Citation Nr: 1134835 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 07-25 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, spouse ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from June 1954 to July 1957; and from June 1958 to May 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in December 2009 and January 2011 for further development. The Veteran presented testimony at a Board hearing in October 2009. A transcript of the hearing is associated with the Veteran's claims folder. The issues of entitlement to service connection for a leg disability, knee disabilities, and ankle disabilities have been raised by the record. Specifically, the Veteran submitted a March 2011 correspondence in which he stated that his leg has caused him pain for decades and that disabilities to his knees and ankle have been caused by his leg (which he alleges was broken during service). These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT A back disability was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service, to include as secondary to his service connected pelvis disability. CONCLUSION OF LAW A back disability was not incurred in or aggravated by the Veteran's active duty service, nor is it secondary to the Veteran's service connected pelvis disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all 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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with notice in May 2010, subsequent to the initial adjudication. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in an August 2010 supplemental statement of the case, following the provision of notice. The appellant has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the Veteran a physical examination in April 2011, obtained a medical opinion as to the etiology and severity of the disability, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the appellant has not contended otherwise. Service Connection The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 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). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet.App. 439 (1995). At his October 2009 Board hearing, the Veteran testified that in 1955, he was run over by a car while directing traffic. He stated that he incurred a pelvic fracture (for which he is already service connected) and that his back became problematic at that time as well. He testified that he has had continuous problems with his back since that time. He stated that he has undergone two operations on his back (the first one allegedly occurring in 1960). He testified that his doctors have told him that he has arthritis all throughout his body and that it all started with the fractured pelvis. He testified that he has had constant treatment for his back ever since he got out of service. The treatment has been through private physicians. Service treatment records confirm that in October 1955, the Veteran was struck by an automobile while acting as a road guard for a convoy. He sustained a fracture of the pelvis. A January 1956 examination report states that the Veteran's back was normal. The service treatment records also reflect that the Veteran underwent VA examinations in May 1957 and June 1958. Both examinations yielded normal findings with regards to the Veteran's back. Reports of Medical Histories completed by the Veteran in conjunction with the examinations do not contain any indications of a back disability. Post service evidence includes an April 1968 correspondence from Dr. J.W. in which he stated that the Veteran had an operation in November 1966 for the excision of a herniated nucleous pulposus incurred as a result of an on the job injury, and for which he was awarded some disability benefits. The Veteran underwent a VA examination in May 1990. He reported that he was struck by a motor vehicle in service; and incurred a fracture of the left inferior ramus of the pubic bone. The Veteran stated that he was not complaining of any unusual symptoms associated with being struck by an automobile in 1955. Instead, the Veteran reported that after being discharged from service, he felt a popping sensation in his back while attempting to move a 55 gallon drum of copper. The Veteran stated that he did not know whether the injury to the low back was the cause of his job-related accident, or if the pelvic fracture predisposed the Veteran to the injury. However, he did not describe any low back symptoms prior to the on the job accident. The examiner was unable to state that the back disability was due to his service connected pelvis fracture without resorting to mere speculation. Current treatment records reflect that the Veteran underwent x-rays in March 2011. They showed evidence of a previous laminectomy from L3 to L5. There were no acute bone changes. Post service treatment records fail to contain a competent medical opinion attributing his back disability either to service or secondary to his service connected pelvis fracture. Pursuant to the Board remand, the Veteran underwent a VA examination in April 2011. The examiner reviewed the claims file in conjunction with the examination. She noted that the Veteran incurred a fracture of the inferior pubis ramus on the left; and that the Veteran's May 1957 separation examination was normal with regards to the Veteran's back. She noted that he enlisted in the Navy in June 1958; and that he was discharged in May 1959 due to motion sickness. The Veteran once again reported that he was injured in October 1955 when he was hit by a car; and that he has been having trouble with his back ever since. He once again stated that he underwent back surgery in 1960 for a pinched nerve on the left side. He said that he had a Workers Compensation claim take care of it; but he was later told that he should have had the Army take care of it. He reported that he managed okay for a while and that he got shots in his back. After a thorough examination, the examiner concluded that it is less likely than not that the Veteran's low back disability was the result of, or was permanently aggravated by, any event in service or within one year of service (including the 1955 in-service injury). She determined that it is at least as likely as not that the disability is the result of his work injury (for which he received workers compensation) and was not caused by or worsened by an already service-connected disability. As noted above, the Veteran testified that he underwent back surgery in 1960. This alleged surgery would have preceded the Veteran's on the job injury. The Board remanded the claim, in part, so that the Veteran would have an opportunity to provide medical evidence of the alleged 1960 surgery. The Veteran has not produced any such evidence. Instead, the evidence reflects that the Veteran fractured his pelvis; but did not incur any injury to his back. Likewise, the medical evidence does not support the Veteran's contention that he has had problems with (or sought treatment for) his back in conjunction with the October 1955 accident. Instead, examinations in January 1956, May 1957, and June 1958 all yielded normal findings with regards to the Veteran's back. Moreover, the Veteran completed Reports Medical Histories in conjunction with these examinations; and he failed to indicate a back disability. It is significant that the service treatment records are quite detailed as to reporting the medical problems resulting from the accident, but there is no report of any back problems. These are precisely the records where it would be reasonably expected that they would be documented. The lack of any such reference to back complaints or clinical abnormalities is probative evidence against a finding that there was any back injury associated with the accident. The Board recognizes that the Veteran is competent to report symptoms he has experienced. However, the Veteran's current statements and testimony regarding back pain since the accident are simply inconsistent with the contemporaneous evidence. The Board does not find the Veteran's testimony in this regard to be credible. The Veteran's inservice accident injuries were thoroughly medically evaluated and there was no report of any abnormal back findings. Moreover, the Veteran did not mention any back complaints although he had more than ample opportunity to do so at that time. Further, the Veteran did not even refer to any back problem when he filed claims for VA benefits in 1959 and 1963 although it is reasonable to expect that he would have if he actually he believed he was suffering from a back disorder related to service. All of these inconsistencies diminish the credibility of the Veteran's current assertions regarding a continuity of symptoms since service. After weighing all of the evidence, the Board finds that the preponderance of such evidence weighs against the claim. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for serviced connection for a back disability must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER The appeal is denied. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs