Citation Nr: 1007208 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-26 121A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for pes planus. ATTORNEY FOR THE BOARD Megan L. Engebretson, Associate Counsel INTRODUCTION The Veteran had active service from June 1992 to August 1992 with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The issue of entitlement to service connection for pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The competent medical evidence does not reveal a diagnosis of any low back disability or associate any reported low back disability with the Veteran's active service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.308 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify set out above was satisfied by way of a letter sent to the Veteran in March 2006 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Neither the Veteran nor her representative has indicated that the Veteran incurred any period of treatment at VA or elsewhere for a back injury. The Veteran has not submitted any private treatment records. There is no indication that the Veteran has been diagnosed with a disability. The Board acknowledges that, to date, the Veteran has not been afforded a VA Compensation and Pension (C&P) examination in regard to her claim for service connection. In determining whether the duty to assist requires that a VA C&P 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.A. § 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, no examination is necessary in order to adjudicate the Veteran's claim of entitlement to service connection. Specifically, there is no indication, besides the Veteran's own statements, that she has a low back disability. Further, the Veteran's statements are also the only indication that her current affliction may be related to her active service. There is no indication that the Veteran has a current back disability, that the Veteran injured her back during active service, or that any possible back disability may be related to the Veteran's active service. As such no examination is required. Significantly, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1111, 1112, 1113; 38 C.F.R. § 3.303. 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 C.F.R. § 3.303(d). Generally, to establish service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has also held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that she has a low back disability which was caused by her active service. The Veteran did not seek treatment for back pain or a related condition during active service. She opted to forego a separation examination. There are no treatment records for a low back condition. The Veteran has not submitted any statements detailing her condition or where she has been treated, though she has been sent several requests. The Veteran has identified that she has pain, but does not specify that it is low back pain. In light of the evidence the Board finds that entitlement to service connection for a low back condition is not warranted. There is no indication that the Veteran suffered any injury in service or has a current low back disability besides her own statements and generalized complaints of pain. There is no evidence associating any reported pain with the Veteran's active service. While the Veteran is competent to relate that she has pain in her back, and has had the pain since active service, she is not competent to render an opinion associating that pain with any event during service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). While the Board finds the Veteran's complaints credible, without any record of treatment cannot grant service connection or further develop her claim. In addition, the Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Further, in the absence of proof of a present disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such the Veteran's claim must be denied. In reaching the decision above the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against entitlement to service connection for a low back condition, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back condition is denied. REMAND The Veteran seeks entitlement to service connection for pes planus. She contends that she has pes planus that was caused or aggravated by her active service. The Veteran's entrance examination indicates that she entered service with moderate pes planus. She was treated for pes planus on two occasions during service. She was prescribed arch supports to treat the condition. The Veteran submitted private treatment records from the University of Mississippi Medical Center evidencing treatment for pes planus. During her treatment the Veteran stated that she had pain in her foot and leg which started during basic training. Radiographs revealed that the Veteran had flatfoot deformity. She was diagnosed with plantar fasciitis. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the Veteran currently has pes planus, has indicated she has had the condition since service, and was treated for the condition in service, an examination must be provided to establish whether the Veteran's active service caused or aggravated her foot condition. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of the Veteran's pes planus. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed, and all findings should be reported in detail. The examiner should comment on the Veteran's report regarding the onset and continuity of symptomatology and opine as to whether it is at least as likely as not that any pes planus found is related to, had its onset during, or was aggravated beyond the natural progression of the disease during service. The rationale for all opinions expressed should be provided in a legible report. 2. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, the RO/AMC should issue the Veteran and her representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs