Citation Nr: 1007481	
Decision Date: 03/01/10    Archive Date: 03/11/10

DOCKET NO.  08-33 851A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for residuals of a 
fractured right index finger. 

2.  Entitlement to service connection for a low back 
disability. 


ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel 




INTRODUCTION

The Veteran had active military service from January 1989 to 
February 1992.

The appeal comes before the Board of Veterans' Appeals 
(Board) from a June 2007 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, 
North Carolina, which denied entitlement to service 
connection for residuals of a broken right index finger and 
for a low back disability.

The issue of service connection for residuals of a fractured 
right index finger 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

1.  All notification and development action needed to fairly 
adjudicate the claim herein decided has been accomplished.

2.  The evidence of record demonstrates the Veteran's low 
back disability is not a result of any established event, 
injury, or disease during active service.


CONCLUSION OF LAW

A low back disability was not incurred in or aggravated by 
active military service.  38 U.S.C.A. §§ 1101, 1110, 1116 
(West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303 (2009).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The provisions of the Veterans Claims Assistance Act of 2000 
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a), and as interpreted by the United States Court of 
Appeals for Veterans Claims (the Court) have been fulfilled. 
 In this case, the Veteran filed her service connection claim 
in December 2006.  Thereafter, she was notified of the 
provisions of the VCAA by the RO in correspondence dated in 
February 2007.  This letter notified the Veteran of VA's 
responsibilities in obtaining information to assist the 
Veteran in completing her claim, identified the Veteran's 
duties in obtaining information and evidence to substantiate 
her claim, and provided other pertinent information regarding 
VCAA.  Subsequently, the claim was reviewed and a statement 
of the case (SOC) was issued in September 2008.  See 38 
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. 
Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 
Vet. App. 112 (2004).  See also Mayfield v. Nicholson, 19 
Vet. App. 103, 110 (2005), reversed on other grounds, 444 
F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield 
II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 
1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 
(Fed. Cir. 2007).  The Board notes that 38 C.F.R. § 3.159 was 
revised, effective May 30, 2008, removing the sentence in 
subsection (b)(1) stating that VA will request the claimant 
provide any evidence in the claimant's possession that 
pertains to the claim.  Subsection (b)(3) was also added and 
notes that no duty to provide § 5103(a) notice arises 
"[u]pon receipt of a Notice of Disagreement" or when "as a 
matter of law, entitlement to the benefit claimed cannot be 
established."  See 73 Fed. Reg. 23,353-23,356 (Apr. 30, 
2008).

During the pendency of this appeal, the United States Court 
of Appeals for Veterans Claims (hereinafter "the Court") in 
Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the 
VCAA notice requirements applied to all elements of a claim.  
An additional notice as to this matter was provided in 
February 2007.

The Veteran has been made aware of the information and 
evidence necessary to substantiate her claim and has been 
provided opportunities to submit such evidence.  A review of 
the claims file shows that VA has conducted reasonable 
efforts to assist her in obtaining evidence necessary to 
substantiate her claim during the course of this appeal.  
Statements from the Veteran and her representative, service 
treatment records and VA treatment records have been obtained 
and associated with her claims file.  

Finally, VA need not conduct an examination with respect to 
the service connection claim on appeal, as information and 
evidence of record contains sufficient competent medical 
evidence to decide the claim.  See 38 C.F.R. § 3.159(c)(4). 
Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in 
disability compensation (service connection) claims, the VA 
must provide a VA medical examination when there is (1) 
competent evidence of a current disability or persistent or 
recurrent symptoms of a disability, and (2) evidence 
establishing that an event, injury, or disease occurred in 
service or establishing certain diseases manifesting during 
an applicable presumptive period for which the claimant 
qualifies, and (3) an indication that the disability or 
persistent or recurrent symptoms of a disability may be 
associated with the veteran's service or with another 
service-connected disability, but (4) insufficient competent 
medical evidence on file for the VA to make a decision on the 
claim.  Simply stated, the standards of McLendon are not met 
in this case, as competent medical evidence does not provide 
any indication that the Veteran's low back pain may be 
associated with her military service or that she has current 
residuals of an in-service right index finger fracture.

Furthermore, the Veteran has been notified of the evidence 
and information necessary to substantiate her claim, and she 
has been notified of VA's efforts to assist her.  See 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  As a result 
of the development that has been undertaken, there is no 
reasonable possibility that further assistance will aid in 
substantiating her claim.

Laws and Regulations

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
military service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 
38 C.F.R. § 3.303.  Service connection may be established for 
any disease diagnosed after discharge, when all the evidence, 
including that pertinent to service, establishes the disease 
was incurred in service.  See 38 C.F.R. § 3.303(d).  That an 
injury occurred in service alone is not enough.  There must 
be chronic disability resulting from that injury.  If there 
is no showing of a resulting chronic disability 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).

As a general matter, service connection for a disability on 
the basis of the merits of such claim is focused upon (1) the 
existence of a current disability; (2) the existence of the 
disease or injury in service, and; (3) a relationship or 
nexus between the current disability and any injury or 
disease during service.  See Cuevas v. Principi, 3 Vet. App. 
542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).

Finally, in a claim for service connection, the ultimate 
credibility or weight to be accorded evidence must be 
determined as a question of fact.  The Board determines 
whether (1) the weight of the evidence supports the claim, or 
(2) the weight of the "positive" evidence in favor of the 
claim is in relative balance with the weight of the 
"negative" evidence against the claim: the appellant 
prevails in either event. However, if the weight of the 
evidence is against the appellant's claim, the claim must be 
denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Factual Background and Analysis

Service treatment records including a September 1991 
examination report and associated report of medical history 
are silent for any complaints of recurrent back pain.

In a September 2004 VA primary care note, the Veteran 
complained of low back muscle cramps at times.

In a December 2005 VA progress note, the Veteran complained 
of low back dull aching pain for a few weeks with ambulation 
or standing, and no definite radiation.  Upon examination, 
the examiner noted no tenderness, swelling, or warmth over 
the spine and negative straight leg raises bilaterally.  The 
examiner diagnosed low back pain.  

In a January 2006 VA physical therapy note, the Veteran 
complained of a 5/10 constant pain in her lower back whenever 
she is sitting and specifically during prolonged standing and 
walking.  On examination, the examiner found focal tenderness 
over bilateral multifidi muscles at L4-L5 bilaterally, range 
of motion of the spine within normal limits with decreased 
pain during increased lordosis, and negative straight leg 
raises.  

In a November 2006 VA primary care note, the Veteran 
complained of pain across the low back with bilateral 
radiation around flanks.  She stated she has a history of 
back pain but that this was different, and she had no history 
of injury.  The examiner diagnosed back pain and questionable 
back strain. 

Based upon the evidence of record, the Board finds that a low 
back disability is not shown to have developed as a result of 
an established event, injury, or disease during active 
service.  Evidence of a diagnosis of low back pain is first 
shown in 2005, more than twelve years after separation from 
active service.  In November 2006, there were diagnoses of 
back pain and questionable back strain, but to the extent 
that a low back disability has been diagnosed, there is no 
competent evidence of a nexus to service.  The Board also 
notes that the passage of many years between discharge from 
active service and the medical documentation of a claimed 
disability is a factor that tends to weigh against a claim 
for service connection.  See Maxson v. Gober, 230 F.3d 1330, 
1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 
(1992).  Significantly, the record also includes no competent 
medical opinion establishing a nexus or medical relationship 
between current low back pain diagnosed post-service and 
events during the Veteran's active service, and neither the 
Veteran nor her representative have presented, identified, or 
alluded to the existence of, any such opinion.  
The only other evidence in support of the Veteran's claim are 
her own statements.  Lay assertions may serve to support a 
claim for service connection by supporting the occurrence of 
lay-observable events or the presence of disability or 
symptoms of disability subject to lay observation.  38 
U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. 
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. 
Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing 
lay evidence as potentially competent to support presence of 
disability even where not corroborated by contemporaneous 
medical evidence).  Although the Veteran is competent to 
report that she has experienced a low back disorder since 
military service due to an injury sustained in service, the 
evidence fails to support her recollections.  Most 
significantly, as noted above, service treatment records are 
negative for findings of or treatment for any spine disorder 
and a low back disorder is not shown until many years after 
discharge from service.

While the Veteran may sincerely believe that her present low 
back pain was either incurred or aggravated during service, 
she is not a licensed medical practitioner and she is not 
competent to offer opinions on questions of medical causation 
or diagnosis.  Grottveit, 5 Vet. App. 91; see also Espiritu, 
2 Vet. App. 492.  Consequently, the Board finds that 
entitlement to service connection for low back pain is not 
warranted.

When all the evidence is assembled VA is then 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.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 
F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the 
evidence is against the Veteran's claim.


ORDER

Entitlement to service connection for a low back disability 
is denied. 


REMAND

The Veteran contends she is entitled to service connection 
for residuals of a broken right index finger which occurred 
while in active service.  

Although, service treatment records including a September 
1991 examination report is silent for any upper extremity 
abnormalities, in her September 1991 report of medical 
history, the Veteran indicated a history of broken bones. 

In a September 2004 VA primary care note, the Veteran 
reported a history of a right index finger fracture in 1991.  
She complained of off and on right index finger discomfort 
with mild swelling.  Upon physical examination, the examiner 
found mild tenderness over the right second 
metacarpophalangeal joint and no warmth or definite swelling.

As the Veteran has current findings of a right index finger 
disability and complaints of a broken bone in service, a VA 
examination is necessary to determine if the Veteran has a 
chronic right finger disability and, if so, if that 
disability is attributable to service.  The VA will provide a 
medical examination or obtain a medical opinion based upon a 
review of the evidence of record if the VA determines it is 
necessary to decide the claim.  See 38 C.F.R. § 3.159(c)(4) 
(2009).  Accordingly, the AMC/RO should arrange for the 
Veteran to undergo a VA examination to determine the nature 
and etiology of her claimed residuals of fractured right 
index finger.

In a February 2007 statement, the Veteran asserted that she 
broke her finger in the field in Seoul, South Korea.  She 
reported she was taken to the hospital and that she also went 
to sick call in Fort Bragg and Tongtashan, South Korea.  She 
did not indicated when this injury occurred.  As additional 
service treatment records may be available, to include sick 
call records for Fort Bragg, the AMC/RO should attempt to 
obtain any additional service treatment records concerning 
the Veteran's right index finger.  

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should obtain all in-
service and VA treatment records 
identified by the Veteran, to include sick 
call records from Fort Bragg.  If 
necessary, the AMC/RO should clarify with 
the Veteran the date of her right index 
finger injury, and the dates of treatment.  
All attempts to procure records should be 
documented in the file.  If the AMC/RO 
cannot obtain records identified by the 
Veteran, a notation to that effect should 
be inserted in the file.  The Veteran and 
her representative are to be notified of 
unsuccessful efforts in this regard, in 
order to allow the Veteran the opportunity 
to obtain and submit those records for VA 
review.

2.  The Veteran should be afforded a VA 
examination to determine if the Veteran has 
residuals of a broken right index finger, 
and, if so, the etiology of that 
disability.  All indicated tests and 
studies are to be performed, and a 
comprehensive medical history is to be 
obtained.  Prior to the examination, the 
claims folder and a copy of this remand 
must be made available to the physician for 
review of the case.  A notation to the 
effect that this record review took place 
should be included in the report of the 
physician.  

Following a review of the claims folder, 
including the service treatment records, 
and after examining the Veteran's right 
index finger, and applying sound medical 
principles, the physician is to provide an 
opinion regarding whether it is at least as 
likely as not (50 percent probability or 
greater), that any right index finger 
disability was caused by or incurred in 
active service.  Sustainable reasons and 
bases for the opinion are to be provided.  

3.  The Veteran must be given adequate 
notice of the date and place of any 
requested examination.  A copy of all 
notifications, including the address where 
the notice was sent must be associated with 
the claims folder.  The Veteran is to be 
advised that failure to report for a 
scheduled VA examination without good cause 
shown may have adverse effects on her 
claim.

4.  After completion of the above and any 
additional development deemed necessary, 
the issue on appeal should be reviewed with 
consideration of all applicable laws and 
regulations.  If the benefit sought on 
appeal remains denied, the Veteran and her 
representative should be furnished an 
appropriate supplemental statement of the 
case (SSOC) and be afforded the opportunity 
to respond. Thereafter, the case should be 
returned to the Board for appellate review.

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).



____________________________________________
K. J. ALIBRANDO
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs