Citation Nr: 0516620 Decision Date: 06/17/05 Archive Date: 06/27/05 DOCKET NO. 95-21 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a left leg disorder. 3. Entitlement to service connection for a neck disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The veteran served on active duty from June 1975 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Portland, Oregon. In April 1998 and in July 2003, the Board remanded the claims for further development. The issue of service connection for a neck disorder is addressed in the REMAND portion of the decision below and REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The herniated nucleus pulpous at L5-S1 was manifested to a compensable degree within one year of active duty. 2. Left leg sciatica is associated with the herniated nucleus pulpous at L5-S1. CONCLUSIONS OF LAW 1. The herniated nucleus pulpous at L5-S1 may be presumed to have been incurred during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2004). 2. Left leg sciatica was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA Initially, the Board is satisfied that all relevant facts regarding the issues decided below have been properly developed and no further assistance to the veteran is required in order to comply with the duty to notify or assist. See 38 U.S.C.A. §§ 5103, 5103A, 5107(a) (West 2002). As discussed below, the development conducted by VA in this case fully meets the requirements of the old provisions of 38 U.S.C.A. § 5107(a) (West 1991) and the new provisions of 38 U.S.C.A. §§ 5103, 5103A (West 2002). See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The final rules implementing the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004). This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA (November 9, 2000), and to claims filed before the date of enactment but not yet final as of that date. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). First, VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.159(b)(2). In this case, there is no issue as to providing an appropriate application form or completeness of the application. Second, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Only after the February 1994 rating decision was promulgated did the agency of original jurisdiction (AOJ) in July 2001 provide explicit notice to the veteran regarding what information and evidence is needed to substantiate the claims, as well as what information and evidence must be submitted by the veteran, and what information and evidence will be obtained by VA. Specifically, the veteran was notified that VA has a duty to assist her in obtaining evidence necessary to substantiate her claims. The veteran was notified that she should identify medical treatment and that VA would request identified medical evidence. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement is harmless error. While the notice provided to the veteran in July 2001 was not given prior to the first AOJ adjudication of the claims, the veteran was afforded the opportunity to identify medical evidence that VA would attempt to obtain. Moreover, the AOJ obtained additional VA medical records. Also, the veteran was afforded a VA examination. The timing-of-notice error was sufficiently remedied by the process carried after the VCAA letters so as to provide the veteran with a meaningful opportunity to participate effectively in the processing of his claim by VA. Mayfield v. Nicholson, No. 02-1077 (U.S. Vet. App. April 14, 2005). The timing-of-notice error was thus nonprejudicial in this case because the error did not affect the essential fairness of the adjudication. Id. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A; 38 C.F.R. § 3.159(c). Records pertinent to the current claims in the possession of the Federal government - past treatment records with the military during active service and as a military dependent and VA medical records - have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The veteran submitted a statement from a private chiropractor. In May 1998 and March 2003 letters, the AOJ asked the veteran to sign authorizations of release for private chiropractor records; the veteran did not respond. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, no further duty with regard to obtaining private medical records is necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The veteran was afforded a VA examination. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The AOJ fully complied with the directives of the April 1998 and July 2003 Board remands. See Stegall v. West, 11 Vet. App. 268 (1998). The veteran has not identified any recent treatment by VA or any other source. In addition, the February 1994 and May 1995 rating decisions, the May 1995 statement of the case (SOC), and the May 1996, August 1997, April 2003 and December 2004 supplemental statements of the case (SSOCs) informed the veteran of the evidence in the possession of VA. As for the duty to notify the veteran of an inability to obtain identified records, the veteran did not sign an authorization for release of her private chiropractor records. Thus, there is no other evidence to obtain. Moreover, in a February 2004 VCAA letter, VA asked the veteran to provide any evidence she had pertaining to her claims. See 38 C.F.R. § 3.159(b)(1). By a March 2005 letter, VA informed the veteran that her case was being forwarded to the Board and, in effect, that VA would not undertake any further development in her claims. Based on the above analysis, the Board finds that VA has fulfilled its duty to assist the veteran in the development of the claims decided below. In light of the above, the Board determines that no reasonable possibility exists that further assistance would aid in the substantiation of the veteran's claims. 38 U.S.C.A. § 5103A. In addition, as the veteran has been provided with the opportunity to present evidence and arguments on her behalf and availed herself of those opportunities, appellate review is appropriate at this time. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). II. Factual background The veteran's service medical records reflect that in November 1975 the veteran complained of low back myalgia with malaise. The assessment was the flu syndrome. On a June 1976 periodic physical examination, she reported that she had or had had recurrent back pain. The spine and lower extremities were normal. At the January 1977 separation examination, the veteran denied having or having had recurrent back pain, neuritis, or paralysis. The spine and lower extremities were normal. From November to December 1977, the veteran was hospitalized at a military hospital as a military dependent. She reported a history of left leg pain that began in March 1977. She indicated that she had not had any previous back problems prior to the episode in March 1977. Physical examination revealed tenderness over the sciatic nerve on the left. The neurologic examination revealed no atrophy, but there was an obvious absence of the left Achilles' reflex. The diagnosis was a herniated nucleus pulposus at L5-S1. During the hospitalization, she underwent a partial hemi-laminectomy with excision of a herniated disc at the L5-S1 space. The veteran underwent a VA general medical examination in August 1993. The veteran complained of low back pain with sciatica. Following a physical examination, the assessments included left leg pain. The examiner noted that the veteran described pain radiating from her buttock to her left foot, which was consistent with sciatica. The examiner indicated that there was no evidence of a peripheral neuropathy in the left lower extremity. The veteran was afforded a VA spine examination in August 1993. She reported that her low back problems began in 1976 while assisting in moving a helicopter. She indicated that she did not seek any treatment during service for her symptomatology. She noted that prior to her low back surgery in 1977, she had low back pain and left leg symptoms. She reported that although the surgery helped alleviate her lower back discomfort and leg symptoms, she continued to have chronic symptoms. She said that she presently had pain in the left lower extremity, which started in the buttock and ended in the lateral ankle. She denied any numbness or tingling. She described the leg pain as intermittent in nature, but reported a daily aching in the lower back. She indicated that her neck symptomatology began six or seven months after her back surgery and without an injury. She described stiffness and aching in her neck. Following physical examination, the diagnoses included the following: (1) a history of probable laminectomy and discectomy in the lumbosacral spine, following an apparent injury while on military duty; (2) residual chronic low back strain symptoms with some leg symptoms, secondary to the herniated disk; (3) chronic neck strain with no objective findings except for some reduction in the range of neck flexion; and (4) no neurologic deficits in the lower extremities, except for the very minimal weakness and reduced ankle reflex secondary to the herniated disk. The examiner noted that the veteran did not have peripheral nerve problems other than the weakness and reflex changes associated with a herniated disk. The examiner indicated that she still had some symptoms in the buttock and ankle that were suggestive of some chronic sciatic neuritis. In a September 1994 statement, a private chiropractor reported that the veteran's complaints were primarily neck and upper back pain and stiffness and occasional lower back complaints. The chiropractor noted that an initial examination revealed a short right leg with additional subluxation of the lumbar spine and pelvis, resulting in scoliosis. The chiropractor indicated that the upper spine (the cervical and thoracic regions) became excessively burdened by the constant and progressive compensation for the lower back dysfunction, thereby becoming symptomatic and chronically so. The chiropractor stated that the cervical and thoracic symptoms would not be present if it were not for a pre-existing lower back injury she sustained. The chiropractor noted that his records showed a 1977 partial laminectomy of L5 to relieve pressure from spinal nerve roots at that level. The chiropractor opined that the pre-existing lower back injury had predisposed the cervical and thoracic regions to undergo excessive compensation and premature spinal degeneration, which was evidence on X-rays. The veteran underwent a VA examination in April 2003. She reported that she had pain in her left leg during service but that nobody paid much attention to her complaint because she was pregnant at that time. The examiner indicated that there were no notes in her service medical records regarding her leg, back, or neck pains. The examiner noted that after the laminectomy in 1977, there was no record of her having back symptomatology for some period of time after that surgery. She reported that she currently had no low back symptomatology other than occasional low back pain about twice a month and occasional sciatic pain. She stated that her main complaints were neck and upper back pains. X-rays of the cervical spine revealed an approximate 50 percent narrowing of C5-C6 disc space and a mild narrowing of the L5-S1 disc space. Following a physical examination, the diagnoses were degenerative disc disease of the cervical spine at C5-C6 and degenerative disc disease and post- operative laminectomy of L5-S1. The examiner noted that the veteran did not have symptoms of back or neck pain in her service medical records. The examiner indicated that the veteran had back surgery in November 1977 after being discharged from active service in February 1977 and that she went for a significant period of time without back complaints. The examiner opined that the neck and back disorders were probably less than likely related to service-time injuries or complaints. III. Service Connection Service connection may be established for disability due to disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131. 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 distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Service connection may be also 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). Service connection may also be granted for an organic disease of the nervous system when it is manifested to a compensable degree within one year following discharge from active service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service- connected disability and the nonservice-connected disease or injury. Jones v. Brown, 7 Vet. App. 134 (1994). In addition, service connection may also be granted for disability that has been aggravated by a service-connection disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In claims for VA benefits, VA 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. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (holding that a claimant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail). IV. Analysis A. Low Back Disorder The veteran's service medical records reflect that the veteran had low back myalgia in November 1975 but the assessment was the flu syndrome. On the June 1976 periodic physical examination, she reported that she had or had had recurrent back pain, but a low back disorder was not diagnosed. At the January 1977 separation examination, the veteran denied having or having had recurrent back pain, neuritis, or paralysis, and low back or left lower extremity disorder was not diagnosed. The veteran was discharged from active duty in early February 1977. Sciatica due to a herniated nucleus pulposus is an organic disease of the nervous system within the meaning of 38 U.S.C.A. § 1101. The November and December 1977 hospitalization records reflect complaints of left leg symptomatology less than two months after separation from active service. A herniated disc at L5-S1 was found during that hospitalization. The August 1993 VA spine examiner opined that the post-service laminectomy and discectomy in the lumbosacral spine were related to an apparent injury while on military duty. Also, the April 2003 VA examiner the back disorder was probably less than likely related to in- service injuries or complaints. In regard to that opinion, the Board notes that the examiner indicated that the veteran went for a significant period of time without back complaints after discharge from active duty in February 1977. As the hospitalization records reflect that the veteran reported symptomatology beginning within two months of discharge from active duty, the opinion of the April 2003 VA examiner is of limited value. In short, the presumption of service connection for herniated nucleus pulposus at L5-S1 with associated left sciatica has not been rebutted. Therefore, service connection for post-operative residuals of a herniated nucleus pulposus at L5-S1 with left sciatica is warranted. In the alternative, if the herniated nucleus pulposus at L5- S1 with sciatic neuritis were determined not to be an organic disease of the nervous system, the Board would still grant service connection. Again, it is clear from the reliable evidence that the appellant had symptoms in a remarkably brief time following separation from service. The appellant also voiced back complaints during service. Although she has varied her post-service reports regarding onset, there is sufficient evidence upon which to conclude that the first manifestations of the herniated nucleus pulposus at L5-S1 were during active duty. B. Left Leg Disorder The Board concludes that the left leg sciatica is part and parcel of the herniated nucleus pulposus at L5-S1. However, current rating standards provide for rating limitation of motion of the lumbar spine separately from neurologic deficit of the lower extremities. Service connection for left leg sciatica is warranted. ORDER Service connection for post-operative residuals of a herniated nucleus pulposus is granted. Service connection for left leg sciatica is granted. REMAND The private chiropractor in a September 1994 statement opined that the post-operative residuals of the herniated nucleus pulposus at L5-S1 predisposed the cervical spine to undergo excessive compensation and premature spinal degeneration. A medical opinion is necessary to confirm the opinion of the chiropractor. Accordingly, this case is remanded for the following: The AMC should schedule the veteran for a VA orthopedic examination to determine the nature and extent of the current cervical spine disabilities. The examiner should review the September 1994 statement of the private chiropractor. The examiner should opine on whether it is as least as likely as not that the post-operative residuals of the herniated nucleus pulposus at L5-S1 caused or aggravated any current chronic neck strain and the degenerative disc disease of the cervical spine at C5-C6. If upon completion of the above action the claim remains denied, the case should be returned after compliance with requisite appellate procedure. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs