Citation Nr: 0729224 Decision Date: 09/18/07 Archive Date: 10/01/07 DOCKET NO. 04-33 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for chronic inflammatory demyelinating polyneuropathy (CIDP). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from May 1966 to May 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. A chronic low back disorder was not present in service or manifested until years following the veteran's separation from active duty, and the veteran's current low back disability is not etiologically related to service. 2. CIPD was not present during service or manifested until years following the veteran's separation from active duty, and it is not etiologically related to service. CONCLUSIONS OF LAW 1. Low back disability was not incurred in or aggravated by active service, and the incurrence or aggravation of arthritis of the low back disability during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). 2. CIPD was not incurred in or aggravated by active service, and its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2005), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with the notice required under the VCAA, to include notice that he should submit all pertinent evidence in his possession, by letter mailed in February 2005, subsequent to its initial adjudication of the claims. In addition, he was provided appropriate notice concerning the effective-date and disability-evaluation elements of his claims in a letter mailed in May 2006. Although the veteran was not provided adequate notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The record does reflect that the RO readjudicated the claims after the receipt of all pertinent evidence. There is no indication in the record or reason to believe that any ultimate decision of the RO would have been different had complete VCAA notice been provided at an earlier time. Moreover, as explained below, the Board has determined that service connection is not warranted for either of the claimed disabilities. Consequently, no disability rating or effective date will be assigned, so the failure to provide timely notice with respect to those elements of the claim is clearly no more than harmless error. The Board also acknowledges that the veteran has not been afforded a VA examination in response to his claims but has determined that no such examination is required in this case because the medical evidence of record is sufficient to decide the claims and there is no reasonable possibility that such an examination would result in evidence to substantiate either claim. In this regard, the Board notes that any medical nexus evidence resulting from such an examination would necessarily be based on history provided by the veteran that the Board has determined, for the reasons discussed below, to be unreliable. The record reflects that the originating agency has obtained the veteran's service medical records and post-service treatment records. Neither the veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the veteran. Accordingly, the Board will address the merits of the veteran's claims. General Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis or an organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Low Back Disability The veteran contends that he incurred a low back disability during active duty service. Service medical records are negative for evidence of a low back disorder and the report of examination for discharge in March 1968 shows that the veteran's spine was found to be normal upon clinical examination. In addition, while the veteran has claimed that he was hospitalized in 1966 due to his low back disability, the Board notes that medical records from the William Beaumont Army Hospital show that the veteran received treatment in August 1966 for allergic laryngeal edema; no other condition was noted. Moreover, in his original claim for VA benefits, received in May 1980, the veteran claimed entitlement to non service-connected pension on the basis of a back injury sustained in May 1970. He made no reference to a service injury and did not allege that his back condition was connected to service. Although the post-service medical evidence of record shows that the veteran currently has a low back disability, there is no post-service medical evidence of a back disorder until several years after the veteran's discharge from service or of a nexus between the veteran's current back disability and his military service. In this regard, the Board notes that the medical evidence of record shows that the veteran has had numerous post-service low back injuries. In fact, the first instance of the veteran claiming that his low back condition originated during service was in October 2003, when he submitted his claim for service connection. While the veteran did report experiencing low back pain in 1968 during a period of hospitalization in August 1973, he did not relate it to his active duty service and all other private treatment records dating from the mid-1970s show that the veteran consistently reported that his low back disability and associated left leg pain and numbness began with a post-service injury. In the Board's opinion, the statements made by the veteran for compensation purposes 35 years following his discharge from service are not reliable as they are inconsistent with the history reported for clinical purposes that his back condition originated with a post-service injury in the 1970s. The evidence of a nexus between the veteran's current back disability and his military service is limited to the veteran's own statements, which as noted above, the Board has found to be unreliable. In any event, the veteran's statements are not competent evidence of the alleged nexus since laypersons, such as the veteran, are not qualified to render an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, the Board must conclude that the preponderance of the evidence is against the claim. CIDP The veteran claims that his CIPD was incurred as a result of his active duty service. Service medical records are negative for evidence of this disorder, and the report of examination for discharge in March 1968 shows that the veteran's upper and lower extremities and his neurologic status were found to be normal on clinical evaluation. Although the post-service medical evidence of record shows that the veteran currently has CIPD, there is no post-service medical evidence of this disorder until many years after the veteran's discharge from service or of a nexus between the this disorder and the veteran's military service. In this regard, the Board notes that the veteran was initially diagnosed with CIPD in January 2003, more than 30 years after his separation from active duty. While the veteran was treated for pain and numbness of his left leg prior to being diagnosed with CIPD, the earlier symptoms were attributed to his low back disability, which, as noted above, is not entitled to service connection. In any event, the record contains no medical evidence linking the veteran's CIPD to his military service. In essence, the evidence of a nexus between the veteran's CIPD and his military service is limited to the veteran's own statements. As noted above, this is not competent evidence of the alleged nexus since laypersons are not qualified to render an opinion concerning medical causation. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for CIPD is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs