judge_norm: R F WILLIAMS

condition: gi

text:
Citation Nr: 0919000
Decision Date: 05/20/09    Archive Date: 05/26/09

DOCKET NO.  02-10 078	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California

THE ISSUE

Entitlement to service connection for a gastrointestinal
disorder.

REPRESENTATION

Veteran represented by:	California Department of
Veterans Affairs

ATTORNEY FOR THE BOARD

E. Pomeranz, Counsel

INTRODUCTION

The Veteran had active military service from July 1969 to
September 1971.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal of an October 2000 rating action by the
Department of Veterans Affairs (VA) Regional Office (RO)
located in Los Angeles, California.  The Veteran currently
resides within the jurisdiction of the Oakland, California
VARO.

In the October 2000 rating decision, the RO found, in
pertinent part, that new and material evidence had not been
submitted to reopen a previously final decision regarding
service connection for a stomach condition (gastrointestinal
disorder).  In a March 2002 statement of the case, however,
the RO found that new and material evidence had been
submitted, and therefore, reopened the claim.

The Veteran testified before a Board member in August 2003.

In a June 2004 decision, the Board granted a claim for
service connection for bilateral hearing loss, but remanded
the claim for service connection for a gastrointestinal
disorder.  It was noted that the claim for a gastrointestinal
disorder had previously been denied and, based on the actions
directed in this decision and the styling of the issue, the
Board implicitly reopened the Veteran's claim for service
connection for a gastrointestinal disorder.  See Jackson v.
Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board
does not have jurisdiction to review the claim on a de novo
basis in the absence of a finding that new and material
evidence has been submitted).

In an April 2008 remand, the Board informed the Veteran that
the Veterans Law Judge (VLJ) that conducted the August 2003
hearing was no longer employed by the Board.  Consequently,
in February 2008, the Board asked the Veteran whether he
desired to have a new Board hearing.  See 38 C.F.R. � 20.707.
He responded in the affirmative, requesting a hearing before
a Board VLJ at the RO (i.e., a Travel Board hearing).  Thus,
the Board remanded this case and directed the RO to schedule
the Veteran for a Travel Board hearing in conjunction with
his claim for service connection for a gastrointestinal
disorder.  A letter from the RO to the Veteran, dated in
January 2009, shows that at that time, the RO had scheduled
the Veteran for a hearing before the Traveling Section of the
Board in March 2009.  However, prior to the scheduled Travel
Board hearing, the Veteran submitted a VA Form 21-4138,
Statement in Support of Claim, in which he indicated that he
wished to cancel his Travel Board hearing.  Thus, the
Veteran's hearing request is deemed withdrawn.

In March 2008, the Veteran, through his representative,
submitted additional evidence, VA Medical Center (VAMC)
outpatient treatment records dated from January 2005 to
August 2007, and waived the right to have the evidence
initially considered by the RO.  38 C.F.R. � 20.1304(c).

Pursuant to a June 2004 Board decision, the RO granting
service connection for bilateral hearing loss in a December
2004 rating action.  A noncompensable disability rating was
assigned, effective from March 3, 2000, for the Veteran's
service-connected bilateral hearing loss.  The appellant
disagreed with the evaluation and filed a notice of
disagreement (NOD) in April 2005.  A statement of the case
(SOC) was issued in January 2006.  However, the Veteran did
not file a timely substantive appeal.

By a March 2007 rating decision, the RO denied the Veteran's
claim for an increased (compensable) rating for bilateral
hearing loss.  The Veteran filed an NOD in February 2008 and
an SOC was issued in September 2008.  However, there is no
indication from the information of record that the Veteran
filed a substantive appeal (VA Form 9).  Accordingly, this
issue is not before the Board for appellate consideration.
However, the Board observes that in a March 2009 VA Form 21-
4138, Statement in Support of Claim, the Veteran again raised
the issue of entitlement to an increased (compensable) rating
for service-connected bilateral hearing loss.  This issue has
not been developed for appellate consideration and is
referred to the RO for appropriate action.

FINDINGS OF FACT

1.  While the service treatment records show that the Veteran
was evaluated on numerous occasions for gastrointestinal
symptomatology, a chronic gastrointestinal disease was not
diagnosed; his separation examination was negative for any
pertinent abnormal findings and there is no post-service
medical evidence of a gastrointestinal disorder until more
than 25 years after his discharge from service.

2.  There is medical evidence showing various
gastrointestinal disorders since 1997, to include colon
polyps, diverticulitis, irritable bowel syndrome, and GERD;
however, there is competent evidence that links any of these
disorders to service.

CONCLUSION OF LAW

A chronic gastrointestinal disorder, to include colon polyps,
diverticulitis, irritable bowel syndrome, and GERD, was not
incurred in or aggravated by active military service.  38
U.S.C.A. �� 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp.
2008); 38 C.F.R. �� 3.102, 3.159, 3.303 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The enactment of the VCAA, codified at 38 U.S.C.A. �� 5102,
5103, 5103A, 5107 (West 2002), significantly changed the law
prior to the pendency of this claim.  VA has issued final
regulations to implement these statutory changes.  See 38
C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2008).  The VCAA
provisions include an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits, and they redefine the obligations of
VA with respect to the duty to assist the veteran with the
claim.  In the instant case, the Board finds that VA
fulfilled its duties to the Veteran under the VCAA.

Duty to Notify

VA has a duty to notify the veteran of any information and
evidence needed to substantiate and complete a claim.  38
U.S.C.A. �� 5102, 5103.  The Board concludes that the January
2002, July 2004, and July 2006 letters sent to the Veteran by
the RO adequately apprised him of the information and
evidence needed to substantiate the claim.  The RO thus
complied with VCAA's notification requirements.

In order to meet the requirements of 38 U.S.C. � 5103(a) and
38 C.F.R. � 3.159(b), VCAA notice must: (1) inform the
claimant about the information and evidence necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; and
(3) inform the claimant about the information and evidence
the claimant is expected to provide.  Beverly v. Nicholson,
19 Vet. App. 394, 403 (2005) (outlining VCAA notice
requirements).

Additionally, during the pendency of this appeal, on March 3,
2006, the Court of Appeals for Veterans' Claims (Court)
issued a decision in Dingess v. Nicholson, 19 Vet. App. 473,
484, 486 (2006), which held that the VCAA notice requirements
of 38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b) apply to
all five elements of a service connection claim.  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.  The Court held that upon
receipt of an application for a service-connection claim, 38
U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b) require VA 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.  Id., at 486.  This notice must also inform the
veteran that a disability rating and an effective date for
the award of benefits will be assigned if service connection
is granted.  Id.

The Board finds that VA has met these duties with regard to
the claim adjudicated on the merits in this decision.  There
is no issue as to providing an appropriate application form
or completeness of the application.  Written notice provided
in January 2002, July 2004, and July 2006 fulfills the
provisions of 38 U.S.C.A. � 5103(a).  That is, the Veteran
received notice of the evidence needed to substantiate his
claim, the avenues by which he might obtain such evidence,
and the allocation of responsibilities between himself and VA
in obtaining such evidence.  See Beverly, 19 Vet. App. at
394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103,
109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d
1328 (Fed. Cir. 2006).

The Board also recognizes that, according to Pelegrini v.
Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice
must "precede an initial unfavorable [agency of original
jurisdiction (AOJ)] decision on a service-connection claim."
In this case, the decision from which the appeal arises, that
is, the October 2000 rating decision, predated the effective
date of the VCAA in November 2000.  Thus, VCAA notice sent by
the RO to the Veteran in January 2002, July 2004, and July
2006 obviously could not comply with the express timing
requirements of the law as found by the Court in Pelegrini.
However, the Court has held that a supplemental statement of
the case that complies with applicable due process and
notification requirements constitutes a readjudication
decision.  Prickett v. Nicholson, 20 Vet. App. 370, 376-78
(2006) (validating the remedial measures of issuing fully
compliant VCAA notification and readjudicating the claim in
the form of a statement of the case to cure timing of
notification defect).  Here, the March 2007 supplemental
statement of the case satisfies a readjudication decision as
defined by the cited legal authority and it postdates the
above notice letters. Providing the veteran with adequate
notice followed by a readjudication "cures" any timing
problem associated with inadequate notice or the lack of
notice prior to an initial adjudication.

With respect to the Dingess requirements, the Veteran was
provided with notice of the laws and regulations governing
ratings and effective dates in the July 2006 letter, but such
notice was post-decisional.  See Pelegrini, supra.  Despite
this timing deficiency, the Board finds no prejudice to the
Veteran in proceeding with the issuance of a final decision.
See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the
Board addresses a question that has not been addressed by the
agency of original jurisdiction, the Board must consider
whether the Veteran has been prejudiced thereby).  In that
regard, as the Board concludes below that the preponderance
of the evidence is against the Veteran's claim for service
connection for a gastrointestinal disorder, to include colon
polyps, diverticulitis, irritable bowel syndrome, and GERD,
any questions as to the appropriate disability rating or
effective date to be assigned are rendered moot.  Such a lack
of timely notice did not affect or alter the essential
fairness of the RO's decision.

Duty to Assist

VA also has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim.  38 U.S.C.A. �
5103A(a) ("The Secretary shall make reasonable efforts to
assist a claimant in obtaining evidence necessary to
substantiate the . . . claim").  This duty includes
assisting the veteran in obtaining records and providing
medical examinations or obtaining medical opinions when such
are necessary to make a decision on the claim.  38 U.S.C.A. �
5103A(b), (c), (d) (setting forth Secretary's various duties
to claimant).

VA informed the Veteran of its duty to assist in obtaining
records and supportive evidence, and the Veteran in fact did
receive a VA examination in January 2007, which was thorough
in nature and provided a competent opinion addressing the
question of whether the Veteran had a gastrointestinal
disorder that was related to his period of active service.
The Board finds that the medical evidence of record is
sufficient to resolve this appeal; the VA has no further duty
to provide an examination or medical opinion.  38 U.S.C.A. �
5103A(d) (West 2002); 38 C.F.R. � 3.159(c)(4) (2008).  See
also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

Based on the foregoing, it is the Board's determination that
the VA fulfilled its VCAA duties to notify and to assist the
Veteran, and thus, no additional assistance or notification
was required.  The Veteran has suffered no prejudice that
would warrant a remand, and his procedural rights have not
been abridged.  See Bernard v. Brown, 4 Vet. App. 384.

II.  Pertinent Law and Regulations

Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in line of duty.  38 U.S.C.A.
�� 1110, 1131; 38 C.F.R. � 3.303.

Service connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998)
(citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).
Where the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical status do not constitute competent medical evidence.
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).

Alternatively, the nexus between service and the current
disability can be satisfied by medical or lay evidence of
continuity of symptomatology and medical evidence of a nexus
between the present disability and the symptomatology.
38 C.F.R. � 3.303; see also, e.g., Voerth v. West, 13 Vet.
App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495
(1997).

A veteran is presumed in sound condition except for defects
noted when examined and accepted for service or where there
is clear and unmistakable evidence that the disability
existed prior to service and was not aggravated by service.
38 U.S.C.A. � 1111.  A pre-existing disease will be
considered to have been aggravated by active service where
there is an increase in disability during service, unless
there is a specific finding that the increase in disability
is due to the natural progression of the disease.  38
U.S.C.A. � 1153; 38 C.F.R. � 3.306.

III.  Factual Background

The Veteran's service treatment records show that in December
1968, he underwent a pre-induction examination.  At that
time, in response to the question as to whether he had ever
had or currently had frequent indigestion, or stomach, liver,
or intestinal trouble, he responded "no."  The examiner
stated that in August 1968, the Veteran was involved in an
automobile accident and underwent an exploratory laparotomy
and an appendectomy.  No drainage was found to the vital
organs.  The examiner noted that the Veteran still had
occasional "pain in old [sic]" and was able to work full
time.  No pertinent abnormal gastrointestinal findings were
noted at that time.

According to the Veteran's service treatment records, in
March 1970, the Veteran was treated for complaints of loss of
appetite.  At that time, he stated that for the past eight
months, he would vomit after eating and sometimes there was
blood.  He gave a history of an appendectomy in 1968
following an automobile accident.  The diagnosis was of
questionable intermittent bowel obstruction.  In June,
September, and October 1970, the Veteran was seen numerous
times for complaints of vomiting and abdominal pain.  In the
June 1970 evaluation, the Veteran's abdomen was soft with
slight tenderness.  There were no masses and bowel sounds
were "okay."  In December 1970, the Veteran gave an 18
month history of "vomiting ever since he came into the
service."  He stated that he also had a history of an
appendectomy.  The impression was to rule out peptic ulcer
disease.  The examiner also noted that a partial small bowel
obstruction secondary to adhesions need to be ruled out but
that he was doubtful that an obstruction was the problem.  A
subsequent UGI series was reported to be normal.  In March
1971, the Veteran was treated for complaints of stomach pain.
Upon physical examination, the Veteran's abdomen was soft
with no rebound (tenderness).  In September 1971, the Veteran
underwent an ETS examination.  At that time, his
gastrointestinal system was clinically evaluated as
"normal."

In September 1998, the Veteran filed his original claim for
service connection for a stomach condition.  At that time, he
submitted private medical records, dated from March 1997 to
August 1998, in support of his claim.  The records show that
in June 1997, the Veteran was treated for complaints of
stomach pain for the last five days.  The assessment was
GERD.  In March 1998 and July 1998, the Veteran was treated
for diarrhea and "stomach flu."  The assessment was viral
gastroenteritis.

In March 2000, the Veteran submitted private medical records,
dated from February 1997 to February 1999.  In February 1999,
the Veteran underwent a colonoscopy to rule out colon
lesions, polyps, or bleeding site.  The surgeon stated the
Veteran had been receiving treatment for rectal bleeding and
had a history of diverticulitis.  The Veteran had a
colorectal abscess for which he was operated upon more than
10 years ago.  Following the colonoscopy, the surgeon
reported that the Veteran had diverticular pouches in the
sigmoid colon and two polyps.  A sigmoid biopsy was taken and
reported to show an early adenomatous polyp which was benign.

In August 2002, the RO received private medical records,
dated from October 1997 to December 2000.  The records show
that in March 2000, the Veteran underwent a physical
examination that was conducted by P.M.S., M.D.  Dr. S. stated
that the Veteran had a history of colon polyps.  In regard to
the Veteran's surgical history, he had undergone an
appendectomy and surgery for a perianal abscess.  Following
the physical examination, Dr. S. diagnosed the Veteran with
colon polyps and diverticulosis.

VAMC outpatient treatment records, dated from August 2003 to
September 2005, include a computerized problem list.  The
list includes irritable bowel syndrome and a history of
colonic polyps.

In January 2007, the Veteran underwent a VA examination.  At
that time, the examiner stated that the Veteran had a history
of an appendectomy.  Following the appendectomy, the Veteran
had episodes of nausea and vomiting which continued through
his tour of duty.  He underwent some GI studies which were
unremarkable.  The Veteran had some vomiting of blood.  He
never had a history of a bleeding ulcer.  According to the
Veteran, he had intermittent pain at the scar site.  He had
generally midepigastric abdominal pain which was almost
completely ameliorated with his medication.  The Veteran did
not have any recent episodes of gastrointestinal bleeding,
diarrhea, or melena.  The Veteran had a history of
intravenous drug use and heavy ethanol intake, quitting eight
years ago.  He also had a 10 year history of hepatitis C.  In
January 2005, the Veteran underwent an upper GI series in
order to find out if he had esophagitis.  The Veteran did not
have any obstruction of flow through the esophagus, and there
was no hiatal hernia or gastroesophageal reflux identified.
The duodenal bulb appeared normal and there were no ulcers
seen.  Additional medical history included diabetes mellitus,
type II.  Upon physical examination, there was a right
paramedian scar which was well healed.  There was no
erythema, wound drainage, or evidence of dehiscence.  There
was no ventral hernia on examination at the scar site.  On
deep palpation, there was no abdominal mass noted.  The
pertinent assessment was acute abdomen, appendectomy
performed in 1968 with no ventral hernia, and long history of
heartburn without reflux demonstrated on most recent upper GI
series.

In the January 2007 VA examination report, the examiner
stated that the Veteran had a history of abdominal surgery
for acute abdomen which turned out to be a ruptured appendix.
According to the examiner, the Veteran had not experienced
any residuals from the appendectomy in terms of intestinal
obstruction or ventral hernia or incisional hernia.  He did
have a significant scar.  The Veteran's most recent upper GI
did not suggest that he had a history of reflux esophagitis.
He did have a significant history of ethanol intake and
intravenous drugs and became hepatitis C positive.  He was on
a course of taking antiviral therapy which was discontinued
because of untoward effect.  The Veteran had no hernia.  He
was moderately obese and was without limitations secondary to
his abdominal operation.

VAMC outpatient treatment records, dated from January 2005 to
August 2007, show that in June 2007, show that in June 2007,
it was noted that the Veteran had a longstanding history of
heartburn.  He was directed to continue to take his
medication.

IV.  Analysis

Based on a thorough review of the record, the Board finds
that the preponderance of the evidence is against the
Veteran's claim for service connection for a gastrointestinal
disorder, to include colon polyps, diverticulosis, irritable
bowel syndrome, and GERD.  In this regard, although the
Veteran had undergone an exploratory laparotomy and
appendectomy in August 1968 prior to his enlistment, his
December 1968 pre-induction examination was negative for any
complications from such surgery (other than a scar) or any
other abnormal gastrointestinal findings.  Therefore, the
Veteran is presumed to have been in sound condition at entry,
at least with respect to any gastrointestinal problems.

During the Veteran's period of active service, he was treated
intermittently for complaints of abdominal pain and vomiting.
However, although certain diagnoses were considered,
including intermittent bowel obstruction and peptic ulcer
disorder, no actual diagnosis was confirmed.  In fact, a UGI
series was reported to be normal.  In addition, the Veteran's
September 1971 ETS (separation from service) examination was
negative for any abnormal gastrointestinal findings.

The first evidence of record of a gastrointestinal disorder
is in June 1997, over 25 years after the Veteran's separation
from the military.  With respect to negative evidence, the
Court has held that the fact that there was no record of any
complaint, let alone treatment, involving the veteran's
condition for many years could be decisive.  See Maxson v.
West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson
v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000), [it was
proper to consider the veteran's entire medical history,
including a lengthy period of absence of complaints]; see
also Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002)
["negative evidence" could be considered in weighing the
evidence].

According to private medical records, in June 1997, the
Veteran was diagnosed with GERD after experiencing stomach
pain for five days.  However, there is no medical evidence of
record which relates the Veteran's GERD to his period of
service.  In fact, in the January 2007 VA examination, the
examiner stated that a recent upper GI series actually showed
that the Veteran did not have any obstruction of flow through
the esophagus, and there was no hiatal hernia or
gastroesophageal reflux identified.  Thus, at the time of the
January 2007 VA examination, there was no evidence of GERD.

Private medical records also show that in March and July
1998, the Veteran was diagnosed with viral gastroenteritis
related to stomach flu.  Thus, the gastroenteritis was linked
to the Veteran's stomach flu, not to any remote incident of
his period of military service.

Private medical records further show that in February 1999,
after a colonoscopy, the surgeon reported that the Veteran
had diverticular pouches and two polyps.  In addition, in
March 2000, he was diagnosed with diverticulosis and colon
polyps.  However, there is no evidence of record which links
the Veteran's diverticulosis and colon polyps to his period
of active military service.  Moreover, given that the first
evidence of record of diverticulosis and colon polyps is in
February 1999, over 27 years after the Veteran's separation
from the military, this negative evidence also weighs against
a causal relationship.  See Maxson, supra.

The Board also notes that although it was reported in the
VAMC outpatient treatment records, dated from August 2003 to
September 2005, which the Veteran had irritable bowel
syndrome, there is no evidence of record which relates
irritable bowel syndrome to the Veteran's period of active
military service.

In this case, as stated above, the Veteran was presumed to
have been in sound condition at entry, at least with respect
to any gastrointestinal problems.  The Board recognizes that
he had a post-traumatic exploratory laparotomy and
appendectomy prior to his enlistment.  However, in the
January 2007 VA examination report, the examiner noted that
the Veteran had not experienced any residuals from the
appendectomy in terms of intestinal obstruction or ventral
hernia or incisional hernia.  Moreover, the examiner
diagnosed the Veteran with a long history of heartburn
without reflux demonstrated on the most recent upper GI
series.  With respect to heartburn, the Board notes that a
symptom, such as 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.  Sanchez-Benitez v. West, 13 Vet.
App. 282 (1999), appeal dismissed in part, and vacated and
remanded in part sub nom. Sanchez-Benitez v. Principi, 259
F.3d 1356 (Fed. Cir. 2001).

The Board again notes that complications of a pre-service
appendectomy were suspected during service, to include
intestinal obstruction.  However, no such disorder was ever
confirmed during that time or since service.  The only
competent opinion that addresses that question unequivocally
states that the Veteran does not have any current disability
due to the appendectomy.  As there is no current disability
that is due to the preservice surgery, it obviously follows
that there was no aggravation of any preexisting disorder
attributed to an appendectomy.  See 38 U.S.C.A. � 1153;
38 C.F.R. � 3.306.

In the instant case, the only evidence of record supporting
the Veteran's claim is his own lay opinion that he currently
has a gastrointestinal disorder that is related to his period
of military service.  In this regard, lay statements are
considered to be competent evidence when describing the
features or symptoms of an injury or illness.  Layno v.
Brown, 6 Vet. App. 465 (1994); see also Falzone v. Brown, 8
Vet. App. 398, 405 (1995).  However, the Veteran has not been
shown to possess the training or credentials needed to render
a diagnosis or a competent opinion as to medical causation.
See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)
(explaining in footnote 4 that a veteran is competent to
provide a diagnosis of a simple condition such as a broken
leg, but not competent to provide evidence as to more complex
medical questions.)  Therefore, this is not a case in which
the Veteran and his representative's lay beliefs alone can
serve to establish any association between the claimed
disability and his military service.  See Espiritu, supra;
Moray v. Brown, 5 Vet. App. 211 (1993).

In view of the foregoing, the Board concludes that the
preponderance of the evidence is against the claim for
service connection for a gastrointestinal disorder, to
include colon polyps, diverticulosis, irritable bowel
syndrome, and GERD.  As the preponderance of the evidence is
against the claim, the benefit-of-the-doubt doctrine is not
applicable.  38 U.S.C.A. � 5107(b); Ortiz v. Principi, 274
F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the
benefit of the doubt rule is inapplicable when the
preponderance of the evidence is found to be against the
claimant").

ORDER

Entitlement to service connection for a gastrointestinal
disorder, to include colon polyps, diverticulosis, irritable
bowel syndrome, and GERD, is denied.

____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: A BRYANT

disposition: denied

text:
Citation Nr: 0921000
Decision Date: 06/04/09    Archive Date: 06/16/09

DOCKET NO.  04-17 411	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas

THE ISSUE

Entitlement to service connection for a bilateral foot
disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Michael J. A. Klein, Associate Counsel

INTRODUCTION

The appellant served on active duty for training (ACDUTRA) in
the Army Reserves from September 1983 to November 1983.

This appeal comes to the Board of Veterans' Appeals (Board)
from a July 2003 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in North Little
Rock, Arkansas.

This case previously reached the Board in December 2006.  At
that time, the Veteran's service connection claim for a
bilateral foot disorder was remanded for further development.
The case has been returned to the Board for further appellate
consideration.

FINDINGS OF FACT

1.  There is competent evidence of diagnoses of bilateral
foot disorders.

2.  There is no competent evidence that relates the
appellant's current bilateral foot disorders to her ACDUTRA
service.

CONCLUSION OF LAW

The Veteran's bilateral foot disorders were not incurred in
or aggravated by service.  38 U.S.C.A. �� 101(21), (24),
1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2008);
38 C.F.R. �� 3.6, 3.102, 3.159, 3.303 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Duties to Notify and Assist

Review of the claims folder reveals limited compliance with
the Veterans Claims Assistance Act of 2000 (VCAA), 38
U.S.C.A. � 5100 et seq.  See 38 C.F.R. �� 3.102, 3.156(a),
3.159, 3.326(a).  The duty to notify was accomplished by way
of VCAA letters from the RO to the appellant dated in April
2003 and March 2007.  Those letters generally satisfied the
notification requirements of the VCAA consistent with
38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b) by: (1)
informing her about the information and evidence not of
record that was necessary to substantiate her service
connection claim; (2) informing her about the information and
evidence that the VA would seek to provide; and (3) informing
her about the information and evidence that she was expected
to provide.  See also Pelegrini v. Principi, 18 Vet. App.
112, 120-121 (2004) (Pelegrini II); Quartuccio v. Principi,
16 Vet. App. 183, 187 (2002).

The Board notes that for claims pending before the VA on, or
filed after, May 30, 2008, 38 C.F.R. � 3.159 was recently
amended to eliminate the 4th element requirement of
notification to a claimant that she may submit any evidence
in her possession that might pertain to the claim.  See 73
Fed. Reg. 23,353 (Apr. 30, 2008).  Here, the presence or
absence of notice of this element is of no consequence as it
is no longer required by law.

Furthermore, the March 2007 letter from the RO further
advised the appellant of the elements of a disability rating
and an effective date, which are assigned if service
connection is awarded.  Dingess v. Nicholson, 19 Vet. App.
473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483
F.3d 1311 (2007).

In a case involving a service connection claim related to
ACDUTRA or inactive duty for training (INACDUTRA) periods,
the RO is also required to provide VCAA notification relevant
to making such a claim.  In this case the appellant is only
making a claim for her single period of ACDUTRA; however, the
notice letters sent by the RO to the appellant were
insufficient in that they did not inform her of the elements
necessary for making a claim based on her period of ACDUTRA.
Nevertheless, the Board finds the insufficient notice
provided to the appellant is not prejudicial to her claim.

In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the
United States Court of Appeals for the Federal Circuit
(Federal Circuit Court) held that any error by the VA in
providing the notice required by 38 U.S.C. � 5103(a) and
38 C.F.R. � 3.159(b)(1), concerning any element of a claim,
is presumed prejudicial.  Further, the VA, not the appellant,
has the burden of rebutting this presumption by showing the
error was not prejudicial to the appellant in that it does
not affect the essential fairness of the adjudication.  To do
this, VA must demonstrate:  (1) that any defect was cured by
actual knowledge on the part of the claimant (see Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008) ("Actual knowledge is
established by statements or actions by the claimant or the
claimant's representative that demonstrate an awareness of
what was necessary to substantiate his or her claim"); (2)
that a reasonable person could be expected to understand from
the notice what was needed; or (3) that a benefit could not
have been awarded as a matter of law.  Additionally,
consideration should be given to "whether the post-
adjudicatory notice and opportunity to develop the case that
is provided during the extensive administrative appellate
proceedings leading to the final Board decision and final
Agency adjudication of the claim ... served to render any pre-
adjudicatory section 5103(a) notice error non-prejudicial."
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).

In this vein, the presumption of prejudice to the appellant
due to the content error in VCAA notice for her service
connection claim has been rebutted by evidence of actual
knowledge on the part of the appellant.  Specifically, the
appellant has argued in her claim that her bilateral foot
disorder was incurred during her ACDUTRA period.  See the
appellant's April 2003 claim, as well as her May and
September 2003 and February 2006 statements.  Furthermore,
the appellate record contains three Informal Briefs Of
Appellant In the Appealed Case dated in July 2004, November
2006, and February 2009, as well as statements by family and
friends in October 2003; all of which argue that her foot
condition was incurred during her ACDUTRA service.  The in-
service incurrence of the disability or disorder is the
required element of an ACDUTRA service connection claim.
Therefore, any content defect was cured by the appellant's
actual knowledge of the requirements for making an ACDUTRA
claim.

Moreover, a reasonable person should have known the
requirements for an ACDUTRA claim after this was provided in
the March 2007 letter.  Subsequently, a November 2008
supplemental statement of the case (SSOC) was issued.
Specifically, this document provided the appellant with a
citation to the pertinent laws and regulations governing an
ACDUTRA claim.  This document was sufficient to make the
reasonable person aware of the requirements for an ACDUTRA
claim.  Thus, the presumption of prejudice has been rebutted
by the evidence provided in the record.

With regard to the timing of VCAA notice, the Board sees that
the RO did not provide the appellant with all required VCAA
notice prior to the July 2003 adverse determination on
appeal.  But in Pelegrini II, the Court clarified that in
these situations the VA does not have to vitiate that
decision and start the whole adjudicatory process anew, as if
that decision was never made.  Rather, the VA need only
ensure the appellant receives (or since has received)
content-complying VCAA notice, followed by readjudication of
her claim, such that she is still provided proper due
process.  Id. at 120.  In other words, she must be given an
opportunity to participate effectively in the processing of
her claims.  The United States Court of Appeals for the
Federal Circuit (Federal Circuit Court) recently held that a
statement of the case (SOC) or SSOC can constitute a
"readjudication decision" that complies with all applicable
due process and notification requirements if adequate VCAA
notice is provided prior to the statement of the case (SOC)
or SSOC.  Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed.
Cir. 2007) (Mayfield IV).  As a matter of law, the provision
of adequate VCAA notice prior to readjudication "cures" any
timing problem associated with inadequate notice or the lack
of notice prior to an initial adjudication.  See also
Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, however, the RO provided additional VCAA notice in
November 2008, but did not go back and readjudicate the claim
by way of a subsequent SSOC.  Therefore, the timing defect in
VCAA notice was not rectified.  Despite this, the Court
recently held the failure of the claimant to submit
additional evidence following proper notification may
constitute a waiver of readjudication or render the error
harmless.  Medrano v. Nicholson, 21 Vet. App. 165, 173
(2007).  Here, the Veteran did not submit any additional
pertinent evidence in response to the VCAA notice provided in
the November 2008 SSOC.  Therefore, the absence of a
subsequent SSOC after these notices is not prejudicial
because the result of such a readjudication on exactly the
same evidence and law previously considered would be no
different than the previous adjudication.  Medrano, 21 Vet.
App. at 173.  It follows that a prejudicial error analysis by
way of Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) is
simply not warranted regarding the timing of the VCAA notice
provided.

In addition to notification, the VA is required to assist the
appellant in finding evidence to support her claim.  See 38
U.S.C.A. � 5103A (West 2002).  The RO has secured service
treatment records (STRs), private treatment records, and a VA
medical examination.  The appellant has submitted personal
statements, lay statements by family and friends, and private
medical evidence.

Additionally, the appellant indicated relevant private
medical records were held by the Arkansas Foot Clinic.  See
the appellant's statement of May 2003 and notice of
disagreement (NOD).  The RO requested the records identified
by the appellant from the Arkansas Foot Clinic in December
2003, for which the appellant provided the required
authorization.  However, the RO received a negative reply
from the Arkansas Foot Clinic in December 2003.  With this
response, the Board is satisfied that the RO has made
reasonable efforts to obtain these private medical records.
See 38 C.F.R. � 3.159(c)(1).  Therefore, the Board concludes
that the duty to assist the appellant in gathering
information to advance her claim has been met.

The Board is also satisfied as to substantial compliance with
its December 2006 remand directives.  Stegall v. West, 11
Vet. App. 268, 271 (1998).  The remand directed the RO to
provide Dingess notice, which was provided in the March 2007
VCAA notice letter.  The RO was also directed to obtain
complete service records regarding the appellant.  These were
obtained and attached to the appellant's case file.  Third,
as directed, the RO provided a VA medical examination to the
appellant in August 2007.  Finally, the RO readjudicated the
appellant's claim through an SSOC in September 2008.  Thus,
the Board's remand directives have been met.

Governing Laws for Service Connection

Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military, naval, or air service. See 38 U.S.C.A. �� 1110,
1131; 38 C.F.R. �� 3.303(a).  To show a chronic disease in
service requires a combination of manifestations sufficient
to identify the disease, and sufficient observation to
establish chronicity at the time.  If a condition noted
during service is not shown to be chronic, then generally, a
showing of continuity of symptomatology after service is
required for service connection.  See 38 C.F.R.
� 3.303(b).  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).

VA law provides that active military, naval, or air service
includes any period of ACDUTRA during which the individual
concerned was disabled or died from a disease or injury
incurred in or aggravated in line of duty.  ACDUTRA is,
generally, full-time duty in the Armed Forces performed by
reserves for training purposes.  38 C.F.R. � 3.6(c)(1).

VA law provides that active military, naval, or air service
includes any period of inactive duty training (INACDUTRA)
during which the individual concerned was disabled or died
from injury incurred in or aggravated in line of duty.  38
U.S.C.A. � 101(21), (24); 38 C.F.R. � 3.6(a), (d); Biggins v.
Derwinski, 1 Vet. App. 474, 477-78 (1991).  Active service
also includes a period of inactive duty training during which
an individual was disabled or dies from an acute myocardial
infarction, cardiac arrest, or cerebrovascular accident.  38
U.S.C.A. � 101(24). Service connection for a person on
inactive duty for training is permitted only for injuries,
not diseases, incurred or aggravated in line of duty.  See
Brooks v. Brown, 5 Vet. App. 484, 485 (1993).  The VA General
Counsel has held that it was the intention of Congress when
it defined active service in 38 U.S.C.A. � 101(24) to exclude
inactive duty training during which a member was disabled or
died due to non- traumatic incurrence or aggravation of a
disease process.  VAOPGCPREC 86-90. The Court has held that
VA service connection compensation presumptions do not apply
to ACDUTRA or INACDUTRA service. Biggins, 1 Vet. App. at 477-
78.

Service connection requires competent evidence showing:  (1)
the existence of a present disability; (2) the in-service
incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service -
the so-called "nexus" requirement.  Shedden v. Principi,
381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v.
Principi, 16 Vet. App. 110, 111 (2002).

In the absence of proof of a current disability, there can be
no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed.
Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)
(indicating service connection presupposes a
current diagnosis of the condition claimed).

Whether medical evidence or lay evidence is sufficient to
relate the current disorder to the in-service symptomatology
depends on the nature of the disorder in question.  Savage,
10 Vet. App. at 497; accord Jandreau v. Nicholson, 492 F.3d
1372, 1377 (Fed. Cir. 2007).

Disorders diagnosed after discharge may still be service
connected if all of the evidence, including pertinent service
records, establishes that the disorder was incurred in
service.  38 C.F.R. � 3.303(d); Combee v. Brown, 34 F.3d
1039, 1043 (Fed. Cir. 1994).

Competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer medical diagnoses, statements, or
opinions.  Competent medical evidence may also mean
statements conveying sound medical principles found in
medical treatises.  It also includes statements contained in
authoritative writings, such as medical and scientific
articles and research reports or analyses.  38 C.F.R.
� 3.159(a)(1).  Competent lay evidence means any evidence not
requiring that the proponent have specialized education,
training, or experience.  Lay evidence is competent if it is
provided by a person who has knowledge of the facts or
circumstances and conveys matters that can be observed and
described by a lay person.  38 C.F.R. � 3.159(a)(2).  In
essence, lay testimony is competent when it regards the
readily observable features or symptoms of injury or illness
and "may provide sufficient support for a claim of service
connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In Jandreau, the Federal Circuit Court rejected as "too
broad" the former proposition that competent medical
evidence is always required when the determinative issue
involves either medical etiology or a medical diagnosis.  492
F.3d at 1376-77.  Instead, lay evidence can be competent and
sufficient to establish a diagnosis of a condition when (1) a
layperson is competent to identify the medical condition,
(e.g., a broken leg), (2) the layperson is reporting a
contemporaneous medical diagnosis, or (3) lay testimony
describing symptoms at the time supports a later diagnosis by
a medical professional.  Id. at 1377 (footnote omitted).  For
example, a layperson would be competent to identify a
"simple" condition like a broken leg, but would not be
competent to identify a form of cancer.  Id. at 1377 n.4.

When a condition is capable of lay observation, the Board is
within its province to weigh that testimony and to make a
credibility determination as to whether the evidence supports
a finding of service incurrence sufficient to establish
service connection.  Barr, 21 Vet. App. at 310.  Although the
Board may weigh the absence of contemporaneous medical
evidence against the lay evidence in determining credibility,
it cannot determine that lay evidence lacks credibility
merely because it is unaccompanied by contemporaneous medical
evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006).

In determining whether service connection is warranted for a
disability, the VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the appellant prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied.  38 U.S.C.A. � 5107; 38 C.F.R.
� 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Analysis - Service Connection for a Bilateral Foot Condition

The first requirement for a service-connection claim is proof
that the appellant currently has the claimed disability.
Shedden v. Principi, 381 F.3d at 1167.  Considering this, the
August 2007 VA medical examination diagnosed the appellant
with degenerative joint disease (DJD) and the possibility of
"tenderness from... age-related osteoarthritis."  The
appellant was further diagnosed with "painful corns" by Dr.
M.C., D.P.M.  Both doctors noted a prior surgery.  Given this
evidence, the appellant has shown that she currently has two
bilateral foot conditions.

The second requirement for a service-connected disability is
evidence of an in-service occurrence or aggravation of the
injury.  Shedden, 381 F.3d at 1167.  The appellant's STRs
indicate that she was diagnosed and treated for bilateral
ankle pain with grade I swelling, and mild edema of both feet
in September 1983.  Therefore, there is evidence of an in-
service incident related to the appellant's current foot
disorders.

The third requirement for any service-connection claim is the
existence of a causal connection (nexus) between an in-
service event and the Veteran's current disability.  Shedden
v. Principi, 381 F.3d at 1167.  The appellant asserts that
her foot disorders began in, and were caused by, her service.
However, the Board finds that this is the type of
determination which requires medical skill or training, and
that the appellant has presented no evidence to show that she
is competent to make such a determination.  See Jandreau v.
Nicholson, 492 F.3d 1372. 1377 (Fed. Cir. 2007).
Furthermore, in the present case, there is competent medical
evidence that indicates that the appellant's current problems
are not related to the appellant's active service.  Routen
v. Brown, 10 Vet. App. 183, 186 (1997).  None of the private
records provided indicate that there is a direct connection
between the appellant's current disorders and her military
service.  Furthermore, the August 2007 VA medical examiner
stated that "[t]here was nothing that 190 days of military
service or boots could have done to cause the [appellant's]
hammertoe."  The VA examiner further stated "I see no
connection between her subjective complaints and her...
military service."  The appellant's corns were several times
diagnosed as having been "exacerbated by wearing poorly
designed or fitted shoes."  See private treatment record
provided by Dr. M.C., D.P.M.  Given the absence of competent
evidence of a connection between the appellant's service and
her current complaints, the Board cannot find that there is a
link between the appellant's foot disorders and her military
service.

A disorder may also be service connected if the evidence of
record reveals that the appellant currently has a disorder
that was present in service with continuity of symptomatology
demonstrated thereafter.  38 C.F.R. � 3.303(b); Savage v.
Gober, 10 Vet. App. 488, 495-97 (1997).  A demonstration of
continuity of symptomatology is an alternative method of
demonstrating the second and third elements of service
connection discussed above.  Savage, 10 Vet. App. at 495-496.
The appellant has stated that her foot disorder began during
her period of ACDUTRA and continued to the present.
Furthermore, she has submitted statements by family and
friends stating that her foot problems began during her
ACDUTRA.  The appellant and her family and friends are
competent to testify to experiencing symptoms of her current
foot disorders during service.  See Layno, 6 Vet. App. at
469; see also 38 C.F.R. � 3.159(a)(2).  But once evidence is
determined to be competent, the Board must determine whether
the evidence also is credible.  The former, the Court has
held, is a legal concept, which is useful in determining
whether testimony may be heard and considered by the finder
of fact, while the latter is a factual determination going to
the probative value of the evidence to be made after the
evidence has been admitted.  Rucker v. Brown, 10 Vet. App.
67, 74 (1997).  Here, the appellant's medical record is
negative for any complaints of a bilateral foot disorder
until many years after her ACDUTRA service.  In such cases,
the Board is within its province to weigh the appellant's
testimony and to make a credibility determination as to
whether the evidence supports a finding of in-service
incurrence and continuity of symptomatology sufficient to
establish service connection.  Barr v. Nicholson, 21 Vet.
App. 303, 310 (2007).  The Federal Circuit Court has held
that an extensive lapse of time between the alleged events in
service and the initial manifestation of the subsequently
reported symptoms and/or treatment is a factor for
consideration in deciding a service connection claim.  Maxson
v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  Here, the
Board affords the appellant's lay statements, and those
provided by her family and friends, less probative weight in
light of the lack of corroborating medical evidence from
service and for so many years thereafter.  In fact, there is
substantial medical evidence against her claim.  Simply put,
her lay contentions regarding her symptomatology are
outweighed by the available medical evidence.  See Barr v.
Nicholson, 21 Vet. App. 303, 310 (2007); see also Buchanan v.
Nicholson, 451 F.3d 1331, 1337 (2006) (finding that the Board
may weigh the absence of contemporaneous medical evidence
against the lay evidence in determining credibility, but the
Board cannot determine that lay evidence lacks credibility
merely because it is unaccompanied by contemporaneous medical
evidence).  The lack of complaints of a foot disorder in the
appellant's medical records until over ten years after
discharge, taken with the medical evidence against her claim,
outweighs her subjective assertions that these problems began
in service and have continued since that time.  With all of
the evidence presented by the record taken into account, the
Board concludes that the record does not establish the
required continuity of symptomatology necessary to establish
service connection for the appellant's foot disorders.

In conclusion, having reviewed all of the evidence contained
within the record in the light most favorable to the
appellant, the Board finds that the preponderance of the
evidence is against service connection for a bilateral foot
disorder, with no reasonable doubt to resolve in the
appellant's favor.  38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102.

ORDER

Service connection for a bilateral foot disorder is denied.

____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: U R POWELL

condition: back

text:
Citation Nr: 0922000
Decision Date: 06/11/09    Archive Date: 06/17/09

DOCKET NO.  07-34-124	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan

THE ISSUE

Entitlement to service connection for a back disability, to
include osteoarthritis of the facet joints and degenerative
disc disease.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

T. Wishard, Associate Counsel

INTRODUCTION

The Veteran had active service from October 1951 to September
1953.

This matter comes before the Board of Veterans' Appeals
(Board) from a March 2007 rating decision of the Department
of Veterans Affairs (VA), Regional Office (RO) in Cleveland,
Ohio.

A motion to advance this case on the Board's docket was
received by the Board on May 15, 2009.  This motion was
granted by the Board on June 6, 2009 due to the Veteran's
advanced age.  38 U.S.C.A. � 7107 (West 2002); 38 C.F.R. �
20.900(c) (2008).

FINDING OF FACT

The competent clinical evidence of record does not establish
that the Veteran's current back disability of degenerative
disc disease and arthritis of the facet joints is related to
active service.

CONCLUSION OF LAW

A back disability was not incurred in or aggravated by active
service, nor may arthritis be presumed to have been so
incurred or aggravated.  38 U.S.C.A. �� 1101, 1110, 1112,
5103A, 5107(b) (West 2002); 38 C.F.R. �� 3.102, 3.303, 3.307.
3.309 (2008).

REASONS AND BASES FOR FINDING AND CONCLUSION

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. 2008); 38 C.F.R.
�� 3.102, 3.156(a), 3.159, and 3.326(a) (2008).

Duty to Notify

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 & Supp. 2008); 38 C.F.R. � 3.159(b) (2008);
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; and (3) that the
claimant is expected to provide.  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, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

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 held 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, 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, it will assist in substantiating or that 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.

In correspondence to the appellant in August 2006, VA
informed the appellant of what evidence was required to
substantiate his claim, and of his and VA's respective duties
for obtaining evidence.  The correspondence to the appellant
also included notice that a disability rating and effective
date would be assigned, in the event of award of the benefit
sought, as required by the Court in Dingess/Hartman.

In Pelegrini, supra, the Court held that compliance with
38 U.S.C.A. � 5103 required that VCAA notice be provided
prior to an initial unfavorable AOJ decision.  Because VCAA
notice in this case was completed prior to the initial AOJ
adjudication denying the claim, the timing of the notice
complies with the express requirements of the law as found by
the Court in Pelegrini.

The VCAA requires that the duty to notify is 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).  The Board
finds the VCAA notice requirements have been met in this
case.

Duty to assist

With regard to the duty to assist, the claim's file contains
private and VA treatment records, as well as the Veteran's
statements in support of his claim. The Board has carefully
reviewed the statements and concludes that there has been no
identification of further available 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.

An August 2006 report from the National Personnel Records
Center (NPRC) indicates that the Veteran's service treatment
records (STRs) and military personnel file records were among
those destroyed in a 1973 fire at NPRC.  When records in
government custody are lost or destroyed, VA has a heightened
duty to consider the benefit of doubt doctrine, to assist the
claimant in developing the claim, and to explain its
decision.  See Russo v. Brown, 9 Vet. App. 46, 51 (1996).

In VA letters dated in November 1991 and January 1992, VA
requested the Veteran to provide it with the full
organizational designation, including unit and sub-unit, to
which he was assigned at the time that the disability was
incurred or aggravated.  A November 2006 VA Form 119, report
of contact, reflects that the Veteran does not remember his
complete unit of assignment.  Although the Veteran's DD Form
214 reflects that the Veteran's most significant duty
assignment was Company B, 34th Infantry Regiment, it does not
reflect his battalion or division.  The Veteran also averred,
in response to April 1992 VA correspondence, that he was in
Korea's 2nd Division; however, he did not provide a brigade,
battalion, or company of assignment.  The Veteran also did
not provide any information regarding his unit of assignment
at that time or while in boot camp, another time for which he
indicted he had injured his back

On a VA Form 9, dated in October 2007, the Veteran avers that
when he worked, he went to the employer's clinic, but that
the job "folded" in 1983, approximately 24 years earlier.
The Veteran did not provide any information regarding the
name or address of his previous employer or employer's
clinic.  The Board finds, based on the lack of identifying
information, that VA does not have a duty to attempt to
obtain such records.

The Board notes that the duty to assist is not a one-way
street.  If a Veteran wishes help, he cannot passively wait
for it in those circumstances where he may or should have
information that is essential in obtaining the putative
evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

An April 1992 VA letter to the Veteran reflects that the RO
made at least three unsuccessful attempts to obtain the
Veteran's STRs.  The letter also notified the Veteran that he
had 60 days to provide any medical or lay evidence to support
his claim.  A response from the Veteran reflects that he did
not have any evidence of his injury from military service,
but that he had been treated in Japan in 1952 and/or 1953.

VA has a duty to provide a VA examination when the record
lacks evidence to decide the Veteran's claim and there is
evidence of (1) a current disability, (2) an in-service
event, injury, or disease, (3) some indication that the
claimed disability may be associated with the established
event, injury, or disease, and (4) insufficient competent
evidence of record for VA to make a decision.  See McLendon
v. Nicholson, 20 Vet. App. 79 (2006).  In the present case,
the only evidence of record of an in-service injury or
disease is the Veteran's lay statements.  While the Veteran
is competent to report he felt pain in service and has
continued to feel pain periodically since service, the
absence of objective evidence is for consideration in
assessing credibility of such statements.  As noted above,
the Veteran was apprised in November 1991, April 1992, and
August 2006 that he could submit evidence, for VA
consideration, that he had a chronic disability since
service.  The record reflects that the Veteran did not submit
any objective supportive evidence, but rather, only his lay
statements, for the more than 50 years after his separation
from service.  Moreover, there is no medical evidence that
current disability may be associated with his alleged
injuries in service.  As the record is void of any objective
evidence of complaint of, or treatment for, a back injury,
for more than 50 years after service, and there is no
objective evidence which relates the Veteran's current
disability to service, the Board finds that the Veteran's lay
statements are other than credible and the Veteran has not
presented sufficient evidence to trigger VA's duty to provide
an examination.  Paralyzed Veterans of America, et. al., v.
Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003)
(holding that if the evidence of record does not establish
that the Veteran suffered an event, injury, or disease in
service, no reasonable possibility exists that providing a
medical examination or obtaining a medical opinion would
substantiate the claim).

An October 2006 VA primary care outpatient note reflects that
the Veteran was informed a CT scan of his cervical spine and
lumbar spine could be ordered, and that the Veteran reported
he wanted to wait until June 2007 for such scans.  There is
no evidence of record that a CT scan was ever performed and a
June 2007 primary care outpatient progress note does not
reflect that any CT scans were performed.  Regardless, the
claims file contains sufficient evidence to establish that
the Veteran has a current disability.  Finally, the Veteran
avers that he was treated at two hospitals, but that both
hospitals are no longer open.  Based on the foregoing, the
Board finds that VA does not have a duty to attempt to obtain
any such records.

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.

Legal criteria

Service connection is warranted if it is shown that a Veteran
has a disability resulting from an injury incurred or a
disease contracted in active service or for aggravation of a
pre-existing injury or disease in active military service.
38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. � 3.303 (2008).
Service connection may also be granted for any disease
diagnosed after discharge when all of the evidence
establishes that the disease was incurred in service.  See 38
C.F.R.
� 3.303(d).

"Generally, to prove service connection, a claimant must
submit (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances lay testimony,
of in-service incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury."
Pond v. West, 12 Vet. App. 341, 346 (1999).  Where the
determinative issue involves a medical diagnosis, competent
medical evidence is required.  This burden typically cannot
be met by lay testimony because lay persons are not competent
to offer medical opinions.  Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992).

Analysis

The Board has reviewed all of the evidence in the Veteran's
claim's files, with an emphasis on the evidence relevant to
this appeal.  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 of record.
Indeed, the Federal Circuit has held that the Board must
review the entire record, but does not have to discuss each
piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81
(Fed. Cir. 2000).  Therefore, the Board will summarize the
relevant evidence where appropriate, and the Board's analysis
below will focus specifically on what the evidence shows, or
fails to show, as to the claim.

Historically, the Board notes that the Veteran filed a claim
for a back disability in February 1991.  The evidence of
record reflects that in April 1992, VA notified the Veteran
that it would adjudicate his claim within 60 days if it did
not receive further evidence.  The record does not reflect an
RO adjudication of a claim until March 2007, after the
Veteran filed for service connection for a back disability in
June 2006.

The first element of a claim for service connection is that
there must be evidence of a current disability.  An October
2006 VA primary care outpatient note reflects an assessment
of the cervical and lumbar spine segments revealed
osteoarthritis of the facet joints, and degenerative disc
disease.  Based on the October 2006 report, the Board finds
that the Veteran has a current disability.

The second element of a claim for service connection is
medical evidence, or in certain circumstances lay testimony,
of in-service incurrence or aggravation of an injury or
disease.  The Veteran contends that he has a back disability
due to his active service.  Specifically, he avers that he
injured his back while playing football in boot camp.  In a
statement dated in October 1991, he stated he reinjured his
back in Korea when he fell off a bank at night.  In a
statement dated in August 2006, he states that he was
carrying a base plate when he slipped and another man fell on
him, twisting the Veteran's back.  As noted above, there is
no objective evidence of record regarding the alleged
injuries.

The Board finds that the Veteran is competent to report that
he had back pain during service, and that he has had some
back pain since service.  The Veteran's statements regarding
his back pain appear to be offered for the purpose of
establishing an in-service disability and continuity of that
disability after service.  However, while the Veteran is
competent to report the presence of symptoms, as the Veteran
does not have the requisite skills, knowledge, or training,
he is not competent to provide a diagnosis as to his symptoms
during or after service.  Espiritu, supra.

Further, little probative weight can be assigned to his
statements as to continuity of symptomatology, as the Board
deems such statements to be less than credible.  In this
regard, while the Board acknowledges that the absence of any
corroborating medical evidence supporting his assertions, in
and of itself, does not render his statements incredible,
such absence is for consideration in determining credibility.
See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir.
2006) (noting that the absence of contemporaneous medical
documentation may go to the credibility and weight of
Veteran's lay testimony, but the lack of such evidence does
not, in and of itself, render the lay testimony incredible).
See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.
2007) (noting that lay evidence can be competent to establish
a diagnosis when . . . a layperson is competent to identify
the medical condition).

The first post-service reference to back pain is the
Veteran's application for VA benefits, received in February
1991, more than 37 years after separation from service, where
he noted that he had been treated at L. Hospital in Detroit
Michigan from 1954 to 1982.  As noted above, the Veteran
avers that L. Hospital has closed, and he did not provide any
records establishing his treatment at that hospital, or any
other facility.  In a VA From 21-4142, dated in August 2006,
the Veteran listed M.M.I. clinic as a source of information
regarding his back and noted that he had been treated there
from 1953 to 1980; however, the November 2006 VA From 119
reflects that the Veteran averred that the facility was no
longer open.  The Veteran did not aver any treatment after
1982.  Assuming arguendo that the Veteran had treatment
between 1954 and 1982, he does not allege any treatment
between 1982 and May 2006.

A May 2006 private medical facility progress note reflects
that the Veteran sought treatment for pain in the left lower
back to right thigh, which he had since doing yard work the
prior day.  The note further reflects that the Veteran stated
it had occurred twice in the past and lasted until he had
taken prednisone.  In addition, the note reflects that the
Veteran stated he has back pain every so often but not
usually in the leg.  Annotations of L5 spine, degenerative
joint disease and L2, L4 spondylolisthesis are noted on the
progress report.  Furthermore, an assessment of L2
radiculopathy is noted.  Based on the foregoing, the earliest
clinical evidence of record that the Veteran sought treatment
of a back disability is May 2006, more than 53 years after
separation from service.  Moreover, he has not averred that
he sought treatment between 1982 and 2006, a 24 year period.
The Board notes that evidence of a prolonged period without
medical complaint, and the amount of time that elapsed since
military service, can be considered as evidence against the
claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000.)

Additionally, the Veteran's claim fails based upon the lack
of a medical nexus associating his alleged in-service back
symptoms to a currently diagnosed disability.  The provisions
concerning continuity of symptomatology do not relieve the
requirement that there be some evidence of a nexus to
service.  For service connection to be established by
continuity of symptomatology there must be medical evidence
that relates a current condition to that symptomatology.  See
Savage v. Gober, 10 Vet. App. 488, 495- 98 (1997).  There is
no evidence of record of such a nexus.  Therefore, the Board
concludes that the preponderance of the evidence is against a
grant of service connection

The Board has also considered whether presumptive service
connection for a chronic disease, arthritis, is warranted in
the instant case. However, in order for the presumption to
operate, such disease must become manifest to a degree of 10
percent or more within 1 year from the date of separation
from service.  See 38 C.F.R. � 3.307(a)(3).  The evidence of
record does not establish any clinical manifestations of
arthritis or osteoarthritis of the spine within the
applicable time period.  Indeed, the record reflects that the
osteoarthritis of the facet joints was not confirmed by
radiographic evidence until 2006, approximately 53 years
after the Veteran's separation from service.  As such, the
criteria for presumptive service connection on the basis of a
chronic disease have not been satisfied.

In conclusion, there is no competent and credible medical
evidence of record which reflects that the Veteran had back
pain in service or which attributes the Veteran's back
disability to service.  The Board has considered the doctrine
of giving the benefit of the doubt to the Veteran, under 38
U.S.C.A. � 5107 (West 2002), and 38 C.F.R. � 3.102 (2008),
but does not find that the evidence is of such approximate
balance as to warrant its application.  As noted above, where
a portion of the Veteran's service records cannot be located,
through no fault of the Veteran, VA has a "heightened"
obligation to more fully discuss the reasons and bases for
its decision and to carefully consider applying the benefit-
of-the-doubt doctrine.  See, e.g., O'Hare v. Derwinski, 1
Vet. App. 365 (1991).  However, the threshold for allowance
of a claim is not lowered and the need for probative medical
nexus evidence causally relating the current disability at
issue to service is not eliminated; rather, the Board's
obligation to discuss and evaluate evidence is heightened.
Russo, supra.  For the reasons noted above, the Board finds
that the preponderance of the evidence is against a grant of
service connection for a back disability.

ORDER

Entitlement to service connection for a back disability, to
include osteoarthritis of the facet joints and degenerative
disc disease is denied.

____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs