Citation Nr: 0812152 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 07-02 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been submitted to reopen the previously-denied claim of entitlement to service connection for a hernia or abdominal rupture. 2. Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (the Board) on appeal of an October 2006 rating decision of the "Tiger Team" located at the Department of Veterans Affairs Regional Office (RO) in Cleveland, Ohio. Procedural history The veteran served on active duty in the United States Army from May 1943 to November 1945. Service connection for a "stomach and side ailment" was initially denied by the RO in a November 1953 rating decision. The veteran subsequently attempted to reopen his claim of entitlement to service connection (claimed as an "inguinal hernia" in 1995 and "hernia and rupture of right abdomen" in 1998), which was denied by the RO in August 1995 and October 1998 rating actions. The veteran did not appeal either of these decisions. The present appeal stems from the above-referenced October 2006 rating decision, which determined that new and material evidence had not been submitted to reopen the previously- denied claim of entitlement to service connection for a hernia or abdominal rupture. At that time the RO also denied the veteran's initial claim of entitlement to service connection for a back disability. In March 2008, a motion to advance this case on the Board's docket was granted. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900 (2007). Issue not on appeal In a November 2004 rating decision, the RO denied the veteran's claim of entitlement to special monthly pension. The veteran submitted a notice of disagreement in regards to this decision. The RO subsequently wrote to the veteran in December 2004, indicating that it was unable to accept the veteran's notice of disagreement since the November 2004 rating decision did not fully advise him as to the reasons his claim was denied. The veteran was informed that he would soon receive a letter which would more thoroughly explain the basis for the denial of the pension claim, after which he would have the opportunity to submit another notice of disagreement if he so desired. The RO subsequently sent the veteran a letter in January 2005 which, unlike the prior November 2004 decision, indicated the veteran's income exceeded the maximum annual disability pension limit set by law. The veteran did not submit a notice of disagreement in response to the January 2005 letter, though he continued to submit statements concerning the issues presently within the Board's jurisdiction. The Board therefore views the veteran's failure to respond to the January 2005 letter as indicative of his intent not to appeal the denial of pension benefits. FINDINGS OF FACT 1. In an unappealed October 1998 decision, the RO denied service connection for a hernia or abdominal rupture. 2. The evidence associated with the claims folder subsequent to the October 1998 RO rating decision is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a hernia or abdominal rupture. 3. The competent medical evidence of record does not support a finding that a back disability currently exists. CONCLUSIONS OF LAW 1. The October1998 RO decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). 2. Since the October 1998 RO decision, new and material evidence has not been received to reopen the claim of entitlement to service connection for a hernia or abdominal rupture. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. A back disability was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks service connection for a hernia or abdominal rupture. Implicit in this claim is the contention that new and material evidence to reopen the previously- denied claim has been received. Additionally, the veteran seeks service connection for a back disability. In the interest of clarity, the Board will first discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The VCAA duty to notify currently applies to all issues on appeal; the standard of review and duty to assist provisions, however, do not apply to the previously-denied claim unless such is reopened. See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. Standard of review The general standard of review applied by the Board is as follows. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. This standard, however, does not apply to the claim to reopen until such claim has in fact been reopened. The standard of review as to the issue involving new and material evidence will be set forth where appropriate below. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. The Board observes that the veteran was informed of the relevant law and regulations pertaining to his service connection claim in a letter from the RO dated August 2, 2006 which informed the veteran that the evidence must demonstrate "a relationship between your current disability and an injury, disease or event in military service." With respect to notice regarding new and material evidence, the August 2006 VCAA letter specifically explained that the veteran's claim for hernia or abdominal rupture was previously and finally denied and informed the veteran that evidence sufficient to reopen the veteran's previously denied claims must be "new and material," closely mirroring the regulatory language of 38 C.F.R. § 3.156(a). However, the August 2006 letter did not advise the veteran of the bases for the previous denial in October 1998. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In fact, this was not outlined until the October 2006 rating action, which informed the veteran that his claim had been previously denied "because there was no evidence of the condition in your service medical records." Because the veteran did not receive proper Kent notice prior to the initial adjudication of his claim, the Board must consider whether he was prejudiced by such action. In such circumstances, the timing error is presumed prejudicial and the burden shifts to VA to demonstrate that the error was not prejudicial to the claimant. See Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16, 2007). After reviewing the record, the Board believes that VA has overcome its burden of showing that the veteran was not prejudiced by the timing error. Shortly after veteran received notice as to the bases for the previous denial in compliance with Kent, he responded with a statement indicating that "I rest my appeal on the evidence of record." See the January 8, 2007 substantive appeal. Neither the veteran nor his representative has since indicated that additional evidence exists which has not already been obtained. It thus appears that the veteran has no additional evidence in his possession which would influence the Board's decision. Therefore, remanding the case for additional VCAA compliance action or readjudication of the claim would only cause further delay of the appeal with little or no benefit flowing to the veteran. The veteran is obviously aware of what is required of him and of VA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Accordingly, there is no prejudice to the veteran in proceeding to consider his claim to reopen in spite of the timing deficiency as to Kent notice. The Board has identified no other VCAA notice deficiencies. The RO informed the veteran of VA's duty to assist him in the development of his claims in the above-referenced August 2006 letter, whereby he was advised of the provisions relating to the VCAA. Specifically, the veteran was advised in this letter that VA is responsible for obtaining records from any Federal agency, to include military records, outpatient records from VA treatment facilities and records from the Social Security Administration. The August 2006 letter further indicated that a VA examination would be scheduled if necessary to adjudicate his claims. With respect to private treatment records, the veteran was informed in the August 2006 letter that VA would make reasonable efforts to obtain relevant private records. Copies of VA Form 21- 4142, Authorization and Consent to Release Information, were included with the letter, and the veteran was asked to complete this release for each private healthcare provider so that VA could obtain these records on his behalf. The August 2006 letter further emphasized: "If the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure that we receive all requested records that are not in the possession of a Federal department or agency" [Emphasis as in original]. Finally, the Board notes that the August 2006 VCAA letter specifically requested of the veteran: "If there is any other evidence or information that you think will support your claim[s], please let us know. If you have any evidence in your possession that pertains to your claim[s], please send it to us." This complies with the requirements of 38 C.F.R. § 3.159 (b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. The Court has recently issued a significant decision concerning the VCAA. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status [not at issue here]; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided specific notice of the Dingess decision in the above-referenced August 2006 VCAA letter, which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on- going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the August 2006 letter instructed the veteran that two factors were relevant in determining effective dates: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. Accordingly, the veteran has received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The VCAA appears to have left intact the requirement that a veteran must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceeding to evaluate the merits of that claim. As for the remaining claim for service connection for a back disability, the Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the RO has obtained reports of VA treatment of the veteran. The veteran has not been afforded VA examination with respect to his claimed back disability. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the veteran's service medical record are completely negative for evidence of back disease or injury, and post-service medical evidence of record is against the finding of a current back disability. Accordingly, the evidence does not indicate the presence of a current back disability that may be related to service such as to require an examination under McLendon. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has been ably represented by his service organization. He has declined the option of a personal hearing. Accordingly, the Board finds that under the circumstances of this case, the VA has satisfied the notification and duty to assist provisions of the law and that no further actions pursuant to the VCAA need be undertaken on the veteran's behalf. Therefore, the Board will proceed to a decision. 1. Whether new and material evidence has been submitted to reopen the previously-denied claim of entitlement to service connection for hernia or abdominal rupture. Relevant law and regulations Service connection - in general Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). In addition, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Finality/new and material evidence In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unsubstantiated fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2007). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis The veteran seeks entitlement to service connection for a hernia or abdominal rupture. Implicit in his claim is the contention that new and material evidence has been received by VA which is sufficient to reopen the claim. When the veteran's claim was initially denied on the merits in November 1953, the following evidence was of record: Service medical records demonstrate that the veteran made no abdominal complaints during his period of active duty, and no such conditions were identified during the November 1945 separation examination. The veteran presented to D.F., M.D., in October 1953 with complaints of abdominal pain of two days duration. Examination at that time was negative. The veteran was referred to another physician, K.B., who also found no evidence of abdominal disease upon examination of the veteran. The initial denial of the claim of entitlement to service connection for a stomach/side ailment was predicated on lack of a current disability as well as no evidence of in-service disease [Hickson elements (1) and (2)]. Hickson element (3), medical nexus, was also necessarily lacking for this claim. The veteran attempted to reopen his claim in 1995 and 1998. In the October 1998 rating decision, the RO re-adjudicated the claim on the merits. Responding to the veteran's contention that he was hospitalized for an inguinal hernia in 1945, the RO determined there was no "record of treatment in service for hernia or abdominal rupture." [Instead, it appears that the veteran was hospitalized in July 1945 for pain radiating from his right side to his right testicle; no disease was identified after x-ray testing]. Additionally, the record contained no evidence of a current hernia or abdominal disability. Therefore, as with the previous denial in November 1953, all three Hickson elements were lacking. That decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). As explained above, the veteran's claim for service connection may be reopened if he submits new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2007); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board's inquiry will be directed to the question of whether any additionally received (i.e. after October 1998) evidence bears directly and substantially upon the specific matter under consideration, namely the elements which were previously lacking. These include whether the veteran has submitted evidence a current diagnosis of a hernia or abdominal rupture and the presence of such in service. 38 C.F.R. § 3.156 (2007). After reviewing the record, and for reasons expressed immediately below, the Board is of the opinion that new and material evidence to reopen the claim has not been submitted. The evidence added to the veteran's claims folder since the last final decision consists of a statement from VA Outreach Worker J.C.P., a March 2002 discharge summary from University Hospitals of Cleveland, VA outpatient treatment records, and the veteran's numerous written statements. [The veteran also submitted an Income-Net Worth and Employment Statement with respect to his claim for a special monthly pension; however, this document has no bearing whatsoever on the claim to reopen and will not be further addressed.] With respect to the veteran's own statements as well as that of J.C.P. to the effect that the veteran was hospitalized in service for a hernia and has had hernia symptoms since that time, these statements are essentially reiterations of similar contentions raised in connection with his previous claims and have already been considered by the RO. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Moreover, lay persons without medical training, such as the veteran and J.C.P., are not competent to opine on medical matters such as diagnosis and etiology. In Moray v. Brown, 5 Vet. App. 211 (1993), the Court noted that laypersons are not competent to offer medical opinions and that such evidence does not provide a basis on which to reopen a claim for service connection. In Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court noted "[l]ay assertions of medical causation . . . cannot suffice to reopen a claim under 38 U.S.C.A. 5108." The March 2002 discharge summary from University Hospitals of Cleveland and the recent VA medical records document ongoing medical treatment for various unrelated health issues. These reports do not indicate that the veteran has any current hernia or abdominal problems and are therefore not new and material to the claim. See Villalobos v. Principi, 3 Vet. App. 450 (1992) [evidence that is unfavorable to a claimant is not new and material]; see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence]. In short, the additionally-added evidence does not serve to establish, or even suggest, that the veteran has a current diagnosis of a hernia or abdominal rupture and the presence of such in service. The evidence submitted subsequent to the October 1998 denial of the claim is therefore cumulative and redundant of the evidence of record at that time, and it therefore does not raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2007). Accordingly, new and material evidence has not been submitted, and the claim of entitlement to service connection for a hernia or abdominal repair is not reopened. The benefit sought on appeal remains denied. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000), [a veteran seeking disability benefits must establish a connection between the veteran's service and the claimed disability]. 2. Entitlement to service connection for a back disability. Relevant law and regulations The law and regulations generally pertaining to service connection have been set out above and will not be repeated. Service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). Analysis As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. With respect to Hickson element (1), the veteran's VA and private medical records are completely negative for complaints of or a diagnosis of a current back disability. The Board acknowledges that the veteran presented to Dr. D.F. in February 1952 with complaints of back pain; however, examination of the veteran at that time was negative for the presence of any back disability. In any event, pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). To the extent that the veteran himself contends that he has a current back disability, it is now well-established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the veteran's own statements offered in support of his back claim are not competent medical evidence and do not serve to establish the existence of a current disability. As detailed in the VCAA discussion above, the veteran has been accorded ample opportunity to present medical evidence of a current back disability. He has failed to do so. See 38 U.S.C.A. § 5107(a) [it is the claimant's responsibility to support a claim for VA benefits]. In the absence of any currently diagnosed back disability, service connection may not be granted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. Accordingly, Hickson element (1) has not been met, and the claim fails on this basis alone. For the sake of completeness, the Board will also address the remaining two Hickson elements. With respect to Hickson element (2), the veteran contends that he strained his back in service. See the veteran's May 23, 2006 statement. Service medical records reveal that the veteran presented with pain in the right iliac region in July 1945; however, subsequent laboratory testing ascribed the veteran's back pain to the presence of urinary calculus. The veteran made no subsequent back complaints during service, and his November 1945 separation physical examination was negative for any musculoskeletal defects. There is thus no evidence of back injury or disease in service. See Forshey, supra; see also Curry v. Brown, 7 Vet. App. 24, 25 [contemporaneous evidence has greater probative value than history as reported by the veteran]. That the veteran made no mention of a back injury until he filed his claim in May 2006, over 60 years after he left military service and over 50 years after he filed his initial claim for VA benefits for an abdominal disability in September 1953, also supports the premise that no back injury was sustained in service. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Shaw v. Principi, 3 Vet. App. 365 (1992) [a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim]. Moreover, the veteran made no reference whatsoever to an in-service back injury when he sought treatment for back pain from Dr. D.F. eight years after separation in February 1952. See Curry, supra. The Board acknowledges a June 2002 statement of VA Outreach Worker J.C.P which asserted that the veteran was a "combat veteran" who was "hospitalized for about a week after lifting a weapon carrier tire" during active service. This statement, rendered about events occurring over 50 years ago which J.C.P. did not witness, is obviously based on the veteran's reporting of events, a reporting that the Board has rejected. The Board again notes that the contemporaneous medical records make no mention of a back injury, let alone a hospitalization for such as J.C.P. now claims. Also, to the extent J.C.P. argues the veteran was involved in combat, the veteran's DD 214 indicates his primary duty was light truck driver, and he has no awards or decorations indicative of combat status. Accordingly, J.C.P.'s statement, which is contradicted by the contemporaneous service medical records, does not establish an in-service back injury. Id. In short, the Board finds the veteran's recent statements, as well as that of J.C.P., as to an in-service back injury to be lacking in credibility and probative value. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. Accordingly, Hickson element (2) is also not met. Finally, in the absence of a current disability and in- service disease or injury, medical nexus is an impossibility. Element (3) is also not met. In summary, for reasons and bases expressed above the Board concludes that a preponderance of the evidence is against the claim of entitlement to service connection for a back disability. The benefit sought on appeal is accordingly denied. ORDER The request to reopen the previously denied claim of entitlement to service connection for hernia or abdominal rupture is denied. Service connection for a back disability is denied. ____________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs