Citation Nr: 1439204 Decision Date: 09/03/14 Archive Date: 09/09/14 DOCKET NO. 09-03 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a disorder manifested by numbness of the arms bilaterally, to include as secondary to service-connected residuals of flail chest with multiple rib fractures on the right with post traumatic pleural thickening over the right upper lobe and history of soft tissue contusion and bruises of the back (hereinafter, flail chest and back disorder). 2. Entitlement to a separate rating for residuals of a back disorder, to include neurological manifestations. REPRESENTATION Veteran represented by: Colin E. Kemmerly, Attorney at Law ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran's Department of Defense (DD) Form 214 lists his dates of service as being from September 1968 to August 1971. However, the Veteran has submitted his certificate of Honorable Discharge on which his date of discharge is listed as September 1971. Additionally, the Veteran reported in a February 2009 letter that he was discharged from service in September 1971; he also requested that his records be amended to reflect that date of discharge. Changing the date of discharge on a DD Form 214 is outside the purview of the Board of Veterans' Appeals (Board). However, the Veteran may request this change by filling out and submitting a DD Form 149. The address of the authority to which the Form 149 should be sent is listed thereon. This form may be obtained upon request, or at: http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd0149.pdf This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The claims file was subsequently transferred to the RO in Montgomery, Alabama. These issues were initially before the Board in March 2012. At such time, the Board recharacterized the issue of entitlement to a separate rating for residuals of a back disorder to more accurately reflect the benefit sought by the Veteran, and to afford him consideration of the maximum benefits available under law. The RO's certification of an appeal is for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction of an issue. 38 C.F.R. § 19.35 (2013). Additionally, in March 2012, the Board remanded the claims for additional development and the case now returns for further appellate consideration. As noted in the March 2012 remand, the Veteran was originally represented by the Disabled American Veterans; however, in September 2013 the Board received a VA Form 21-22a, Appointment of Individual as Claimant's Representative, that withdrew power of attorney from Disabled American Veterans and appointed Colin E. Kemmerly, attorney at law, as the Veteran's new representative. Therefore, Mr. Kemmerly's representation is recognized on the first page of this decision. In December 2012 the Veteran requested a copy of his entire claims folder, which was provided to him in July 2013. In October 2013 the case returned to the Board for further appellate consideration. At such time, the Board denied the Veteran's claims of entitlement to service connection for a disorder manifested by numbness of the arms bilaterally and entitlement to a separate rating for residuals of a back disorder, to include neurological manifestations, and remanded the issue of entitlement to service connection for a right hip disorder. The Veteran appealed the October 2013 decision to the United States Court of Appeals for Veterans Claims (Court). In March 2014, the Court, pursuant to a Joint Motion for Remand (JMR), vacated the Board's denial of entitlement to service connection for a disorder manifested by numbness of the arms bilaterally and the claim of entitlement to a separate rating for residuals of a back disorder, to include neurological manifestations, and remanded the issues for readjudication. The Board notes that the issue of entitlement to service connection for a right hip disorder, to include as secondary to service-connected residuals of flail chest with multiple rib fractures, was originally remanded in October 2013 for further development and, at this time, has not yet returned to the Board. Therefore, such issue remains in remand status and the Board will not address it herein. In August 2013 the Veteran's attorney submitted a private medical opinion pertaining to the issue of entitlement to a separate rating for residuals of a back disorder and, in July 2014, he waived consideration by the Agency of Original Jurisdiction (AOJ). Therefore, the Board may consider such newly received evidence. 38 C.F.R. § 20.1304(c). As a final preliminary matter, the Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. A review of the documents in Virtual VA and VBMS reveals that, with the exception of additional VA treatment records dated through August 2012, which were considered by the AOJ in the December 2012 supplemental statement of the case, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA paperless claims reveals additional VA treatment records dated through August 2012, which were considered by the AOJ in the December 2012 supplemental statement of the case, and there is a September 2013 Appellant's Post-Remand Brief submitted by the Veteran's former representative, Disabled American Veterans. FINDINGS OF FACT 1. At no time prior to filing the claim, or during the pendency of the claim, does the Veteran have a current diagnosis of a disorder manifested by numbness of the arms bilaterally. 2. Resolving all doubt in favor of the Veteran, lumbar arthritis, which is separate and distinct from his already service-connected residuals of flail chest with multiple rib fractures on the right with post traumatic pleural thickening over the right upper lobe and history of soft tissue contusion and bruises of the back, is related to his in-service motor vehicle accident. CONCLUSIONS OF LAW 1. The criteria for service connection for a disorder manifested by numbness of the arms bilaterally have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2006), (2013). 2. The criteria for a separate rating for lumbar arthritis are met. 38 U.S.C.A. §§ 1110, 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 4.1, 4.2, 4.7, 4.14, 4.25, 4.71a, General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. As the Board's decision to grant a separate rating for lumbar arthritis herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the VCAA and the implementing regulations with respect to such issue. Regarding the claim of entitlement to service connection for a disorder manifested by numbness of the arms bilaterally, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an April 2007 letters, sent prior to the initial unfavorable decision issued in November 2007, and a March 2012 letter advised the Veteran of the evidence and information necessary to substantiate his service connection claim, to include on a secondary basis, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letters advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. While the March 2012 letter issued after the initial November 2007 rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the March 2006 letter was issued, the Veteran's claims were readjudicated in the December 2012 supplemental statement of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In this regard, at the April 2012 VA examination, the Veteran specifically reported that he had never been tested, evaluated, or sought treatment for his bilateral upper extremity symptoms. Additionally, in May 2012, the Veteran submitted records from his private physician, Dr. McGinley. At such time, he indicated that he was unable to locate medical records from the period from 1971 to 1981. He reported that he received treatment at the US Public Health Service clinic in Mobile, Alabama, but was unable to locate such records. Therefore, the Board finds that there are no relevant, outstanding records to necessary to obtain for a fair adjudication of the Veteran's claims. In addition, the Board notes that the August 2013 private medical opinion, the basis for the JMR, only discusses the Veteran's residuals of a back disorder and does not discuss or pertain to the issue of entitlement to service connection for a disorder manifested by the numbness of the arms bilaterally. The Veteran was also afforded a VA examination in April 2012 with respect to the issue decided herein. The Board finds that such VA examination and accompanying opinions are adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with diagnostic testing. The opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. As indicated previously, in March 2012, the Board remanded the case for additional development. As discussed in the preceding paragraphs, the Veteran was provided with VCAA notice as to the information and evidence necessary to substantiate his claim for service connection for a disorder manifested by numbness of the bilateral arms on a secondary basis in a March 2012 letter. He was also provided with an opportunity to submit records from Dr. McGinley and identify any additional outstanding records in the March 2012 letter. In this regard, the Veteran provided additional private treatment records in May 2012. Furthermore, additional VA treatment records dated through August 2012 were associated with the record. Finally, the Veteran was afforded a VA examination in April 2012 in order to determine the current nature and etiology of any disorder of the arms. Thereafter, the AOJ readjudicated his claim in the December 2012 supplemental statement of the case. Therefore, the Board finds that the AOJ has substantially complied with the March 2012 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. The Board notes that the provisions of 38 C.F.R. § 3.310 were amended during the pendency of the Veteran's appeal, effective October 10, 2006; however, the new provisions state that service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Although the stated intent of the change was merely to implement the requirements of Allen, supra, the Board finds that the new provisions amount to a substantive change to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the Veteran as it does not require the establishment of a baseline level of disability before an award of service connection may granted. See generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Disorder Manifested by Numbness of the Arms Bilaterally The Veteran seeks entitlement to service connection for a disorder manifested by numbness of his arms, which he contends was caused by being forced into "contortionist positions" on the firing range in February 1969, and/or by his documented automobile accident in June 1970. The Veteran also contends that his bilateral arm disorder is secondary to his service-connected flail chest and back disorder, which arose out of the June 1970 automobile accident. In a VA Form 21-4138 submitted in March 2007, the Veteran stated that the numbness in his arms "is related to my [1970 automobile accident] injury and also related to the firing range where I was required to wear a sling on my arms to the point that all circulation was cut off and [each] arm was totally numb." The Veteran reported that a VA orthopedic clinician had asked him whether he felt numbness in his arms, and that he had responded in the affirmative. In his January 2008 notice of disagreement, the Veteran again attributed his bilateral arm numbness to his rifle firing training. The Veteran's service treatment records show that he was discharged as a result of chest and back injuries sustained in an automobile accident which occurred in June 1970, pursuant to the findings of a Medical Evaluation Board. No complaints, diagnosis, or treatment of any arm numbness or other arm disorder appears in his service treatment records. The Veteran's post-service treatment records include an October 2010 primary care note of a complaint of right bicep pain from an injury two months prior; however, no diagnosis was provided. Moreover, there are no other complaints, treatment, or diagnoses pertaining to the Veteran's arms, to include numbness. As the Veteran is competent to describe numbness in his arms, he was afforded a VA examination in April 2012 so as to determine whether any neurologic impairment of the arms was present and, if so, the etiology of such disorder. At such examination, the Veteran reported that his arms have been going numb and tingling ever since his in-service automobile accident; however, the VA examiner noted that such was not supported by the Veteran's service treatment records. The Veteran reported that both his arms became numb and tingled, mostly at night, and sometimes his left arm felt like dead weight when he woke up; he reported that this began one to two times a month for a duration of less than 10 minutes. He denied ever being tested, evaluated, or seeking treatment for his bilateral upper extremity symptoms. The VA examiner noted that an October 2010 VA treatment note indicated the Veteran reported right bicep pain from an injury two months prior, but the details of the injury were not reported. The Veteran reported moderate intermittent pain of the left upper extremity, mild parestheias and/or dysesthesias of the bilateral upper extremities, and numbness of the bilateral upper extremities. Upon muscle strength testing, reflex examination, and sensory examinations, all systems were all normal for the bilateral upper extremities. In addition, his nerves were all found to be normal bilaterally. The VA examiner stated that, despite subjective complaints, there was no objective evidence of bilateral upper extremity numbness, polyneuropathy, or radiculopathy. The Board accords great probative weight to the April 2012 VA examiner's findings as she based her conclusions on an interview with the Veteran, a review of the record, and a full examination. Moreover, she offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Based on the foregoing, the Board finds that, for the entire appeal period, the Veteran does not have a current diagnosis of a disorder manifested by numbness of the arms bilaterally. In this regard, in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). While the Veteran has reported experiencing numbness and tingling in the bilateral arms since service, the Board notes that a symptom, 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. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001). In the instant case, the probative evidence of record fails to demonstrate a current diagnosis of a disorder manifested by numbness of the arms bilaterally at any point during the pendency of the claim. While the Board has also considered the Court's holding in Romanowsky, supra, there is also no probative evidence of a recent diagnosis of disability prior to the Veteran's claim. In this regard, while the Veteran sought treatment in October 2010 for complaints related to the right bicep due to an injury, no diagnosis referable to his arms, to include numbness, was provided. Furthermore, there are no other complaints, treatment, or diagnoses pertaining to the Veteran's arms, to include numbness and the April 2012 VA examination failed to reveal any findings referable to a neurological disorder of the bilateral arms. The Board observes that the Veteran has described experiencing numbness and tingling in his bilateral arms. In this regard, the Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). Specifically, in Jandreau, the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. However, matters of a medical diagnosis for disabilities not capable of lay observation, such as that at issue here, are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). In the instant case, the question of a diagnosis of a neurological disorder of the arms involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such involves the impingement of nerves, which is diagnosed by way of specialized motor, strength, and sensation testing. Therefore, as the Veteran does not have the appropriate medical training and expertise to competently self-diagnose a neurological disorder of the bilateral arms, the lay assertions in this regard have no probative value. Jandreau, supra ("[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. Thus, where, as here, the probative evidence indicates that the Veteran does not have a current diagnosis of a disorder manifested by arm numbness bilaterally for the entire pendency of the claim, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a disorder manifested by arm numbness bilaterally. As such, that doctrine is not applicable in the instant appeals, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Residuals of a Back Disorder In March 2012, the Board recharacterized the issue of entitlement to a separate rating for residuals of a back disorder to more accurately reflect the benefit sought by the Veteran, and to afford him consideration of the maximum benefits available under law. The Board noted that VA lost the Veteran's original claim. In a photocopy of a letter dated February 25, 2005, which VA stamped as received on January 23, 2006, the Veteran's representative at that time requested that "the attached be used to reopen the Veteran's claim for increased evaluation for service connected condition." The listed attachments on that letter-a VA Form 21-4138 and a VA Form 21-22-are not of record. Additionally, in July 2006, the RO in Montgomery, Alabama, informed the Veteran by letter that it had "not been able to locate the original paperwork submitted." It requested that the Veteran resubmit his claim and the associated evidence. The Board further noted that the RO in Cleveland, Ohio, in its November 2007 rating decision, separately adjudicated a claim for an increased rating for the Veteran's service-connected flail chest and back disorder, and a request to reopen a claim for service connection for residuals of a back injury based on new and material evidence. The RO continued the Veteran's rating of 20 percent for his service-connected flail chest and back disorder, and the Veteran did not submit a notice of disagreement as to that issue; consequently, it is not before the Board. Separately, the RO denied the Veteran's request to reopen his claim for service connection for residuals of a back injury, and the Veteran subsequently entered a notice of disagreement as to that issue. Thereafter, the RO issued a statement of the case in December 2008, and the Veteran timely perfected his appeal to the Board in February 2009. The Board found that recharacterizing the issue as entitlement to a separate rating for residuals of a back disorder, to include neurological manifestations, is warranted. In this regard, a back disorder, characterized as a history of soft tissue contusion and bruises of the back, has already been service-connected. Moreover, while the RO found that the Veteran's claim for service connection for a back condition was originally denied in a July 1976 letter associated with a June 1976 rating decision, such is a misreading of those documents. Specifically, the June 1976 rating decision characterizes the issue as "Evaluation of SC [service-connected] residuals of flail chest with multiple rib [fractures] on the right with posttraumatic pleural thickening over right upper lobe [and a history] of soft tissue contusion [and] bruises of [the] back," which had been service-connected in a December 1972 rating decision. The RO in June 1976 concluded that there was "No change shown" in the Veteran's service-connected condition. Furthermore, at no point in either the June 1976 rating decision or the July 1976 letter did the RO state that service connection was being denied. As such, the clear conclusion-and the most favorable to the Veteran-is that the June 1976 rating decision and accompanying letter was a denial of an increased rating, and not a denial of a new claim for service connection. As such, the Board found that there was no prior denial of service connection. Consequently, the Board then recharacterized the issue as entitlement to a separate rating for residuals of a back disorder, to include neurological manifestations. The Board then remanded in order for the Veteran to be provided a VA examination to determine the residuals of a back disorder, to include neurological manifestations. The Veteran is currently service-connected for residuals of flail chest with multiple rib fractures on the right with post traumatic pleural thickening over the right upper lobe and history of soft tissue contusion and bruises of the back with a 20 percent disability rating. He is rated as 20 percent disabling under Diagnostic Codes 6844-5297; 38 C.F.R. § 4.97, Diagnostic Code 6844, is for post-surgical residuals pertaining to lung disorders (lobectomy, pneumonectomy, etc) and 38 C.F.R. § 4.71a, Diagnostic Code 5297 pertains to the removal of ribs. In this regard, the Board specifically notes that such Diagnostic Codes do not contemplate symptoms associated with the thoracolumbar spine. See General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. In addition to the previously noted laws and regulations governing service connection, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the appellant's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disabilities of the spine are evaluated pursuant to the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. Additionally, a Note to such criteria provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. The Veteran alleges that he is entitled to a separate rating for residuals of a back disorder. In this regard, he reported in a February 2009 letter associated with his substantive appeal that "I have had back problems ever since" the June 1970 automobile accident. Therefore, he claims that he is entitled to a separate rating for residuals of a back disorder as such is related to his military service or his service-connected flail chest and back disorder. The Veteran's service treatment records reflect that he was involved in a motor vehicle accident in June 1970 in which he sustained a flail chest and fractured ribs. It was noted that he also allegedly sustained some bruises and contusions to the back. He was subsequently hospitalized from July 1970 to September 1970. In July 1971, the Veteran presented for a Medical Board. It was noted that he was one year post-flail chest injury and was still unable to perform his full duties. The Medical Board noted that the Veteran's June 1970 motor vehicle accident resulted in a flail chest injury with fractures of the rib as well as some soft tissue contusions and bruises of the back. Since such time, it was observed that the Veteran had persistently complained of chest pain and pain in the back. He was reevaluated by the Medical Board in June 1971 and was found to have an essentially normal physical examination. The final diagnosis was post-flail chest, fractured ribs, and post-soft tissue injuries of the mid-thoracic back. The Medical Board determined that the Veteran suffered from chronic, soft tissue contusions to the chest and back, which prevented him from performing full duties as a Marine. At a November 1972 VA examination, the Veteran reported that, since his in-service motor vehicle accident, he continued to have back pain beginning in the low part of his back and radiating up to under the shoulder blades on each side. Following a physical examination, which was normal with the exception of an appearance of some mild upper dorsal kyphosis, the examiner diagnosed low back pain, etiology undetermined. Based on such findings, a December 1972 rating decision granted service connection for residuals of flail chest with multiple rib fractures on the right with posttraumatic pleural thickening over right upper lobe and history of soft tissue contusion and bruises of the back. An April 1976 private physician's statement indicated that the Veteran had complaints of low back pain from a service-related accident in 1970. Following a physical examination, residual pain from old fractures, muscle spasm, and limited vertebral extension were diagnosed. A June 1976 VA examination revealed that the Veteran's back was normal upon clinical evaluation. History of soft tissue contusion and bruise of the back was diagnosed. Records from Dr. McGinley dated from October 1985 to January 2011, while revealing complaints for numerous maladies, are negative for any complaints, findings, or diagnoses referable to the Veteran's back with the exception of records dated in June 2003 and January 2011. A June 2003 record from Dr. McGinley revealed complaints of a flare-up of low back pain for the prior three months. Upon examination, the Veteran had full back motion, negative straight leg raising, and no neurologic deficits. X-rays showed mild facet degenerative changes with no disc space narrowing. The diagnosis was lumbar degenerative disc syndrome. In November 2006 a VA physician took an x-ray of the Veteran's spine and found normal appearing vertebral body height, alignment, and disc spaces. He further found that no paraspinous soft tissue abnormality was suggested. The physician's impression was "No specific findings." In January 2007, another VA physician found that x-rays of the Veteran's back were fairly unremarkable. Additionally, a March 2007 VA examiner who examined the Veteran for his increased rating claim for his service-connected flail chest and back disorder did not diagnose any current back disorder, and found that there were no constitutional signs of bone disease. A January 2011 private treatment record from Dr. McGinley reveals complaints related to the Veteran's back. It was noted that he was previously seen in 2003 with symptoms compatible with lumbar disc syndrome; however, X-rays at that time showed only mild facet degenerative changes. Upon physical examination, the Veteran had full back motion, negative straight leg raising, and no neurologic deficits. The diagnosis was asymptomatic lumbar osteoarthritis. Dr. McGinley noted that the Veteran had no complaints related to such problem and had been provided with no medicine from his office since 2003. Additionally, no treatment was anticipated for such problem. In order to determine whether the Veteran has a separate back disorder related to his military service or his service-connected fail chest and back disorder, he was afforded a VA examination in April 2012. At such time, the examiner provided a diagnosis of soft tissue contusion and bruises of the back (mid-thoracic back). The Veteran reported that his current symptomatology was lower back pain with morning stiffness. The VA examiner noted that a January 2007 VA orthopedic note stated that the Veteran had chronic low back pain secondary to multiple factors and was recommended for weight reduction and an exercise program. At the April 2012 VA examination, the Veteran reported that he had low back pain since 1971. Upon physical examination, the Veteran's range of motion for flexion was 85 degrees with pain, extension was 30 degrees or greater, bilateral lateral flexion was 20 degrees, and bilateral rotation was 30 degrees or greater. The Veteran was able to perform repetitive use testing. His reflex examinations and sensory examinations were normal bilaterally for his knees, ankles, upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. His straight leg raising tests were negative bilaterally and there was no evidence of radiculopathy. The April 2012 VA examiner opined that the Veteran's soft tissue contusion and bruises of the back were resolved with no residuals and there was no objective evidence of any residuals of a thoracic back condition, to include soft tissue contusion and bruises of the back on clinical examination. In this regard, she noted that the July 1971 Medical Board and December [November] 1972 VA examination report noted soft tissue injuries of the mid-thoracic back (not the lower back). The examiner further determined that the Veteran's lumbar strain (which had also been claimed as a back disorder) was not caused by, related to, or aggravated by his military service or soft tissue contusion and bruises of the back. In this regard, she indicated that there was no clinical correlation/nexus between soft tissue contusion and bruises of the back and lumbar strain as such affected different anatomical sites. Additionally, the Veteran's service treatment records, including the July 1971 Medical Board, were silent for lumbar strain. The examiner further noted that the onset was 25 years post-service and was aggravated by the Veteran's body mass index of 34. In support of such finding, she noted the January 2007 VA treatment record that diagnosed chronic low back pain secondary to multiple factors and recommended weight reduction and exercise program. In August 2013 a private opinion was rendered by a registered nurse, A.C. In such document, she stated that she reviewed and analyzed the Veteran's claims file. She discussed the Veteran's in-service injury and stated that a contusion is a blunt, compressive injury that does not involve a break in the skin and that contusions caused damage to the skin and underlying soft tissue; any organ in the body can sustain a contusion injury. She stated that contusions are usually caused by a fall or a direct blow from a blunt object. If the contusion is superficial, it involved only the skin and tissue immediately below the skin; if the contusion is deep, the muscle and bone may also be involved. A.C. further stated that automobile accidents have the ability to create long term effects that can be felt for a long term after the event; common injuries that result from motor vehicle accidents are those that cause damage to the soft tissue. She stated that, during a motor vehicle accident, the body may be thrown suddenly forward, backward, and sideways; these movements can cause hyperextension and hyperfelxion that can cause muscles, ligaments, and tendons to overstretch and tear. She further described the nature of tissue injuries. A.C. noted that the Veteran underwent physical therapy after his in-service motor vehicle accident and he suffered another back injury in May 1972, within one year of his discharge from the military and was diagnosed with back strain at that time. Lumbar spine x-rays reported normal findings, even after the Veteran had continued complaints of low back pain. She indicated that a June 1972 examiner reported that the Veteran apparently sustained severe back strain in a motor vehicle accident two years prior that caused recurrent symptomatology and that he was prescribed a flexion exercise regimen, pain medication, heat, and bed rest. She stated that spine x-rays cannot directly visualize discs and that they are typically performed to confirm or exclude other possible causes of back pain, such as tumors, infections, or fractures. Magnetic resonance imaging (MRI) is the radiographic test of choice when evaluating the spine because it provides bones and soft tissue detail. The relationship between clinical symptoms, such as back pain, and radiographic findings is not straightforward. Pain may be present when x-ray or MRI findings are normal. She then discussed a November 2006 normal x-ray study but a June 2013 MRI revealed congenital spinal stenosis at L4-L5 accentuated by facet arthritic change and moderate arthritic change involving the facets at L4-L5 and L5-S1. It was noted that congenital spinal stenosis is when someone is born with an atypical narrow spinal cord, which may predispose someone to a greater risk for symptomatic stenosis later on in life. A.C. then stated that back conditions may be caused by a genetic predisposition, such as congenital spinal stenosis or a tissue response to an insult or altered mechanical environment, such as from a motor vehicle accident. She stated it was impossible to determine with certainty, the exact cause of the Veteran's lumbar arthritis change; however, the evidence in the Veteran's claims file suggests that it is at least likely as not that the Veteran's in-service motor vehicle accident contributed to the onset of his lumbar arthritis. She noted that the Veteran complained of low back pain following his in-service back injury and he continued to suffer from low back pain. A.C. indicated that a single injury can cause spine degeneration and back injuries contribute to the development of arthritis. Furthermore, the Veteran did not have a history of muscoskeltal problems prior to military service. She opined that it was at least likely as not that the Veteran's current lumbar MRI findings of arthritis, along with his ongoing symptoms of back pain, is the result of his in-service back injury. Parenthetically, the Board notes that A.C. references a post-service accident in May 1972 that resulted in back strain; however, the record is entirely negative for such an incident. Regardless, the Board finds that such misstatement of fact does not render her opinion nonprobative as such is not material to the inquiry as to whether the Veteran has a current back disorder, separate and distinct from his already rated residuals of flail chest with multiple rib fractures on the right with post traumatic pleural thickening over the right upper lobe and history of soft tissue contusion and bruises of the back, that is related to his in-service motor vehicle accident. Based on the foregoing, the Board finds that the Veteran has a current diagnosis of a residual of a back disorder, i.e., lumbar arthritis. Furthermore, as previously discussed, the Veteran's service treatment records reflect that he suffered a back injury as a result of a June 1970 motor vehicle accident. Moreover, such records reflect ongoing complaints and treatment referable to this in-service motor vehicle accident and a July 1971 Medical Board diagnosed the Veteran with post-flail chest, fractured ribs, and post-soft tissue injuries of the mid-thoracic back. The Medical Board determined that he suffered from chronic, soft tissue contusions to the chest and back. Therefore, this case turns on the question of whether the Veteran has a disability of the back that is separate and distinct from his already service-connected residuals of flail chest with multiple rib fractures on the right with post traumatic pleural thickening over the right upper lobe and history of soft tissue contusion and bruises of the back, that is related to his military service, to include his in-service motor vehicle accident. Initially, the Board notes that the Veteran is already service-connected for residuals of flail chest with multiple rib fractures on the right with post traumatic pleural thickening over the right upper lobe and history of soft tissue contusion and bruises of the back with a 20 percent rating. However, as indicated previously, such disability is evaluated under Diagnostic Codes 6844-5297. 38 C.F.R. § 4.97, Diagnostic Code 6844, is for post-surgical residuals pertaining to lung disorders (lobectomy, pneumonectomy, etc) and 38 C.F.R. § 4.71a, Diagnostic Code 5297 pertains to the removal of ribs. In this regard, the Board specifically notes that such Diagnostic Codes do not contemplate symptoms associated with the thoracolumbar spine. See General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Therefore, as an initial matter, the Board finds that, to assign a separate rating for lumbar arthritis would not result in pyramiding as such disorder, and its symptoms, is separate and distinct from his lung and rib disability, and its symptoms. See Esteban, supra. Therefore, the remaining inquiry is whether the Veteran's lumbar arthritis is related to his military service, to include his motor vehicle accident. In this case, there are conflicting medical opinions of record proffered by the April 2012 VA examiner and A.C., a registered nurse, in August 2013. The Board finds that both opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Consequently, the evidence of whether the Veteran's lumbar arthritis is related to his military service is in relative equipoise. Therefore, the Board will resolve all doubt in his favor, and finds that a separate rating for such disorder is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. In rendering this decision, the Board advises the Veteran that the AOJ is responsible for assigning such rating based on the level of severity of such disability and an effective date of the award of such rating. ORDER Service connection for a disorder manifested by numbness of the arms bilaterally is denied. A separate rating for lumbar arthritis is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs