Citation Nr: 0410401 Decision Date: 04/22/04 Archive Date: 04/30/04 DOCKET NO. 02-21 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic low back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.A. Howell, Counsel INTRODUCTION The veteran served on active duty from October 1989 to October 1992, March 1994 to February 1995, and March to August 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the claim on appeal. As a procedural matter, it appears that the veteran may have attempted to raise an issue related to a respiratory disorder in his initial claim for compensation. Further, in December 2002 correspondence, he asserted that he was appealing claims for Persian Gulf War syndrome and shin splints. Since none of these issues have been adjudicated at the RO, they are not before the Board at this time. If the veteran desires to pursue these issues, he should do so with specificity at the RO. In addition, the RO issued a statement of the case in March 2004 on the issue of entitlement to an increased rating for a cervical spine disability. The veteran was informed that he needed to file a formal appeal in order to complete his appeal. No formal appeal has been filed. Therefore, the Board does not have jurisdiction of this issue. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of the claim and has notified him of the information and evidence necessary to substantiate his claim. 2. In-service complaints of low back pain in 1990, during the first of his three periods of active duty, are shown to have been acute and transitory, and resolved without continuing residuals. 3. Post-service medical evidence is negative for residuals of a lumbosacral strain or any chronic low back disorder. CONCLUSION OF LAW The veteran is not shown to have any current low back disorder. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002); 38 C.F.R. § 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the relevant regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2003). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2003). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2003). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After a review of the claims file, the Board finds that the claim for service connection for a low back disorder must be denied. First, service medical records are negative for a chronic low back disorder. Of note, in October 1989, the veteran complained of a three-day history of low back pain after physical training. The clinical assessment was muscle strain and he was treated with Motrin and a heating pad. In June 1990, the veteran complained of a sore back and shoulder pain and reported that he was injured after swinging a hammer. Physical examination revealed normal range of motion. The clinical assessment was "r/o [rule/out] stressed muscles." Ben Gay and a heating pad were ordered. He was told to return if the problem persisted. Three days later, he returned complaining of being sore after playing baseball over the weekend. Physical examination showed that his back was still sore but without any problems. The clinical assessment was "r/o sore muscles." He was told to continue with the heat and Ben Gay. There are no other complaints associated with the veteran's low back during military service. In denying the claim, the Board is particularly persuaded by the absence of complaints related to the low back during the veteran's remaining first period of active duty - which lasted another two years after his June 1990 treatment. In addition, the Board notes that he served two additional periods of active duty - from 1994- 1995 and again in 1998 - without any reported back problems. Significantly, in a March 1997 enlistment examination, he self- reported no "recurrent back pain" in a Report of Medical History. Further, the clinical evaluation of his spine was normal at that time. In addition, in multiple Medical Prescreening Forms, dated in August 1989 (pre-dating the June 1990 injury), March 1997 and February 1998 (both post-dating the June 1990 complaints), he specifically answered "no" to the questions of back trouble, painful or trick joints or loss of movement of joints, impaired use of arms, legs, hands feet, or having any injury or illness. The Board finds this persuasive evidence that he had no complaints related to a low back disorder during his subsequent periods of active duty. Also, it is noted that the veteran sustained an injury to his cervical spine during his final period of active duty (in 1998). He is separately service-connected for this condition. Nonetheless, in a May 1998 Medical Board Proceeding regarding his neck disability, he denied any prior musculoskeletal history. In addition, he self-reported that he had no "recurrent back pain" in the June 1998 Report of Medical History. Further, his June 1998 separation examination revealed a normal clinical evaluation of his lower extremities. This indicates to the Board that the veteran had no complaints regarding low back problems during his final period of active duty. Therefore, the Board concludes that there was no chronic low back disorder shown in military service. Next, post service medical evidence is completely negative for complaints of, treatment for, or diagnosis of a current low back disorder. Of note, outpatient treatment records reveal on-going complaints related to the veteran's neck disability but they are devoid of low back symptomatology. In addition, in a November 2003 VA examination, he complained of, among other things, lower back pain since 1990; however, the examination was essentially normal (normal range of motion, and no pain, stiffness, weakness, or muscle spasm shown). The examination focused primarily on the veteran's neck complaints and the clinical impression did not include a reference to a low back disorder. As noted above, service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "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). In this case, the service medical records are negative for a chronic low back disorder. Further, post- service evidence is negative for a current disability related to the low back. To the extent that the veteran may be experiencing subjective complaints of pain in the low back, the Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), aff'd in part, vacated and remanded in part on other grounds, 259 F.3d 1356 (Fed. Cir. 2001). Inasmuch as there is no medical evidence establishing the presence of a chronic low back disorder, the preponderance of the evidence is against the claim and the claim must be denied. In denying the appellant's claim, the Board has considered the Veterans Claims Assistance Act of 2000 (VCAA), which, among other things, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The law also eliminated the concept of well- groundedness and is applicable to all claims filed on or after the date of enactment or those filed before the date of enactment but not yet final as of that date. 38 U.S.C.A. § 5103A (West 2002). Additionally, in August 2001, VA issued regulations implementing the provisions of VCAA "to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits." In this case, VA's duties have been fulfilled to the extent possible with regard to the issue decided in this decision. First, VA must now notify the appellant of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim, and indicate which portion of that information and evidence, if any, is to be provided by the appellant and which portion, if any, the Secretary will attempt to obtain on behalf of the appellant. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Next, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in that endeavor. 38 U.S.C.A. § 5103A (West 2002). The final rule implementing the VCAA was published on August 29, 2001. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). These regulations, likewise, apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by the VA as of that date, with the exception of the amendments to 38 C.F.R. § 3.156(a) relating to the definition of new and material evidence and to 38 C.F.R. § 3.159 pertaining to VA assistance in the case of claims to reopen previously denied final claims (the second sentence of § 3.159(c) and § 3.159(c)(4)(iii)), which apply to any claim to reopen a finally decided claim received on or after August 29, 2001. See 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). In March 2001, the RO notified the veteran about his rights under the VCAA and informed him of what evidence he needed to submit in support of his claim. He was told what evidence had been considered, where to send the evidence, and that VA would help him obtain evidence. In September 2002, the RO provided him with a Statement of the Case which set forth all pertinent regulations, and also included the new duty to assist provisions of 38 C.F.R. § 3.159. He has also undergone a VA examination specifically to address the issue on appeal, and VA and private medical evidence has been associated with the claims file. Further, he requested and was scheduled for a personal hearing but later canceled the hearing request. In addition, he asserted that VA should locate and obtain all missing records prior to adjudicating his claim. However, it is not clear to the Board what records are missing. It is noted that extensive service medicals are associated with the claims file. Moreover, multiple VA and private post-service medical records are of records, including medical evidence from three (3) different VA medical facilities. It appears to the Board that a full compliment of service medical records and post-service medical evidence is associated with the claims file. The veteran has offered nothing more than a generalized complaint that records are missing. As such, the Board finds that a remand under these circumstances is not necessary. In view of the foregoing, the Board finds that all reasonable efforts to secure and develop the evidence that is necessary for an equitable disposition of the claim on appeal have been made by the agency of original jurisdiction. VA has substantially met the requirements of the VCAA. Every possible avenue of assistance has been explored, and the veteran has had ample notice of what might be required or helpful to his case. Therefore, the Board finds that the mandates of the VCAA have been satisfied. The Veterans Claims Court decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004) held, in part, that a VCAA notice consistent with 38 U.S.C. § 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, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Although the VCAA notice letter that was provided to the appellant does not contain the "fourth element," the Board finds that the appellant was otherwise fully notified of the need to give to VA any evidence pertaining to his claim. As noted above, he was informed of his due process rights by letter dated in March 2001 and was provided with the provisions of the new law in a September 2002 Statement of the Case. All the VCAA requires is that the duty to notify be satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In this case, because each of the four content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the appellant covering all content requirements is harmless error. In this case, the RO initially adjudicated the claim prior to issuing a VCAA letter. However, after the veteran was notified of his due process rights under the VCAA in March 2001, the RO readjudicated the claim. In Pelegrini, supra, the Veterans Claims Court discussed the statutory requirement in 38 U.S.C.A. § 5103(a) that VCAA notice be sent to a claimant before the initial adjudication of his claim. The Court in Pelegrini acknowledged that VA could show that the lack of a pre-decision notice by the RO was not prejudicial to the appellant. See 38 U.S.C. § 7261(b)(2); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004) (There is no implicit exemption for the notice requirements contained in 38 U.S.C. § 5103(a) from the general statutory command set forth in section 7261(b)(2) that the Court shall "take due account of the rule of prejudicial error.") Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error inasmuch as the case was thereafter readjudicated by the RO and a statement of the case was provided to the veteran. Therefore, any defect in the timing of the VCAA notice resulted in no error that was prejudicial to the veteran. ORDER Service connection for a chronic low back disorder is denied. ____________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: * Appeal to the United States Court of Appeals for Veterans Claims (Court) * File with the Board a motion for reconsideration of this decision * File with the Board a motion to vacate this decision * File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: * Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2