Citation Nr: 1423398 Decision Date: 05/22/14 Archive Date: 05/29/14 DOCKET NO. 12-05 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbar spine with secondary osteoarthritis, spondylolysis, severe spinal stenosis, and sciatica. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to January 1983. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). By correspondence dated in March 2012, the Veteran revoked representation by The American Legion. In May 2012, the Board remanded these matters for additional development. The issue of a TDIU is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT It is reasonably shown that a preexisting low back disability permanently worsened beyond its natural progress during service. CONCLUSION OF LAW As the Veteran's preexisting low back disability was aggravated during service, service connection for degenerative disc disease of the lumbar spine is warranted. 38 U.S.C.A. §§ 1111, 1112, 1131, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There is no need to undertake any review of compliance with the VCAA and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran, with respect to the service connection claim, is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letters dated in April and July 2010 the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. Legal Criteria, Factual Background and Analysis The Veteran claims entitlement to service connection for a low back disability. Essentially, he contends that a preexisting low back disability permanently worsened beyond its natural progress during service. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertinent to the manifestation of the disability prior to, during and subsequent to service. Id. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). Accordingly, 'a lasting worsening of the condition'--that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before the VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 03-2003 (July 16, 2003). In certain situations, a Veteran's own statements that his current disorder or disease preexisted his active service may serve, even in the absence of verifying clinical evidence, as clear and unmistakable evidence sufficient to rebut the presumption of soundness. See Harris v. West, 203 F.3d 1347, 1350 (Fed. Cir. 2000), which noted that 38 U.S.C.A. § 1111 does not limit the kind of evidence that can be used to rebut the presumption of soundness to medical evidence, and, that 38 C.F.R. § 3.304(b) in fact notes the need to consider the history of pre-service conditions recorded at the time of examination as well as other evidence of record. If a pre-existing disorder is noted upon entry into service, the Veteran cannot bring a claim for service incurrence for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case, the provisions of 38 U.S.C.A § 1153 and 38 C.F.R. § 3.306 apply, and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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); Layno, 6 Vet. App. at 469; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board observes that a Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (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 facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an 'absolute bar' to the service connection claim); Barr, 21 Vet. App. 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert, 1 Vet. App. at 55. The Board further notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Here, the Board observes that the Veteran's service treatment records (STRs) are missing. According to the National Personnel Records Center (NPRC), the Veteran filed a claim at separation and the STRs were sent to San Francisco, California on January 24, 1983. An August 2010 memorandum regarding formal findings of federal records unavailability, notes that the RO determined that the STRs were unavailable for review. All procedures to obtain the Veteran's STRs had been correctly followed, and all efforts to obtain the needed information had been exhausted and further attempts were futile. In cases such as this, the VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim was undertaken with this duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Of record is the Veteran's personnel record (DD Form 214), which shows his military occupational specialty (MOS) as a track vehicle mechanic. Also of record is his October 1975 medical examination for enlistment into military service, which notes he had back pain due to a previous back injury. At the October 2011 personal hearing before a decision review officer, the Veteran testified that he entered the military with a preexisting back disorder. He had been involved in a head-on collision with a city bus "right before military service." He stated that at his service entrance examination, x-rays were taken and he was diagnosed with acute cervical and lumbosacral strain with a history of back pain (the Board notes that the copy of the 1975 enlistment examination contained in the Veteran's claims file is illegible, but that diagnosis can be deciphered, although barely). He stated that constant and chronic pain was always triggered by and brought on by the constant tweaking, bending, and twisting, and being in vary awkward positions for long periods of time while performing duties as a heavy track vehicle mechanic specializing in M113-A1 armored personnel carriers. Furthermore, there was the constant strain of running one to two miles (5 or 6 days a week) wearing combat boots. While stationed in Germany (assigned to A Company, 1st Battalion, 46th Infantry from July 1976 to July 1978) on numerous occasions he complained and reported to sick call for chronic low-back and leg pains. He was treated with pain medications, two to three days bedrest, and put on profile. The physical training continued throughout his 7-year military career. He did not undergo a medical examination at separation; he stated he was never offered and exit examination. Of record is a report of a December 2009 MRI which showed degenerative disc disease. A December 2010 private examination performed at the request of the Social Security Administration (SSA) revealed the Veteran complained of low back pain, which he reported having since he was involved in a motor vehicle accident at age 17 or 18 years old. The diagnostic impression was chronic low back pain with associated bilateral lower extremity pain and numbness. At the October 2011 local personal hearing, the Veteran testified that he had suffered with pain in his back since military service. After service he self-medicated. He was unable to do any substantial work as a truck driver because of the pain and the various medications he took on a daily basis. He stated that he filed a claim for VA compensation in January 1983 but did not follow through because he was told that his medical records were missing. Notably, the record contains a VA Application for Compensation received at the RO January 31, 1983 (one week after the Veteran's date of separation from service). At the hearing the Veteran read a statement submitted by his ex-wife. She noted that she was with the Veteran at all of his duty stations during service, and personally witnessed his ongoing back problems. She acknowledged he had been in a very bad car accident with a bus in his late teenage years. She recalled that many days (during service) he complained of back and leg pain and went to sick call. He was prescribed pain pills and (sometimes) bedrest for a few days. She noted that for years she would massaged his back. She noted that since military service, he continued to suffer with back pain. Currently the pain is more severe; with the side-effects from the medication he is always tired, sleeping, and not wanting to do anything. She stated "I can see he is a totally changed man for the worse." A statement by the Veteran's brother, also read at the hearing, noted the Veteran had back pain since a car accident that occurred prior to military service when the Veteran was 18 years old. He recalled conversations about the Veteran's back problems while they were both serving on active duty. He noted that after the Veteran served 7 years in the military he still suffers from back symptoms and sometimes walked with a cane. He further noted that the SSA determined the Veteran was disabled due to his back condition. In January 2012 a VA physician opined that it is less likely as not that the Veteran's preexisting low back condition was permanently aggravated by his military service as a heavy track vehicle mechanic. She indicated that the reason for her opinion was the absence of corroborable evidence to support the premise of aggravation of the Veteran's preexisting low back condition on account of military service, and that continuity of symptoms of a worsened low back condition during the period of time from 1983 to 2008 could not be established with the available evidence. Interestingly, she noted that if the Veteran's brother and wife and his own testimony were admitted by VA as substantial or preponderant evidence to support his claim (in the absence of other evidence) then further evaluation in light of such testimonies would serve to determine the possibility and degree of nexus. She also noted that if any documentation evidencing that the Veteran continued having progressively worse back problems just after 1983 up to 2008 is made available in the future, he would benefit from a new VA evaluation in which such evidence could be considered. On careful review of the record, the Board finds there is competent and credible evidence that the Veteran's preexisting low back disability permanently worsened during service and he continued to have progressively worse back problems after service. It has been well established that the Veteran entered active service with a preexisting low back disorder. The Veteran testified essentially that he aggravated his back during service while performing duties as a heavy track vehicle mechanic and in that job there was constant tweaking, bending, and twisting, and being in awkward positions for long periods of time. The 2012 VA physician noted that physical activities associated with the Veteran's MOS included prolonged standing, repetitive twisting and bending, stretching, reaching out, lifting, pushing, pulling or carrying heavy objects, which could be a cause of back injury. The Veteran also testified (and his ex-wife noted in her statement) that he was treated in service for chronic low back and leg pain on numerous occasions. Furthermore, one week following separation from service (January 1983) the Veteran applied for VA disability compensation. He did not name the disability, but simply referred to his service medical records. He failed to report for an examination. Under these circumstances, the Board cannot be sure that this claim involved a back disorder, but it is worthy to note that the claims file does not show that he has ever filed a claim for any other disability other than his current back disability claim. The Board acknowledges the negative etiology opinion by the VA physician. However, that opinion is based in large part on the lack of service records documenting the claimed back complaints. Again, the Veteran's service treatment records cannot be located. However, the Veteran's testimony (and statements of his ex-wife) concerning his in-service visits to sick call for treatment for low back symptoms is competent lay evidence and the Board finds no persuasive reason to doubt the credibility of such lay evidence. Thus, the Board finds that it is reasonable to conclude, resolving reasonable doubt in the Veteran's favor that the Veteran's preexisting low back disability permanently worsened beyond its natural progress during service. ORDER Service connection for degenerative disc disease of the lumbar spine is warranted. To that extent, the appeal is granted. REMAND The September 2010 rating decision denied entitlement to a TDIU on the bases that the Veteran had not been found unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. At the time of that rating decision service connection had not been established for any disability. However, service connection has now been granted for degenerative disc disease of the lumbar spine pursuant to the foregoing Board decision. Appropriate medical examination to address the unemployability claim is warranted. Given the foregoing, the Board finds that the record should be augmented by updated outpatient records (at the 2011 hearing the Veteran indicated ongoing VA treatment) and a physical examination that would also provide an opinion concerning unemployability. Accordingly, the case is REMANDED for the following actions: 1. Obtain for association with the claims file updated VA outpatient records of treatment for the Veteran's low back disability since December 2011 (date of latest records in Virtual VA). 2. Schedule the Veteran for a VA spine examination for the purpose of determining the current level of impairment from the service-connected low back disability. The examiner should also furnish an opinion as to whether the Veteran's low back disability, in and of itself, precludes "substantially gainful" employment. The claims file must be forwarded to the examiner for review. In particular, the examiner should (a) comment generally on the functional and industrial impairment caused by the service-connected low back disability; and (b) indicate whether, without consideration of the Veteran's age and any nonservice-connected disabilities, the service-connected low back disability results in his unemployability. The examiner is advised that "substantially gainful" employment means work that is more than marginal and permits an individual to earn a "living wage" consistent with his education and occupational experience. A complete rationale for all opinions must be provided. 3. After the development has been completed, readjudicate the claim for a TDIU. If the benefit sought is denied, furnish the Veteran a supplemental statement of the case and return the case to the Board. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs