Citation Nr: 0815011 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 04-14 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran served on active duty from November 1955 to September 1957. This matter came to the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In an August 2005 decision, the Board denied service connection for right ear hearing loss. The remaining issues on appeal, entitlement to service connection for left ear hearing loss, tinnitus, and a low back disability, were remanded to the RO for additional evidentiary development. While the matter was in remand status, in a December 2007 rating decision, the RO granted service connection for left ear hearing loss and tinnitus, effective November 14, 2001. The RO assigned initial zero and ten percent ratings, respectively. The Board finds that the grant of service connection for left ear hearing loss and tinnitus constitutes a full award of the benefit sought on appeal with respect to those issues. Absent any indication that the veteran has appealed the downstream elements of the rating or effective date, such matters are not in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, the only issue remaining on appeal is as set forth on the cover page of this decision. FINDING OF FACT The record contains no indication that the veteran's current low back disability is causally related to his active service or any incident therein, including his reported September 1957 low back injury. CONCLUSION OF LAW A low back disability was not incurred in active service, may not be presumed to have been incurred in service, and is not causally related to or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. 3.303, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Duty to Notify Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that notice, VA must inform the claimant of the information and evidence he is expected to provide, as well as the information and evidence VA will seek to obtain on his behalf. In addition, VA must advise a claimant to provide any additional evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). The United States Court of Appeals for Veterans Claims (Court) has provided additional guidance with respect to VA's VCAA notification obligations. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that under the notice provisions of the VCAA, a claimant must be provided notice of the evidentiary matters specified in statute and regulation before an initial unfavorable decision by the RO. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of section 5103(a) apply generally to the following five elements of a service connection claim: (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. In this case, in an April 2002 letter issued prior to the initial decision on the claims, the RO notified the veteran of the information and evidence needed to substantiate and complete a claim of service connection, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. The letter also advised the veteran to submit or identify any additional information that he felt would support his claims. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board acknowledges that the VCAA letter discussed above does not specifically satisfy all of the notice requirements of section 5103(a), particularly the additional requirements delineated by the Court in Dingess/Hartman. However, the RO subsequently corrected this deficiency by issuing a letter in October 2007 which included the additional Dingess/Hartman requirements. The RO then reconsidered the veteran's claims, as evidenced by the January 2008 Supplemental Statement of the Case. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); Medrano v. Nicholson, 21 Vet. App. 165 (2007) (holding that a notice error may be cured by providing compliant notice, followed by a readjudication); 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 an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). For the reasons discussed above, the Board finds that VA has fulfilled its VCAA notification duties to the veteran to the extent necessary. Neither the veteran nor his representative has argued otherwise. Duty to Assist Under the VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). In this case, the veteran's service medical records are unfortunately unavailable. The National Personnel Records Center (NPRC) has unambiguously advised the RO that such records are unavailable, having likely been destroyed in a July 1973 fire at that facility. The NPRC has provided some morning reports showing that the veteran received treatment for a right knee injury, but an additional search revealed that are no further records available. The Board finds that, based on the RO's efforts and the responses from NPRC, it is reasonably certain that additional service medical records or records from alternative sources are not available and that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002). The veteran has been informed that his service records are incomplete. See McCormick v. Gober, 14 Vet. App. 39 (2000); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Therefore, while the Board sincerely regrets that the veteran's service records are unavailable, it finds that VA has no further duty to him with respect to obtaining them. With respect to post-service evidence, the RO has obtained VA clinical records and the veteran has indicated that he has no additional evidence to submit. Specifically, he has indicated that although he received treatment for his low back disability from a private chiropractor after his separation from service, records from that provider are no longer available. Additionally, although he wrote letters to his parents in service detailing his back injury, his parents are now deceased and the letters are not available. Thus, it appears that every avenue of development has been explored. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2007); see also Counts v. Brown, 6 Vet. App. 473, 477 (1994) (noting that "VA has no duty to seek to obtain that which does not exist."). The veteran has also been afforded a VA medical examination in connection with his claim. 38 C.F.R. § 3.159(c)(4) (2007). As set forth in more detail below, after examining the veteran and reviewing the claims folder, the examiner concluded that there was insufficient evidence upon which to reach an opinion regarding the etiology of the veteran's current low back disability. Given that conclusion, the Board finds that another examination is not necessary as it would serve no useful purpose. The Board recognizes that the veteran has been consistent in his contentions throughout his claim and has no reason to doubt his credibility. However, the law does not permit an award of service connection to be predicated on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2007); see also Bostain v. West, 11 Vet. App. 124, 127-28 (1998). Based on the examiner's conclusion, it appears that without the veteran's service medical records or any post-service records pertaining to treatment of the veteran's low back disability, no medical professional would be able to provide a competent nexus opinion without resorting to speculation. For the reasons set forth above, and given the facts of this case, the Board finds that VA has fulfilled its VCAA duties to the veteran. A remand for additional notification or development would only result in unnecessarily delaying this matter with no benefit flowing to the veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, no further notification or development action is necessary on the issues now being decided. Neither the veteran nor his representative has argued otherwise. Background As set forth above, the veteran's service medical records are, unfortunately, unavailable. Morning reports show that in September 1957, the veteran was treated at the Eielson Air Force Base Hospital after he strained a collateral ligament in his right knee. These records are silent for any mention of treatment for a low back disability. In November 2001, the veteran submitted an original application for VA compensation benefits, seeking service connection for several disabilities, including a right knee and low back disability. He indicated that in September 1957, he was hospitalized following a fall in which he injured both his right knee and his low back. He indicated that he was hospitalized for one day during which time fluid was drained from his right knee and he was given a cortisone shot in his back. The veteran claimed that he had had continuous pain in his right knee and lower back since the in-service injury. In support of the veteran's claim, the RO obtained VA clinical records, dated from May 2003 to September 2006. These records show treatment for a right knee disability, but are negative for complaints or abnormalities pertaining to the low back. In March 2004, the veteran underwent VA orthopedic examination at which he reported that in 1957, he had been on ski patrol carrying a machine gun. The right ski became caught underneath some branches and he lost his balance and fell. The veteran indicated that he experienced right knee pain. He received treatment following the injury during which examination showed swelling. He recalled that his knee was drained. Following his separation from service, the veteran indicated that he experienced pain and swelling in his right knee, particularly in rainy weather or when he was on his feet full time. The veteran denied pain in any of his other joints. After examining the veteran and reviewing his claims folder, the examiner concluded that it was more likely than not that the veteran's current right knee disability was related to his in-service injury. In a March 2004 rating decision, the RO granted service connection for right knee anterior cruciate ligament deficiency, as well as right knee arthritis, and assigned separate 10 percent ratings, respectively. In April 2007, the veteran again underwent VA medical examination. The examiner indicated that he had reviewed the veteran's claims folder in connection with the examination. On examination, the veteran reported having had a dull pain in his low back for the past 50 years. He indicated that he had used ibuprofen as needed. On examination, the veteran's spine and posture were normal. Flexion was to 90 degrees, with pain at 80 degrees. On extension, the veteran experienced pain at 20 degrees but could proceed to 30 degrees. Rotation was to 30 degrees, with discomfort. X-ray studies of the spine showed degenerative joint and disc disease. The diagnosis was degenerative joint disease and degenerative disc disease of the lumbosacral spine. With respect to the etiology of the veteran's low back disability, the examiner indicated that he could not offer an opinion due to lack of information. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, such as arthritis, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Moreover, when a service-connected disability causes an increase in, but is not the proximate cause of, a nonservice- connected disability, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation). See Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Analysis The veteran contends that he injured his low back in a September 1957 fall, the same incident in which he injured his right knee. He claims that he has experienced a dull pain in his low back since that injury. As set forth above, the veteran's service medical records are, unfortunately, unavailable. While morning reports document treatment for a right knee injury in September 1957, such records are silent for any reference to a low back injury or disability. Nonetheless, the Board finds that the veteran's statements regarding his in-service low back injury are credible, having been consistent throughout the course of this appeal. As noted, however, that an injury or disease occurred in service is not enough; there must be competent evidence that a chronic disability has resulted from that in-service injury or disease. 38 C.F.R. § 3.303(b). In this case, the Board finds that there is insufficient evidence upon which to conclude that the veteran's in-service low back injury resulted in a chronic low back disability. In that regard, the record on appeal is entirely negative for records showing complaints or findings of a chronic low back disability during service, within the first post-service year, or for decades after service separation. Additionally, while the Board has carefully considered the veteran's credible statements that he has experienced a dull aching in his back for the past 50 years, the record contains no probative evidence of a link between his current low back disability and his reported continuous symptomatology. See Savage v. Gober, 10 Vet. App. 488, 496 (1997). In that regard, the Board notes that in April 2007, a VA physician examined the veteran and reviewed his claims folder. After so doing, he concluded that there was insufficient information upon which to conclude that the veteran's current low back disability was related to service. The Board notes that there is no other probative evidence of record linking the veteran's current low back disability to his active service, any incident therein, including the September 1957 low back injury. Nor is there evidence that the veteran's current low back disability is causally related to or aggravated by any service-connected disability. In summary, the Board finds that lacking any probative evidence of a chronic lumbar spine disability in service or within the first post-service year, or of a link between the veteran's current lumbar spine disability and his active service, any incident therein, or any service-connected disability, service connection for a low back disability is not warranted. Speculation is not legally sufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). As discussed above, the evidence of record falls short of the level of certainty necessary for the Board to award service connection for the veteran's current low back disability. For the reasons discussed above, the preponderance of the evidence is against the claim of service connection for a low back disability. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs