Citation Nr: 0813140	
Decision Date: 04/21/08    Archive Date: 05/01/08

DOCKET NO.  04-19 608	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan


THE ISSUE

Entitlement to service connection for a lumbar spine 
disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Bridgid D. Cleary, Associate Counsel



INTRODUCTION

The veteran served on active duty from June 1993 to June 
1997.

This matter has come before the Board of Veterans' Appeals 
(Board) on appeal from a January 2004 rating decision of the 
Detroit, Michigan, Department of Veterans Affairs (VA) 
Regional Office (RO), which denied entitlement to service 
connection for disc space narrowing, lumbar spine.  The 
veteran perfected an appeal of the decision.

In November 2006, the Board remanded the case to the RO for 
further development.


FINDING OF FACT

The medical evidence of record does not show the veteran has 
a lumbar spine disability.


CONCLUSION OF LAW

A lumbar spine disability was not incurred or aggravated by 
the veteran's military service. 38 U.S.C.A. § 1110 (West 
2002); 38 C.F.R. § 3.303 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act

The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 
5107, 5126, was signed into law on November 9, 2000.  
Implementing regulations were created, codified at 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326 (2007).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 
C.F.R. § 3.159(b) must: (1) inform the claimant about the 
information and evidence not of record that is necessary to 
substantiate the claim; (2) inform the claimant about the 
information and evidence that VA will seek to provide; (3) 
inform the claimant about the information and evidence the 
claimant is expected to provide; and (4) request or tell the 
claimant to provide any evidence in the claimant's possession 
that pertains to the claim. Pelegrini v. Principi, 18 Vet. 
App. 112, 120-121 (2004) (Pelegrini II). This "fourth 
element" of the notice requirement comes from the language of 
38 C.F.R. § 3.159(b)(1). Charles v. Principi, 16 Vet. App. 
370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 
186-87 (2002).

The Court held in Pelegrini II that VCAA notice, as required 
by 38 U.S.C.A. § 5103(a) (West 2002), to the extent possible, 
must be provided to a claimant before the initial unfavorable 
RO decision on a claim for VA benefits. Pelegrini II, 18 Vet. 
App. 112, 119-20 (2004). See, too, Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006).

In this case, the veteran was provided notice of the VCAA in 
September 2003, prior to the initial adjudication of his 
claims in the January 2004 rating decision.  The veteran also 
received a second VCAA letter in November 2006 after the 
Board's remand earlier that month.

The VCAA letters summarized the evidence needed to 
substantiate the claim and the VA's duty to assist.  They 
also specified the evidence that the veteran was expected to 
provide, including the information needed to obtain both his 
private and VA medical treatment records.  In this way, the 
VCAA letters clearly satisfied the first three "elements" 
of the notice requirement.  In addition, the November 2006 
letter stated: "If you have any evidence in your possession 
that pertains to your claim, please send it to us."  This 
satisfies the fourth "element."

During the pendency of this appeal, on March 3, 2006, the 
Court issued a decision in the consolidated appeal of 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 
held that the VCAA notice requirements of 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements 
of a service connection claim.  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.  The Court held that upon receipt of an 
application for a service connection claim, 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 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. 
Id. at 486.  Additionally, this notice must include mention 
that a disability rating and an effective date for the award 
of benefits will be assigned if service connection is 
granted. Id.

In this case, the veteran received Dingess notice as part of 
the November 2006 VCAA letter, including as it relates to the 
downstream disability rating and effective dates of his 
claim.

The Board finds that all relevant evidence necessary for an 
equitable resolution of the issues on appeal has been 
identified and obtained, to the extent possible. The evidence 
of record includes service medical records, VA and private 
medical records and the report of a VA examination.  
Additionally, the veteran indicated a concern that the 
service medical records for himself and another veteran had 
become mingled.  To this end, the service medical records of 
the other veteran were received and reviewed by the RO in 
June 2005.  No records pertaining to the veteran were found 
in the service medical records of the named other veteran.  
The veteran has not indicated he has any further evidence to 
submit to VA, or which VA needs to obtain. There is no 
indication there exists any additional evidence that has a 
bearing on this case that has not been obtained. The veteran 
has been accorded ample opportunity to present evidence and 
argument in support of his appeal. All pertinent due process 
requirements have been met. See 38 C.F.R. § 3.103 (2007).



Pertinent Law and Regulations

In general, service connection may be granted for disability 
resulting from a disease or an injury incurred or aggravated 
by active military service. 38 U.S.C.A § 1110 (West 2002); 38 
C.F.R. § 3.303(a) (2007).

In addition, service connection may be granted 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) (2007).

In order to establish a 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 the 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).

Service connection presupposes a current diagnosis of the 
claimed disability. See Brammer v. Derwinski, 3 Vet. App. 
223, 225 (1992).

The current disability requirement for a service connection 
claim is satisfied if the claimant has a disability at the 
time the claim is filed or during the pendency of that claim. 
See McClain v. Nicholson, 21 Vet. App. 319 (2007).

Analysis

With respect to Hickson element (1), there is no evidence of 
a current lumbar spine disability.  The medical records in 
evidence predate the veteran's claim.  The veteran has 
provided no other medical evidence concerning his lumbar 
spine disability during the relevant time period.  In August 
2007, a VA medical examination found that the veteran did not 
have a current back condition.  Thus, the preponderance of 
the evidence is against the finding of a current disability.

In order for a claimant to be granted service connection for 
a claimed disability, there must be evidence of a current 
disability. See Wamhoff v. Brown, 8 Vet. App. 517, 521 
(1996); Brammer, 3 Vet. App. 223, 225 (1992) (service 
connection is limited to cases wherein the service incident 
has resulted in a disability, and in the absence of proof of 
a present disability, there can be no valid claim). See also 
Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992) (service 
connection claim must be accompanied by evidence establishing 
the claimant currently has the claimed disability).  In the 
absence of confirmed diagnosis of a lumbar spine disability, 
meaning medical evidence showing the veteran has the 
condition alleged, service connection is not warranted.  

In short, Hickson element (1) has not been met as to this 
claim. So service connection must be denied on this basis 
alone - irrespective of any other Hickson considerations.

The preponderance of the evidence is against the claim of 
entitlement to service connection for a lumbar spine 
disability.  The benefit sought on appeal is accordingly 
denied since there is no reasonable doubt to resolve in the 
veteran's favor. See Alemany v. Brown, 9 Vet. App. 518, 519 
(1996).


ORDER

Entitlement to service connection for a lumbar spine 
disability is denied.




____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs