Citation Nr: 0712148 Decision Date: 04/26/07 Archive Date: 05/08/07 DOCKET NO. 04-11 293 ) 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 a psychiatric disability, claimed as a nervous condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran had active service from September 1956 to June 1957. This matter comes before the Board of Veterans' Appeals (Board) from a July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In that decision, the RO denied service connection for a low back disability and a nervous condition. The record reflects a July 2006 claim for service connection for a neck condition. This claim has not yet been adjudicated. Therefore, the Board refers this issue to the RO for appropriate action. The issue of service connection for a low back disability 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. FINDING OF FACT The veteran does not currently have a diagnosis of a chronic psychiatric disability. CONCLUSION OF LAW A chronic psychiatric disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Further regarding notice, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Regarding VA's duty to inform the veteran of the evidence needed to substantiate his claim, the RO notified him of the information and evidence needed to establish entitlement to service-connection in correspondence dated June 2002 by informing him of the evidence he was required to submit, including any evidence in his possession, and the evidence that the RO would obtain on his behalf. Because service- connection has been denied, any question as to the appropriate disability rating or effective date is moot, and there can be no failure-to-notify prejudice to the veteran. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding the duty to assist the veteran in obtaining evidence in support of his claim, the RO obtained his service, private, and VA medical records. Moreover, the claims file contains the veteran's own statements in support of his claim, to include testimony provided at a January 2003 personal hearing before the RO. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. Further regarding the duty to assist, it is noted that the veteran was not afforded a VA examination in connection with his claim. In this regard, the law holds that VA will provide a medical examination which includes a review of the evidence of record if VA determines it is necessary to decide the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2006). An examination is deemed "necessary" if the evidence of record (lay or medical) includes competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 U.S.C.A. §5103A(d)(2). In the present case, the evidence of record does not indicate the veteran has a current disability. As a consequence, an examination is not necessary here. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Discussion The Board has reviewed all of the evidence in the veteran's claims folder, which includes, but is not limited to: service, private, and VA medical records, and the veteran's lay statements in support of his claim. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. The Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, on the claim. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The veteran is claiming entitlement to service connection for a psychiatric disability. In order to establish service connection, three elements must be satisfied. There must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2006); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Again, the first question for consideration in evaluating a direct service connection claim is whether the competent evidence demonstrates a current disability. In the present case, current medical records do not reflect complaints of or treatment for a psychiatric disability. September 2001 VA treatment records indicate the veteran sought treatment for chronic pain and phantom pain. He reported no history of depression or psychosis. No psychomotor agitation or retardation was noted. The veteran's mood was euthymic and his affect appropriate. His physician diagnosed chronic pain and prescribed medication. More recent VA medical records dated in 2003 do not reflect complaints of or treatment for a psychiatric condition. Indeed the January 2003 regional office hearing transcript indicates that the veteran has not sought treatment for depression after service. Moreover, while depressive complaints are noted in the service medical records the veteran testified that he believes he is mentally fine and that the incident in service was "a period of depression." Based on the foregoing, an award of service connection is not justified here. Indeed, in the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching the above conclusion, the Board is cognizant of the fact that the veteran attempted to commit suicide in 1957, as indicated in his discharge examination. However, the absence of any complaints or treatment for a psychiatric disability since the veteran's separation from service in 1957 compel the conclusion that no current disability exists, precluding an award of the benefit sought on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a psychiatric disability is denied. REMAND The veteran claims entitlement to service connection for a low back disability. Service medical records reflect treatment for back strain in March 1957. The veteran's treating physician prescribed physical therapy and aspirin. An April 1957 notation indicates the veteran did not follow physical therapy, although it is unclear whether the veteran attended physical therapy two sessions. Aspirin-based pain medication was prescribed. The veteran was hospitalized for two weeks in January and February 1986 for treatment of acute lumbosacral strain, possible herniated nucleus pulposus, and degenerative disc disease at L-5 and S1. In February 1998 the veteran underwent surgery to treat herniated lumbar discs at L4-5 and L5-S1 on the left with large extruded free disc fragments and spinal stenosis at L4-5 and L5-S1. December 2002 VA treatment records reflect a diagnosis of degenerative disc disease of the lumbar spine. October 2003 medical records indicate the veteran continues to seek treatment for low back pain. Based on the above, VA has the duty to assist the veteran in the development of this claim by providing him with an opinion to determine whether a medical nexus exists between his current diagnosis of degenerative disc disease of the lumbar spine and his treatment for back strain during service. To ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim, the issue of service connection for a low back condition is REMANDED for the following development: 1. Schedule the veteran for a VA orthopedic examination to determine the nature, severity and etiology of any back disabilities. All diagnoses are to be noted. The examination report should include complete range of motion findings, and the examiner should comment as to whether there is any additional limitation of function due to factors such as pain, weakness, fatigability or incoordination. Following the objective examination, the examiner is requested to offer an opinion as to whether it is as least as likely as not (that is, probability of 50 percent or better) that any currently diagnosed low back condition is related to the back strain noted in service. If a causal relationship is found as to some, but not all, current diagnoses, then this should be specified. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. Any opinions should be accompanied by a clear rationale consistent with the evidence of record. 2. Upon completion of the above, readjudicate the issue on appeal and consider all evidence received since issuance of the most recent Statement of the Case. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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. 2005). ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs