Citation Nr: 1420780	
Decision Date: 05/08/14    Archive Date: 05/21/14

DOCKET NO.  13-18 282	)	DATE
	)
	)

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


THE ISSUES

1.  Whether termination of a total disability rating based on individual unemployability (TDIU) effective March 1, 2011, was proper.

2.  Whether new and material evidence has been received to reopen the previously denied service connection claim for a back disability.

3.  Entitlement to service connection for a back disability.

4.  Entitlement to compensation for a back disability under the provisions of 38 U.S.C.A. § 1151 based on a March 27, 2002, surgery at Travis Air Force Base.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs



ATTORNEY FOR THE BOARD

C. Fields, Counsel


INTRODUCTION

The Veteran served on active duty from August 1954 to July 1956.  He has also reported unverified service in the Reserves from August 1956 to July 1964.

This matter comes before the Board of Veterans' Appeals (Board) from a merged appeal of December 2010 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  

In the December 2010 rating decision, the RO terminated the Veteran's entitlement to a TDIU effective March 1, 2011.  The Veteran filed a notice of disagreement with that determination and, in March 2012, the Board remanded this issue for a statement of the case, which was completed.  The Veteran subsequently filed a timely substantive appeal (VA Form 9) to perfect the appeal to the Board.

In the May 2013 rating decision, the RO denied the Veteran's application to reopen his previously denied claim of service connection for a back disability, as well as his new claim for compensation for a back disability under 38 U.S.C.A. § 1151.  The Veteran appealed.  Although the RO reopened the prior claim of service connection, the Board must determine whether the prior claim should be reopened as a threshold matter.  See Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995).  

At the time these matters were certified to the Board in October 2013, the Veteran was represented by an attorney.  Within 90 days of certification, he submitted a new VA Form 21-22 appointing the above-indicated state Veterans' Service Organization (VSO) as his representative, and revoking representation by the attorney.  See 38 C.F.R. § 20.1304 (2013).

No hearing was requested as to the issue of termination of TDIU.  As there were conflicting written statements concerning whether the Veteran desired a hearing on the claims for a back disability, the Board sought clarification in December 2013.  In response, the Veteran submitted information clarifying his current representative, along with a blank copy of the hearing options.  He did not indicate a desire for a hearing.  In February 2014, the Board again requested clarification as to any hearing request, with a copy to the currently appointed representative.  No response was received.  As such, any prior hearing request is deemed to have been withdrawn.  

The Veteran submitted additional evidence after the last adjudication by the AOJ.  As the substantive appeals for all issues on appeal were received after February 2, 2013, he is presumed to have waived AOJ review of such evidence.  38 U.S.C.A. § 7105 (as amended, effective February 2, 2013).  There is also no express request for review by the AOJ.  Id.  . 

The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for a back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if any action is required.


FINDINGS OF FACT

1.  The RO provided proper notice prior to termination of the Veteran's TDIU effective March 1, 2011; and there was clear and convincing evidence that he had maintained substantially gainful employment for twelve consecutive months.

2.  Service connection for a back disability was last denied in an August 2004 rating decision; the Veteran was notified of his appellate rights, but he did not appeal and no new and material evidence was received within one year of that determination.

3.  Evidence received since the last final denial includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim, the absence of which was the basis of the previous denial.

4.  The March 27, 2002, surgery performed at Travis Air Force Base under a sharing agreement is not considered VA care, treatment, or examination; moreover, the Veteran did not develop additional disability as a result of VA treatment decisions.  


CONCLUSIONS OF LAW

1.  The termination of TDIU effective March 1, 2011, was proper.  38 U.S.C.A. 1155 (West 2002); 38 C.F.R. §§ 3.105(e), 3.343(c), 4.16 (2013).

2.  The August 2004 RO denial of service connection for a back disability became final, but new and material evidence has been received sufficient to reopen the previously denied claim.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103 (2003 & 2013).

3.  The criteria for compensation under 38 U.S.C.A. § 1151 for a back disability based on a March 27, 2002, surgery have not been not met.  38 U.S.C.A. §§ 1151, 5107, 8153 (West 2002 & Supp. 2013); 38 C.F.R. § 3.361 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duties to Notify and Assist

The decision to reopen the Veteran's previously denied claim for a back disability is a full grant of the benefit sought on appeal.  Therefore, no further notice or development is necessary to comply with the statutes of the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this regard.

In terminating the TDIU, the RO followed the special procedures of 38 C.F.R. § 3.105(e).  In a May 2010 letter, the RO notified the Veteran of the proposed termination of TDIU and the reasons for such proposal, and offered the Veteran the opportunity to submit evidence showing that the TDIU should not be terminated and to request a hearing.  The Veteran and his representative submitted arguments and evidence in response, as summarized above, but did not request a hearing.  In a December 2010 rating decision, the termination of TDIU was finalized effective March 1, 2011, more than 60 days later, in compliance with § 3.105(e).

With regard to the claim for compensation pursuant to 38 U.S.C.A. § 1151, the Veteran was advised in March 2013, prior to the initial adjudication in May 2013, of the evidence and information necessary to establish his claim, including a disability rating and effective date.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

All pertinent, identified, available records have been obtained for these claims, including VA and private treatment records, Department of Defense records from McClellan Air Force Base (the Veteran's prior employment) and Travis Air Force Base.  In particular, the treatment records surrounding the March 27, 2002, surgery, and the Veteran's signed consent form for that surgery, were obtained.  There is no indication of any pertinent records outstanding as to the termination of the Veteran's TDIU.  Although the Veteran's prior attorney stated in June 2010 that Social Security Administration (SSA) records had not been considered in determining the Veteran's employability, the attorney referred to records concerning payments made by the SSA for the Veteran's disabled brother.  There is no indication that the Veteran received SSA disability payments on his own behalf.  

No VA examination or medical opinion is necessary as to the § 1151 claim.  See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006); 38 C.F.R. § 3.159(c).  Rather, the undisputed evidence shows that the procedure at issue was not VA care, treatment, or examination, as required for compensation under § 1151, based on application of relevant laws to the undisputed facts.  See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994).  Moreover, the Veteran is not credible with respect to having worsening symptoms immediately after the surgery, and the medical evidence is sufficient to establish that there was no resulting additional disability, as required for compensation under § 1151.  

In sum, there is no additional notice or assistance that would be reasonably likely to aid in substantiating these claims.  VA has satisfied its duties to inform and assist, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings.  Therefore, the Veteran will not be prejudiced by a decision.

II. Legal Analysis

Termination of TDIU

In a July 2006 rating decision, the Veteran was granted TDIU effective as of May 11, 2005, because evidence at that time showed that he met the percentage threshold requirements for TDIU based a 60 percent rating for service-connected prostatitis, he had not worked since 1993, and he was found unemployable due to prostatitis.  

Thereafter, the RO obtained evidence from the Internal Revenue Service (IRS) through the Income Verification Match (IVM) process that appeared to show that the Veteran had earned income in 2005, and information from the payer showing wages in 2006 and 2007.  Accordingly, the RO advised the Veteran that it had discovered earnings in those years that indicated he might be able to secure or follow substantially gainful employment, which would require reduction in his compensation.  The RO requested the Veteran to explain whether he received those amounts, the source of income, and to provide information to show that the amounts were not earned income, including any IRS corrections or independent copies of tax returns for these years.  See September 2008 and February 2010 letters to Veteran.

A total disability rating may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

Substantially gainful employment does not include marginal employment, which is generally deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist on a facts found basis, including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  38 C.F.R. § 4.16(a).

A rating of 100 percent disability based on individual unemployability (TDIU) may be reduced, subject to the procedural protections of § 3.105(e), but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence.  38 C.F.R. § 3.343(c)(1).  If a veteran with a TDIU begins to engage in a substantially gainful occupation after January 1, 1985, the veteran's rating may not be reduced solely on the basis of such occupation unless the veteran maintains the occupation for a period of twelve consecutive months.  Temporary interruptions in employment that are of short duration shall not be considered breaks in otherwise continuous employment.  38 C.F.R. § 3.343(c)(2).

The "clear and convincing" standard requires that capacity for work be proven to a "reasonable certainty" but not necessarily be "undebatable."  Vanerson v. West, 12 Vet. App. 254, 258 (1999).  The clear and convincing standard is an intermediate standard between preponderance of the evidence and beyond a reasonable doubt.  Fagan v. West, 13 Vet. App. 48, 55 (1999).  Favorable evidence received since the time of the RO's termination of the TDIU should also been considered in making these determinations.  See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 281 (1992).

The TDIU was not in effect for 20 years or more, it is not "protected."  See 38 C.F.R. § 3.951.  At the time the TDIU was reduced effective March 1, 2011, the Veteran was in receipt of service-connected compensation for prostatitis, rated as 60 percent disabling, and no other disabilities.  

The May 2010 letter notified the Veteran of the proposed termination of TDIU due to evidence of substantial employment for more than twelve consecutive months, based on evidence received through the IVM process of earned income from 2005 to 2007.  The provisions of § 3.105(e) were followed.

In December 2008, the Veteran confirmed that he had received the amounts reported by the IRS for 2005; however, he argued that they should not be considered earned income.  The Veteran asserted that these amounts were received in his capacity of conservator for his disabled brother, and that he used all of the income to pay caretakers for in-home nursing care and normal daily expenses for his brother.  The Veteran also contended that he was still disabled and unable to work, and that he had no gainful employment or occupation.  

In May and June 2010, after being notified of the proposed termination of his TDIU based on evidence of earned income from 2005 forward, the Veteran and his prior attorney made similar arguments.  They also stated that the Veteran had received no income or earnings and had not worked since retiring in 1993.  A March 2006 letter from his prior employer indicated that he retired in 1993, and received gross monthly retirement income of $3,169.25 payable for life, or $38,031 for twelve months.  Additionally, the Veteran and his representative asserted in 2010 that he was now disabled due to his back disability, for which he has claimed service connection or compensation under 38 U.S.C.A. § 1151.  

In support of his assertions, the Veteran provided independent verification of the income amounts obtained through the IVM process, and copies of court documents showing that he was appointed as his brother's conservator in 1987.  The Veteran provided copies of "statements of earnings" from Yolo County Department of Social Services (DSS) with his brother listed as the recipient, dated from January 2005 to November 2005, showing gross monthly payments of $2,716.80 through October 2005, and $2,759.25 gross payment in November 2005.  Assuming the December 2005 amount was the same as for November 2005, this would total $32,686.50 for that 12-month period.  The Veteran also provided a copy of a W-2 Form from 2005 for wages, compensation, or other earnings of $383, with the "employer" listed as his brother and a lawsuit judgment, and the "employee" listed as the Veteran.  The Veteran indicated that this was a judgment award from California Social Services on his brother's behalf.  These are the same amounts as those reported by the IRS as earned income for the Veteran in the IVM process.

Nevertheless, a representative with Yolo County Department of Employment and Social Services (YCDESS - Adult Services), i.e., the payer, also independently verified the amount that was reported by the IRS as earned income for the Veteran in 2005.  Consistent with this report by the IRS, an August 2007 report from YCDESS reflects that payments were made to the Veteran for "wages" as a "full-time" employee in the amount of $32,686.50 in 2005.  This report also shows "wages" paid to the Veteran as a "full-time" employee for approximately $2,000 more in 2006, and what appears to be a similar amount for 2007 as prorated through the August 2007 report date.  Despite repeated requests, the Veteran has not provided any information as to the amount or sources of income for 2006 or 2007.

Additionally, although a January 2013 private evaluation indicates that the Veteran had many medical and psychological disorders and was very disabled at that time, this examiner also noted that the Veteran "live[d] at home and care[d] for himself and his disabled brother."  This would be consistent with his continued receipt of earned income as a full-time employee from the social services department.

The Veteran and his prior representatives, as well as his treating providers, have asserted that the tax returns used in the IVM process were joint returns with his brother, and that his accountant mistakenly reported the amounts received as income to the Veteran.  See May and June 2010 letters from Veteran and his prior attorney; June 2010 letter from Dr. WD.  Nevertheless, the Veteran has not submitted corrected information from the IRS or amended tax returns for 2005, 2006, or 2007, despite being advised to do so repeatedly by two prior attorneys, the RO, and his treating provider Dr. WD.  This weighs against the Veteran's claim that he did not receive the income as wages, especially given that the Veteran's status as a full-time employee from 2005 to 2007 was confirmed by the employer in 2007.  As such, the Veteran and other lay witnesses are not credible in this regard.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that a witness's credibility may be impeached by a showing of interest, bias, or inconsistent statements).

In an October 2008 affidavit, VW stated that he had contracted with Veteran to be a part-time care provider and domestic worker for his paraplegic brother, and he was paid $425 per week in cash for these services.  It is unclear if this arrangement was in effect prior to 2008.  Moreover, it was only for part-time care, and the Veteran and others have indicated that his brother requires full-time care, which would be consistent with the Veteran's receiving earned income as a full-time employee for such care as needed.  

The Board also notes that the Veteran's treating orthopedic surgeon, Dr. WD, indicated in a letter received in June 2010 that the Veteran is the guardian for his disabled brother and received $32,000 from Yolo County DSS in 2005 to help pay for attendant care, food, and housing.  He stated that the Veteran cashed those checks as legal guardian and used the money for his brother's care.  Dr. WD stated that the Veteran's "personal medical condition precluded him from providing any care for his brother," all money was spent on his brother, and the Veteran did not receive any money for his services.  Dr. WD further stated that he was aware of this relationship and agreed with the Veteran's overseeing care for his brother.  

Nevertheless, the claims file includes a June 2010 evaluation from Dr. CN that contradicts this opinion as to the Veteran's disability level.  Dr. CN indicated that he performed the Veteran's January 2005 spine surgery, that his symptoms improved after that surgery, and that Dr. CN reevaluated the Veteran in June 2010 and he reported doing "fairly well" at that point.  During this 2010 evaluation, the Veteran stated that "later in 2005 he started doing less and in the way of construction work as he felt that he could not do much lifting with regard to his back."  Similarly, in the "plan" section of the June 2010 evaluation, Dr. CN noted that the Veteran's symptoms improved significantly after his surgery, stating, "Actually, after surgery the [Veteran] was able to return to some heavy construction work for a period of time."  Further, consistent with this report in 2010, treatment records from Dr. CN dated in 2005 indicate that the Veteran "currently [was] working with his son helping to frame houses."  

This evidence from Dr. CN directly contradicts the Veteran's reports that he had been unable to work since 1993 and, more importantly, the statement by Dr. WD that he was physically unable to care for his brother in 2005.  The evidence from Dr. CN was provided in support of the Veteran's claim for a back disorder, and the statements by the Veteran were made to Dr. CN for treatment purposes, and not in connection with the termination of his TDIU.  As such, the Board finds these statements to be more probative than the statements by the Veteran and Dr. WD, and the statements by the Veteran and Dr. WD are not credible.  See Caluza, 7 Vet. App. at 511; see also Fed.R.Evid. 803(4) (generally finding statements for the purposes of medical diagnosis or treatment to be reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (stating that the Board may cite to the Federal Rules of Evidence where they will assist in the articulation of the Board's reasons).

In sum, despite the Veteran's assertions, there is clear and convincing evidence that he received the payments from Yolo County DESS (otherwise identified as IHSS) as indicated above for in-home support service work for his disabled brother.  Although the Veteran argues that he merely distributed this money to others, the evidence from the IRS and independently verified by his employer shows that he received this money as wages as an employee.  Therefore, it was earned income.  

The poverty threshold level for one person, as determined by the U.S. Census Bureau, was $9,973 in 2005, $10,294 in 2006, and $10,590 in 2007.  The income amounts in this case were well above these thresholds, and there is no evidence to suggest that the earnings were through marginal employment on a facts found basis.  The fact that the Veteran provided in-home support care to his own brother does not render it a sheltered or family employment situation under the circumstances of this case.  That is, the payments were made by a third party, which had obviously determined that the Veteran had the skills and capacity to be full time caregiver.  As such, the Veteran is considered to have been engaged in substantially gainful employment from 2005 to 2007.  See 38 C.F.R. § 4.16(a).  

There is no indication of any more than a temporary break in employment; therefore, the Veteran had more than twelve months of consecutive employment from 2005 to 2007.  This constitutes clear and convincing evidence that he was actually employable, and termination of TDIU was proper.  38 C.F.R. § 3.343(c).

As discussed below, the Veteran's claim for compensation for a back disorder under 38 U.S.C.A. § 1151 based on a March 2002 surgery is denied.  Although the Veteran's claim for service connection for a back disorder is being remanded herein, this does not affect the adjudication of the propriety of termination of his TDIU.  Rather, as the evidence shows that he was actually gainfully employed for more than twelve consecutive months, the TDIU was properly terminated under 38 C.F.R. § 3.343(c)(2) after following the procedural protections of § 3.105(e).  The status of the Veteran's back disorder does not affect these determinations.

Claim to reopen

Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  If new and material is received prior to the expiration of the appeal period, it is considered as having been filed with the claim that was pending at the beginning of the appeal period, and the denial is not considered final.  38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).  

The Veteran initially claimed service connection for a back disability in November 1956, which was denied in an April 1957 rating decision.  He did not appeal, and no new evidence pertaining to the back claim was received within one year; therefore, the denial became final.  38 U.S.C. § 709 (1952) [38 U.S.C.A. § 7105(c) (West 2002)]; Veterans Regulation No. 2(a), Part II, Par. III; Department of Veterans Affairs Regulation 1008 [38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2013).]
 
The Veteran attempted to reopen his claim in February 2004, which was denied in an August 2004 rating decision.  This denial was based on findings that there was no back disability in service or for many years after service, and no link to service or to the service-connected prostatitis.  The Veteran disputed the denial of a higher rating for prostatitis in May 2005, but he did not reference a back disorder in that notice of disagreement, or at any other time within one year of the denial.  No new evidence pertaining to the back claim was received within one year of the denial.  As such, the August 2004 rating decision became final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2003 & 2013).

The Veteran again applied to reopen this claim in 2010, leading to the current appeal.  Since the last final denial, he provided additional evidence as to his alleged symptoms since injury in service, and a January 2011 private medical opinion linking his current disability to service.  This new evidence is competent and relates to an unestablished fact necessary to substantiate the Veteran's claim, namely, whether the current back disability was incurred in service, to include based on continuity of symptomatology.  Presuming this evidence to be credible for the purposes of reopening, it raises a reasonable likelihood of substantiating the claim and triggers VA's duty to provide a VA examination.  Therefore, it is new and material, and the claim is reopened.  See 38 C.F.R. § 3.156(a); Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010).

Claim under 38 U.S.C.A. § 1151

In 2010, the Veteran sought compensation under 38 U.S.C.A. § 1151.  He asserted that his current back disorder was the result of a failed laminectomy performed by a VA provider at the Travis Air Force Base (AFB) on March 27, 2002, through a VA sharing agreement.  The Veteran argues that this surgery caused his feet and legs to be "paralyzed" and numb.  He also argues that he became unemployable and had a private surgery in 2005, because VA would not approve another surgery that soon.  

When a veteran suffers a qualifying additional disability as the result of VA care, treatment, or examination, compensation will be awarded as if such additional disability were service-connected.  38 U.S.C.A. § 1151; 38 C.F.R. § 3.361.  For claims filed on or after October 1, 1997, the additional disability must have been directly caused by fault on the part of VA, which includes lack of informed consent.  Alternatively, compensation will be awarded if the additional disability was directly caused by an event not reasonably foreseeable.  38 C.F.R. § 3.361(c), (d).  

When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The evidence includes a March 2001 MRI of the lumbar spine conducted by VA for a history of right lower extremity radiculopathy, which showed mild-to-moderate multilevel disc degeneration, mild subluxation at L4-L5, posterior annular bulges with resulting spinal stenosis at multiple levels, and foraminal narrowing at several levels.  The Veteran had a consult with a VA provider in July 2001, and this provider performed a laminectomy at Travis AFB on March 27, 2002, pursuant to a VA sharing agreement.  The surgeon appears to have been a VA employee, as defined in § 3.361(e)(1).  Nevertheless, activities undertaken at a Department of Defense facility (such as Travis AFB) under a sharing agreement are not considered hospital care, medical or surgical treatment, or examination furnished by a VA employee or in a VA facility within the meaning of 38 U.S.C.A. § 1151 because VA's Secretary does not have direct jurisdiction over such facility.  See 38 U.S.C.A. § 8153; 38 C.F.R. § 3.361(f)(3).  As such, the Veteran cannot receive compensation under § 1151 for this surgery as a matter of law.  Sabonis , 6 Vet. App. at 429-30.  

Moreover, even if the March 27, 2002, surgery were considered to be eligible VA care, the more probative evidence shows no additional disability, to include a worsening of the Veteran's prior back disability, as a result of the procedure.  

Although the Veteran is competent to report his observable symptoms in the back and lower extremities, he is not competent to state whether the underlying disability itself worsened, due to the complexity of the involved neurological and orthopedic systems.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

There is also no evidence that a failure by VA to promptly provide additional surgery caused additional disability.  To determine whether there is additional disability, the Board must compare the Veteran's condition immediately before the incident at issue to his condition after the incident and related care.  The evidence must show that VA's care, treatment, or examination actually caused additional disability, not merely that additional disability was present after such VA care.  38 C.F.R. § 3.361(b), (c)(1).   

VA treatment records shortly after the March 27, 2002, surgery, and for at least several months thereafter, showed decreased or improved symptoms.  The Veteran was able to ambulate without numbness in the lower extremities, and was jogging as of June 2002.  See VA records dated April 5, 2002, June 2002, and January 2003.  These records are more probative and credible because they were contemporaneous to the alleged symptoms and were made for treatment purposes, several years before the claim for benefits.  Caluza, 7 Vet. App. at 511; Fed.R.Evid. 803(4); Rucker, 10 Vet. App. at 73.  As such, the Veteran is not credible with regard to worsening symptoms after the March 2002 surgery, as his statements are directly in contrast to the medical records immediately before and after the surgery.  

In a January 2004 VA treatment record, the Veteran reported that he had begun having numbness in the anterior thigh and the bottom of the foot, which had recurred, although he was able to walk without difficulty.  The provider advised the Veteran that he had persistent left sciatica after decompressive lumbar laminectomy, that further surgical intervention would probably not change this persistent deficit, and that weight loss may help the numbness in the anterior thigh.  Despite this advice, the Veteran underwent another surgery with a private provider in 2005, after which he reported continued problems in the low back and legs.  Although the provider indicated in January 2004 that there was persistent sciatic after the earlier back surgery, this does not show that the Veteran's back disability was worsened or that he had additional disability as a result of the March 27, 2002, surgery.  Rather, his symptoms had improved through at least January 2003.

In sum, the undisputed evidence shows that the March 27, 2002, procedure was not VA care, treatment, or examination as contemplated by 38 U.S.C.A. § 1151, as a matter of law.  Sabonis, 6 Vet. App. at 429-30.  Moreover, the preponderance of the evidence is against the existence of additional disability as a result of any possible VA care.  Therefore, there is no need to discuss the other requirements for compensation under § 1151, i.e., fault by VA or unforeseeable circumstance.  See 38 C.F.R. § 3.361.  Reasonable doubt does not arise, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied.  38 U.S.C.A. § 5107.


ORDER

Termination of TDIU effective March 1, 2011, was proper; the appeal is denied.

New and material evidence having been received, the previous service connection claim for a back disability is reopened; the appeal is granted to this extent only.

Compensation for a back disability under the provisions of 38 U.S.C.A. § 1151 based on a March 27, 2002, surgery at Travis Air Force Base, is denied.


REMAND

In the August 2010 claim to reopen, the Veteran reported reserves service at Fort Chafee from August 1956 to July 1964, after his period of active duty.  There is no indication that any attempts were made to verify the reported Reserves service or obtain any related service treatment records.  The Veteran claims that he injured his back as a result of jeep accidents in 1954, 1955, and 1956 while on active duty, and that he has had had continuous back symptoms since 1954 that increased over the years.  VA has a duty to assist in obtaining identified, possibly outstanding military records concerning his reported service in the Reserves through 1964 that could help substantiate his claim.  38 C.F.R. § 3.159.  

The Board's finding of new and material evidence to reopen the claim, entitles the Veteran to an examination.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  The record includes evidence of a current disability, treatment in service for back complaints and indications that it might be related to service, there is evidence of intervening post-service back injury, and an examination and opinion are needed.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Verify the exact dates of any service in reserve units from August 1956 to July 1964, to include periods of active duty for training (ACDUTRA) and inactive duty training (IDT).  

2.  Obtain service treatment records pertaining to any such periods of reserve service.

All requests and responses for such records should be documented in the claims file.  Requests should continue until a determination is made that the records do not exist, or any further requests would be futile.  The Veteran should be notified of any such determination, and the attempts made, and allowed an opportunity to provide the missing records.

2.  After completing the above, schedule the Veteran for a VA examination to determine whether a current back disability is related to service.  The entire claims file, including a copy of this remand, should be made available to the examiner for review, and such review should be noted in the examination report (or an addendum).  The examiner should be provided the dates of verified active duty, ACDUTRA, and IDT service.  All indicated tests and studies should be conducted.  

The examiner should consider the following evidence: Service treatment records showing some back complaints; private records from various facilities include a January 2005 report of initial injury in 1959 while working at McClellan Air Force Base (AFB), when an elevator shaft fell 15 to 20 feet, that he had low back pain after that time, and reinjured his back in 1983 and 1986; records from McClellan AFB showing treatment in 1985 and 1986, and that the Veteran was found not fit for duty due to chronic intervertebral disc syndrome (IVDS) and neurological impairment in the legs; a May 1985 letter from the Veteran's long-time family doctor, Dr. WM, indicated that he had been a patient since September 1956 and had off and on back pain, and could no longer do heavy work because of back pain as of January 1985; and a January 2011 private medical opinion linking the current back disability to an in-service injury.

The examiner should respond to the following, based on all pertinent evidence: 

(a)  Is it at least as likely as not (probability of 50 percent or more) that any current back disability had its clinical onset during the Veteran's active duty through July 1956, or was otherwise incurred as a result of injury or disease during active duty service?  

Also, if arthritis is diagnosed, is it at least as likely as not that such disability manifested to a compensable degree (including based on painful motion) within one year after the Veteran's active duty, or by July 1957? 

(b)  If the current back disability was not incurred as a result of the Veteran's active duty, was it at least as likely as not incurred or aggravated as a result of injury or disease in line of duty during a verified period of ACDUTRA, OR as a result of injury in line of duty during a verified period of IDT?

The examiner must provide reasons for any opinion offered, which should be based on all lay and medical evidence.  The Veteran is competent to report his observable symptoms and history.  If the examiner rejects the Veteran's reports, a reason must be provided.  

If the examiner cannot provide an opinion without speculation, he/she should explain why and what, if any, additional evidence is necessary for an opinion.

3.  If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

All claims remanded for additional development or other appropriate action must be handled expeditiously.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).


______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs