a bilateral leg disability, so these claims must be denied. 38 C.F.R. § 3.102. The service medical records do not show that the veteran complained of, or was treated for, a low back disability or a bilateral leg disability during his military service. While the Board acknowledges that, in September 1944, the veteran complained of back pain following anesthesia related to surgery for pilonidal cysts, the veteran's contemporaneous physical examination was normal. See 38 C.F.R. § 3.303(a) (service connection requires that the facts "affirmatively [show] inception or aggravation . . . ."). In addition, there is no objective evidence of continuance of symptomatology during the years following the veteran's discharge from service. See Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology). In particular, the veteran's low back and bilateral leg disabilities were not manifested or diagnosed within the one- year presumptive period following his discharge from service in October 1944. Likewise, his March 1947 VA examination was normal, with no limitation of motion of the spine. Instead, it appears that the veteran was not treated for a low back disability until 1985 and he did not have bilateral leg complaints until 2004. In the absence of demonstration of continuity of symptomatology, the initial demonstration of the disabilities at issue, decades after service, is too remote from service to be reasonably related to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board acknowledges that the T.T.N., M.D. opined in October 2002 and February 2005 that the veteran's low back complaints are related to the veteran's in-service surgery for pilonidal cysts during his military service. However, Dr. N did not provide a rationale for his opinion, or otherwise refer to any credible supporting evidence that the veteran's low back disability was related to his service, including the surgery for pilonidal cysts. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (the Board is not required to accept unsubstantiated or ambiguous medical opinions as to the origin of the veteran's disorder). See also Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (the Court rejected a medical opinion as "immaterial" where there was no indication the physician had reviewed relevant service medical records or any other relevant documents that would have enabled him to form an opinion on service connection on an independent basis). Similarly, Dr. N appears to have based his opinion on the history as related by the veteran, and not a review of the entire claims file. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of lay history, unenhanced by any additional medical comment, does not constitute competent medical evidence). Thus, the probative value of the veteran's treating provider's opinion is diminished. In contrast, the June 2003, April 2004, June 2004, and December 2007 VA examiners all concluded that the veteran's current low back disability is unrelated to the veteran's military service, including his in-service surgery for pilonidal cysts. The April 2004 VA examiner explained that the veteran's current low back complaints were caused by degenerative osteoarthritis of the lumbar spine and spondylolisthesis, which were conditions unrelated to the pilonidal cysts or surgery therefore. The December 2007 VA examiner further explained that the veteran's current low back disability was also unrelated to the veteran's September 1944 back complaint and noted that pilonidal cysts do not cause mechanical back problems. This VA examiner also stated that the veteran's surgery for pilonidal cysts was not orthopedic in nature, and that there were many post-service opportunities for back injuries, which could have caused his current low back disability. See 38 C.F.R. § 3.303(b) (subsequent, isolated manifestations of a chronic disorder are not service connected where they are clearly attributable to intercurrent causes). Although the Board may not ignore medical opinion evidence, greater weight may be placed on one physician's opinion than another's depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. See Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Here, for the reasons explained above, the Board affords greater weight to the opinions contained in June 2003, April 2004, June 2004, and December 2007 VA examination reports. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole). These VA examination reports reflect that the VA examiner reviewed the veteran's entire claims folder prior to finding that it was unlikely that the veteran's current low back disability was not related to his military service. In short, these VA examiners' opinions have significant probative weight since each was based on a review of the complete record, and the VA examiner not only considered the veteran's assertions and medical history, but also undertook a comprehensive clinical examination of him. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993). In addition, there is no medical evidence of record indicating a bilateral leg disability was incurred during or as a result of his military service. In fact, there is no medical evidence of record that the veteran currently has a bilateral musculoskeletal leg disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability."). The June 2004 VA examination also was negative for a bilateral leg disability, other than mild venous insufficiency, which was found to be unrelated to the veteran's military service. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability . . ."). Moreover, the fact that there has been no demonstration, by competent clinical evidence of record, that the veteran's current low back disability is attributable to his military service unfortunately also, in turn, means that he cannot link his bilateral leg disability to his service or a service-connected disability - via his low back disability. 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. at 448. That is to say, the elimination of one relationship to service, as the supposed precipitant, necessarily also eliminates all associated residual conditions. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) ("In order for service connection for a particular disability to be granted, a claimant must establish he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service.'" Citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Service connection has not been established for any disability. Therefore, the only evidence portending that the veteran has a low back disability and a bilateral leg disability related to his service, comes from him personally. As a layperson, the veteran simply does not have the necessary medical training and/or expertise to diagnose or determine the etiology of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). See, too, Savage v. Gober 10 Vet. App. at 495-498, indicating that, even in situations of continuity of symptomatology after service, there still must be medical evidence relating the current conditions at issue to that symptomatology. Id. As such, his allegations, alone, have no probative value without medical evidence substantiating them. So the preponderance of the evidence is against his claims, in turn, meaning the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for a low back disability is denied. Service connection for a bilateral leg disability, including as due to a low back disability, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs