Citation Nr: 0812289 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-41 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a chronic low back disorder. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from April 1987 to April 1991 and from August 1999 to April 2001. This case comes to the Board of Veterans' Appeals (Board) on appeal of an August 2005 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction over the claims folder was subsequently returned to the RO in Roanoke, Virginia. FINDING OF FACT A chronic low back disorder was not present within one year after the veteran's discharge from his second period of active duty, and no current low back disorder is etiologically related to service. CONCLUSION OF LAW A low back disorder was neither incurred in nor aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require 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 the Secretary that is necessary to substantiate the claim. 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. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a VCAA letter mailed in March 2005, prior to the initial adjudication of the claim, the RO notified the appellant of the information and evidence necessary to substantiate the claim, the information and evidence that VA would seek to provide, and the information and evidence the appellant was expected to provide. In addition, the RO asked the appellant to submit any evidence in his possession that pertains to the claim. Although the veteran was not provided notice with respect to the disability-rating or effective-date element of the claim until March 2006, after the initial adjudication of the claim, the Board finds that there is no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection is not warranted for low back disability. Consequently, no disability rating or effective date will be assigned, so the failure to provide timely notice with respect to those elements of the claim is no more than harmless error. The record also reflects that the veteran's service medical records and post-service medical records identified by him have been obtained. Neither the veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Board further notes that in response to his claim, the veteran was scheduled for a VA examination in November 2005. He failed to report for this examination without explanation and has not requested that the examination be rescheduled. The Court has held that, "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In view of the veteran's failure to cooperate and in accordance with the provisions of 38 C.F.R. § 3.655 (2007), the Board will decide the appeal without the benefit of the VA examination ordered by the RO. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the RO were insignificant and non-prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Board has reviewed the evidence of record, which includes service treatment records from both of his periods of active duty, the report of an examination for entry into National Guard service in November 1991, and private treatment records, which date from March 2004. The medical evidence is negative for the presence of a low back disorder during the veteran's first period of service or during the period of time between his periods of active duty. Treatment records from the veteran's second period of active duty show that the veteran began complaining of back pain in September 1999. In February 2000, it was reported for clinical purposes that the veteran had injured his back while on baggage detail. He had had intermittent, but progressive pain over the last several weeks. The assessment at that time was low back pain, with radiculopathy. On examination for separation from service, the veteran's spine was found to be normal on clinical evaluation. Treatment records from the veteran's private physician, beginning in March 2004, show that the veteran was treated for a history of low back pain, with radiation into the legs. It was reported for clinical purposes that the pain had first occurred while the veteran was lifting things while in the military. The veteran was treated with therapy and anti- inflammatory medications. In January and March 2005, he underwent an arthrogram, steroid injection and medial branch nerve block. When last examined, in April 2005, there was minimal increased discomfort of the lumbosacral spine on the right with extension past neutral. The pertinent impressions were improved right low back pain, status post right L5-S1 facet blocks and degenerative disc disease at L4-5 and L5-S1. The record shows that the veteran first had complaints of low back pain in September 1999, but by the time he separated from service in 2001, clinical evaluation of the spine was normal. He had no further complaints of back pain documented until March 2004. Although the physician did report a history of back pain since service, the treating physician at that time did not relate the veteran's March 2004 back complaints with those shown during the veteran's second period of service. The account amounts to a bare transcription of a lay history that is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). In fact, there is no medical evidence linking the veteran's current low back disability to his active service. As discussed above, the veteran was scheduled for a VA examination to determine if his current low back disorder is related to service. Due to his failure to appear for this examination, the Board must decide the claim based on the current record. In view of the absence of any medical evidence of a nexus between the veteran's current low back disability and his active service, the claim must be denied. ORDER Service connection for a chronic low back disorder is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs