Citation Nr: 0331459 Decision Date: 11/13/03 Archive Date: 02/11/04 DOCKET NO. 03-08 464 On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES . Entitlement to service connection for degenerative disc disease of the T12-S1 vertebrae. Entitlement to service connection for degenerative changes of the right shoulder joint. Entitlement to service connection for degenerative changes of the knees, bilateral. Entitlement to a compensable rating for service-connected rheumatoid arthritis of multiple joints. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty with the United States Army from April 1942 to October 1945. . This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of February 2002 from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied a compensable rating for service-connected rheumatoid arthritis of multiple joints, and denied service connection for degenerative disc disease of the T12-Sl vertebrae, for degenerative changes of the right shoulder joint, and for degenerative changes of the knees; bilateral. The veteran filed a timely Notice of Disagreement, and was issued a Statement of the Case in March 2003. In his Substantive Appeal (VA Form 9), the claimant declined a hearing before a Veterans Law Judge of the Board of Veterans' Appeals. The Board notes at the outset that a rating decision of August 1948 granted service connection for rheumatoid arthritis of multiple joints, based upon a 1948 VA hospital summary which showed symptoms of swollen wrists, painful joints in both hips, both knees, both ankles, both heels, the low lumber spine, and the right distal thumb joint. The record further shows that a rating decision of August 1949 increased the evaluation for the veteran's service-connected rheumatoid arthritis of multiple joints from a noncompensable rating to 30 percent disabling, effective January 21,1949. Thereafter, a rating decision of September 1961 reduced the evaluation of the veteran's service-connected rheumatoid arthritis of multiple joints from a 30 percent evaluation to a noncompensable evaluation, effective November 5, 1961. Thus, service connection for rheumatoid arthritis has remained continuously in effect since March 1, 1948, without interruption, and the record - 2 shows that no action has ben undertaken to sever service connection for rheumatic arthritis of multiple joints pursuant to 38 C.F.R. §3.951 (2003). In October 2003, the veteran's representative submitted a Motion to Advance the appellant's case on the docket pursuant to 38 C.F .R. §, 20.900( c) because the veteran is In excess of 75 years of age. That Motion to Advance the veteran's appeal on the docket was considered by the Vice Chairman of the Board in October 2003 and granted on the basis that the claimant is 82 years of age. There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096,209798 (2000) [codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2000)]. This law eliminates the concept of a well-grounded claim, redefines the obligations of V A with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims (the Court) in Morto West, 12 Vet. App. 477 (1999), withdrawn sub nom.' Morton v. Gober, No. 96-1517 . (U.S. Vet. App. Nov. 6,2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). Final regulations to effectuate the VCAA were published on August 29, 2001 with the same effective date of the VCAA, November 9, 2000. Except for the amendment to 38 CFR § 3.156(a), the second sentence of38 CFR § 3.159(c), and 38 CFR § 3.159(c)(4)(iii), effective August 29,2001, governing reopening of previously and finally denied claims, the provisions of this final rule apply to any claim for benefits received by VA on or after November 9,2000, as well as to any claim filed before that date but not decided by VA as of that date. As the instant appeal does not address a reopened claim, the revised regulations pertaining to reopened claims are inapplicable to this appeal. The record shows that the claimant and his representative were notified of the provisions of the VCAA by RO letter of July 9, 2001, which informed them of VA's duty to notify them of the information and evidence necessary to substantiate the claim for a compensable rating for service-connected rheumatic arthritis of multiple joints and to assist them in obtaining all such evidence. That letter also - 3 informed the claimant and his representative which part of that evidence would be obtained by the RO and which part of that evidence would be obtained by the claimant, pursuant to Quartuccio v. Principi, 16 Vet. App. 183,187 (2002) (requiring VA to notify the claimant of what evidence he or she was required to provide and what evidence the VA would attempt to obtain). In a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22,2003), the United States Court of Appeals for the Federal Circuit invalidated the' 30-day response period contained in 38 C.F.R. § 3.159(b)(l) as inconsistent with 38 U.S.C.§ 5103(b)(l). The Court found that the 30-day period provided in § 3.159(b)(l) to respond to a VCAA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. In the case now before the Board of Veterans' Appeals, the RO sent the veteran a VCAA letter in which the veteran was informed that he had 60 days to provide evidence. Thus, the letter provided for a period shorter than one year and was misleading. However, the development of the case was continued beyond the 60day period, and the veteran was informed of additional opportunities to submit evidence over the course of the year following the misleading letter. In December 2001, for example, a VA physician was asked to review medical reports and provide a medical opinion concerning the veteran's disabilities. In addition, in April 2003, the RO notified the veteran that his claim was being forwarded to the Board of Veterans' Appeals, and that he could submit additional evidence to the Board. In this case, the development of the evidentiary record continued for more than one year after the VCAA letter of July 2001. As a result, the veteran was not disadvantaged despite the misleading information regarding the 60-dayperiod in which he could provide evidence. The claimant and his representative were also provided a Supplemental Statement of the Case on December 5, 2002, which informed them of the issues on appeal, the evidence considered, the adjudicative actions taken, the pertinent law and regulations pertaining to direct and secondary service connection and to increased - 4 ratings, the applicable provisions of the VA's Schedule for Rating Disabilities, the decisions reached, and the reasons and bases for those decisions. That Supplemental Statement of the Case also notified the claimant and his representative of VA's duty to assist them by obtaining all evidence in the custody of military, authorities or maintained by any other federal, State or local government agency, as well as any medical, employment, or other non-government records which are pertinent or specific to that claim; and which the claimant identified and provided record release authorizations permitting VA to obtain those records. Further, that Supplemental Statement of the Case informed the claimant and his representative that should efforts to obtain records identified by the claimant prove unsuccessful for any reason which the claimant could remedy, the VA would notify the claimant and advise him that the ultimate responsibility for furnishing such evidence lay with the claimant. The Board finds that all relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO, and'that V A's duty of notification to the claimant and his representative of required information and evidence and of its duty to assist them in obtaining all evidence necessary to substantiate the issues on appeal have been fully met. The RO has obtained the claimant's complete service medical records, as well as all private or VA medical evidence identified by the claimant. The RO has further afforded the veteran a VA orthopedic examination, with a medical opinion, in July 2001. The veteran has declined a hearing before an RO Hearing Officer or before a Veterans Law Judge of the Board of Veterans' Appeals. N either the appellant nor his representative have argued a notice or duty to assist violation under the VCAA, and the Board finds that there is no question that the appellant and his representative were fully notified and aware of the type of evidence required to substantiate the claim. In view of the extensive factual development in the case, as demonstrated by the Board's April 1997 and May 2000 remands and the record on appeal, the Board finds that there is no reasonable possibility that further assistance would aid in substantiating this appeal. For those reasons, further development is not necessary for compliance with the provisions of 38 U.S.C.A. §§ 5103 and 5103A (West 2000). - 5 FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO, and VA's duty of notification to the claimant of required information and evidence and of its duty to assist him in obtaining all evidence necessary to substantiate his claim have been fully met. 2. The record includes competent medical and radiologic evidence and opinion to the effect that the claimant's degenerative disc disease ofT12-S1, with degenerative spurring, his degenerative disease of the right shoulder, and his advanced degenerative joint disease of the right knee, are mostly age-related degenerative polyarthritis and not rheumatoid arthritis, but that rheumatoid arthritis of the right knee cannot be excluded. \ 3. Degenerative disc disease ofT12-S1, with degenerative spurring, degenerative. disease of the right shoulder, and advanced degenerative joint disease of the knees, bilaterally, were not shown in service, at the time of service separation, or within the initial postservice year. 4. The veteran's service-connected rheumatoid arthritis of multiple joints is currently manifested by persistent pain, stiffness, warmth, and swelling in the right knee, with moderate tenderness to palpation, evidence of weakened movement, limitation of range of right knee motion from 0 to 75 degrees of extension, excess fatigability, incoordination, or functional loss due to pain on use or flare-ups when the joint in question is used repeatedly over a period of time, without competent medical evidence showing objective clinical findings of rheumatoid arthritis as an active process with constitutional manifestations associated with active joint involvement, or with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods, or with symptom combinations productive of definite impairment of health objectively supported by examination - 6 findings or incapacitating exacerbations occurring three or more times a year, or manifested by one or two exacerbations a year in a well-established diagnosis. 5. The veteran's service-connected rheumatic arthritis of multiple joints does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular scheduler standards. CONCLUSIONS OF LAW 1. The veteran's service-connected rheumatoid arthritis of multiple joints warrants the assignment of a 20 percent evaluation. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. § 3.102, Part 4, §§ 4.40, 4.45, 4.59, 4.7la, Diagnostic Code 5002 (2003). 2. The grant of service connection is not warranted for degenerative changes of the T12-S1 vertebrae, the right shoulder joint, or the knees. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002): 38 C.F.R. §§ 3.102, 3.303(a) (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Evidence The record shows that the veteran's service entry examination disclosed no pertinent abnormalities. His service medical records show that in September 1942, June 1943, and May 1944, the veteran was admitted for nasopharyngitis, catarrhal, acute, and offered a history of hay fever since age 12. In September 1943, the veteran was seen for complaints of diarrhea and slight abdominal cramps, diagnosed as gastroenteritis, acute, type and cause unknown, The impression was gastric neurosis, and he underwent a complete work-up. Laboratory tests revealed no ova or parasites, Shilling's test was negative, urinalysis was negative, and a chest X-ray showed no abnormalities. In December 1943, the veteran complained of epigastric - 7 pain. In May and October 1944, his admission diagnoses was fever of unknown origin, but at hospital discharge, the diagnoses included nasopharyngitis, catarrhal, acute; chronic bilateral allergic rhinitis, moderate, cause undetermined; deviation of the nasal septum, bilateral, cause undetermined; and acute mild stomatis, type and cause unknown. In September 1944, his sedimentation rate was 23, while in October 1944, his sedimentation rate was 10. In May 1945, he was admitted for recurrent severe hayfever, and the diagnoses on discharge in June 1945 were hay fever, moderate, cause undetermined; and rhinitis, chronic, catarrhal, mild, cause undetermined. His service medical records are silent for complaint, treatment, findings or diagnosis of rheumatic arthritis or joint pain. His service separation examination, conducted in October 1945, showed no musculoskeletal defects and no other pertinent abnormalities. The veteran's original application for IV A disability compensation benefits, received in September 1947, made no mention of rheumatic fever. , , A rating decision of October 1947 denied service connection for a mild tension state, for hay fever and rhinitis, claimed as sinusitis; and for a stomach condition. The claimant and his representative were notified of those determinations and of his right to appeal by RO letter of October 27, 1947. The claimant did not appeal those decisions, but submitted additional evidence within the appeal period. In a letter from the veteran's representative, received at the RO in June 1948, he asserted that he was enclosing documentation in support of the veteran's claim for service connection for nervousness and a stomach condition due to active service. A June 1948 letter from the veteran asserted, in substance; that he had been treated for nervous tension, epigastric symptoms, fevers and chest pain while on active duty; that he had been treated for a "fever of undetermined origin"; that he experienced nervous tension and irritability; that during the summer of 1946, he had frequent episodes of hay fever, a sinus condition, and infected teeth; and that he had been diagnosed with rheumatic fever. He further related that three months following service separation, he saw Dr. J.N.D. for joint pain. - 8 In support of his claim, the veteran submitted a VA hospital summary, dated in April 1948, which showed that he was admitted with a history of swollen wrists three months prior to admission, and lumbar spine aches 11 weeks prior to admission, and that six weeks prior to admission, he had been hospitalized and told that he had rheumatic fever, given salicylate therapy and then returned to work. He related that he continued to experience aching and stiffness in his joints; that various treatments were unavailing, and that he was admitted in April 1948 with pain in his lower lumbar spine, both hips, both knees, both ankles, both heels, and right distal thumb joint. Laboratory findings included a sedimentation rate of 45 mm., with a sedimentation rate of 20 mm. one hour later. X-rays showed no lesions of the bony structures, a normal chest, a normal cholecystogram, and a normal gastrointestinal series, with a normal muscle biopsy. The joint inflammation subsided with salicylate therapy, and he was given a one-month pass from the hospital, but returned 18 days later with an extremely sore throat. He was admitted an4 found to have a temperature of 101 degrees, a pulse rate of 100, an elevated white count, an elevated sedimentation rate, and an infected membrane at the site of the removal of the right tonsil. He was treated with Penicillin, and that lesion subsided. A throat culture revealed no specific organism and the impression was Vincent's infection. The diagnoses on hospital admission were rheumatoid arthritis, multiple; acute pharyngitis due to Vincent's infection; and tonsillectomy. It was recommended that he follow-up with VA outpatient treatment for anti-allergy injections. A June 1948 letter from a private physician (Dr. J.N.D.) stated that the veteran was seen in February 1946 for complaints of anorexia, stomach distress, aches and pains all over his body, but especially in the hip joints, and weight loss; and that in March 1948, he had an acute exacerbation of arthritis and was sent to St. Jude's Hospital, where there was considerable improvement after 10 days. The corresponding physician stated that tonsillectomy and medication was advised, and that the veteran was sent to the VA hospital for further care. A June 1948 letter from Dr. R.J.W., a dentist, stated that the veteran had been a patient since April 1957; and that his teeth were in good condition when last checked in April 1942, just a few weeks before he entered service. - 9 A summary of the veteran's treatment from the medical records librarian at St. Jude's Hospital shows that the veteran was admitted to that facility for three days if, November 1946 for excessive bleeding following dental extraction; that he was again seen in December 1946 for treatment of a laceration of the thumb; and that he was again admitted for ten days in March 1948 for subacute arthritis; and that on each occasion he was released in an improved or recovered condition. A June 1948 letter from Dr. P.C.R. stated that he saw the veteran at St. Jude's Hospital on November 20, 1948, where he was being treated for severe bleeding after extraction of several abscessed teeth, and that he then went to the Veteran's Hospital for treatment of arthritis, which could have been the result of the abscessed teeth. A hospital summary from S1. Jude's Hospital (Dr. P.C.R.), dated in November 1946, shows that the veteran was admitted with post-extraction bleeding after having three molars extracted because of abscesses; that he related that he had been in poor condition for the past year due to his dental condition; that the following morning he began to hemorrhage from the gum, had fever and chills, and was hospitalized. The diagnoses were infected teeth extracted, and post-extraction bleeding. A rating decision of August 1948 granted service connection for rheumatoid arthritis, multiple joints, as secondary to the removal of service-connected infected teeth, and denied service connection for a mild tension state, and for hay fever and rhinitis. The claimant and his representative with notified of that determinations and of his right to appeal by RO letter of August 19, 1948, but did not initiate and appeal of that decision. Thereafter, in March 1949, a report was received from Dr. J.N.D., citing eight office visits with the veteran for his service-connected rheumatoid arthritis, multiple joints, between January and March 1949. The clinical findings included some swelling of the joints and a history of arthritis, while the diagnosis was chronic polyarthritis. - 10 A report of V A orthopedic examination, dated in June 1949, cited the veteran's complaints of painful joints most of the time since his hospitalization approximately one year previously, with episodes lasting for about a week, then subsiding for two or three days before returning. He related that he had been laid up twice for two or three days in the last year, usually involving the ankles, wrists, and low back, but has otherwise been working. He further related that he cannot gain weight; that he has not felt well for the last two or three months; that he experiences pain in his right hip at the limits of passive motion; and that he has been taking gold and vaccine injections from his private physician. Examination disclosed that he was very thin and undernourished, weighing 122 pounds; that he could rise on his toes, squat readily, stand on either leg, flex the thighs to the abdomen, and that motion in all joints was free and complete. The examiner stated that there was no swelling or limitation of motion in the ankles; that no limitation of motion of the back was found; that there was a spindle-shaped swelling of the proximal pharyngeal joints of the fingers of both hands, with a slight enlargement of the carpal area of the left hand which might be rheumatoid in origin; and that the veteran made no complaint with regard to his hands and stated that the joints were no tender to pressure. Xrays of the lungs, heart and left hand and wrist were negative. The diagnosis was rheumatoid arthritis, multiple. A rating decision of August 1949 increased the evaluation for the veteran's service-connected rheumatoid arthritis from a noncompensable rating to 30 percent disabling, effective January 21, 1949; and continued the denial of service connection for a tension state and for hay fever and rhinitis. The claimant and his representative were notified of that determinations and of his right to appeal by RO letter of August 15, 1949, but did not initiate an appeal of those decisions. A VA orthopedic examination, conducted in July 1961, cited the claimant's medical history, including his long history of allergic diathesis in the form of hay fever, asthma, laryngeal edema, and rashes which result from eating certain foods and taking certain medications. The claimant related that his only complaint for the past nine or ten years has been some morning stiffness in his knees, and some vague complaints of stiffness over the coccygeal region after sitting or driving for a long period of time. He asserted that he has controlled his arthritis problem by getting - 11 adequate rest and "taking it easy." Examination revealed that he was in apparent good health, and was well developed and well nourished, weighing 170,pounds, and was in no apparent acute or chronic distress. He moved around well, and was able to remove his trousers with ease, and no orthopedic abnormalities were found at any joint. A full range of motion was identified at all joints, including the cervical spine and the back, there was no evidence of swelling of any of the joints; the hands were of normal configuration. The knee joints were perfectly normal with stable ligaments and a full range of motion from 30 degrees to a full 180 degrees of extensions, with no evidence of fusion of the knee. The diagnoses were history of rheumatoid arthritis (diagnosis previously made); history of arthralgia and hydrops of multiple joints (must rule out the possibility of arthritis secondary to allergic diathesis); and no current evidence of active disease. A rating decision of September 1961 reduced the evaluation of the veteran's service-connected rheumatoid arthritis from a 30 percent evaluation to a noncompensable evaluation, effective November 5, 1961, and continued the denial of service connection for it tension state and for hay fever and rhinitis. The claimant and his representative were notified of that determinations and of his right to appeal by RO letter of September 5, 1961, but did not initiate an appeal of those decisions. In a letter received at the RO in June 1962, the veteran's representative stated that the claimant had been receiving VA outpatient treatment and medication for his service-connected rheumatoid arthritis; and that he requested an increase in the rating evaluation for that disability. VA outpatient treatment records from the V AMC, Fort Snelling, dated from February to March 1962, show that the claimant was seen in the allergy clinic with complaints of multijoint pain, lasting for 20-30 minutes, especially in the coccygeal region after sitting and after he is fatigued, worsening in damp weather, and noted that the VA orthopedic examiner in July 1961 had suggested that his arthralgia might be secondary to allergy. The impression was coccyxodynia, and the claimant was referred for an allergy consultation. A consultation report in February 1962 noted that the claimant's arthritis had been considered rheumatoid in past years; that the claimant related that his hay fever and asthma began at age 12; that - 12 desensitization in 1954 and 1955 brought good relief but severe general reactions, especially throat edema; and that his symptoms had been unchecked since then. The claimant stated that he experienced some perennial symptoms affected by beer, strawberries, celery, pop, coffee, smoking, house, hay, weeds, grass, sawdust, cat dander, spaghetti, eggs, chocolate, and oranges; that such caused either sores or primary symptoms such as hives; that cashews caused hives and pharyngeal edema; that herring in wine caused severe pharyngeal edema and nasal symptoms; and that he is unaware of any relationship between the above symptoms and his arthritic state. The consulting physician stated that the veteran had developed no deformity, which after this length of time suggests some other etiology for arthritis, and noted that the claimant expressed a belief that there was some relationship between dental abscesses and arthritis. The diagnoses were vasomotor rhinitis and asthma, allergic; and allergic stomatis, with allergic factors including food and dust. The examiner stated that it would seen unlikely from the veteran's history that arthritis is allergically related. There was no evidence of joint involvement, although tenderness was noted over the coccyx and on digital examination. A general medicine clinic examination in March 1962 disclosed no evidence of edema, minimal deformity and a very slight limitation of motion of the wrists, with no other evidence of limitation of motion in any joint, and the spine was described as very mobile, with a slight tenderness over the right sacroiliac and about the L2-S 1 and T9-10 vertebrae. The impression was rheumatoid arthritis. A rating decision of June 1962 determined that an allergic etiology for rheumatoid arthritis had not been established by competent medical evidence, and that a compensable rating for service-connected rheumatoid arthritis was not warranted. The claimant and his representative were notified of those determinations and of his right to appeal by RO letter of June 21, 1962, but did not initiate an appeal of those decisions. In May 2001, the claimant requested an increased (compensable) rating for his service-connected rheumatoid arthritis, citing an increase in symptoms. In support of his claim, he submitted a May 2001 letter from St Paul Internists (Dr. H.T.A.) stating that the claimant was seen from 1994 through 1996 by the corresponding physician and by Dr. R.C. for arthritis. - 13 Private treatment records, including a hospital summary and operative report from St. Joseph's Hospital (Dr. J.A.D.), show that the veteran was seen in September 1997 for complaints of inability to walk and right hip and groin symptoms of four or five days' duration. X-rays revealed no acute fracture, and he was admitted for magnetic reasonance imaging (MRI) of the right femoral head, which disclosed avascular changes in the femoral head which appeared to be acute. Physical examination revealed limitation of motion of the right hip, as well as pain on motion and on weight bearing, but the remainder of the examination was benign and he was shown to be otherwise in good health. The impression was acute avascular necrosis of the femoral head, and a total hip replacement was recommended. In September 1997, an operative report disclosed that the claimant underwent a right total hip replacement. That report further noted that the initial incision revealed Grade IV changes of the femoral head, and the necessary preparatory procedures were performed to permit a right high grade total hip arthroplasty utilizing an un cemented right Medical Technology acetabular component and a cementedl femoral component. The diagnosis was avascular necrosis, right hip. Private treatment records from Summit/Landmark Orthopedics, Ltd. (Dr. J.M.B.), dated from October 1997 to February 2001, show that the veteran was followed postoperatively; that he was doing well, with equal leg lengths and no complaints of thigh or hip pain, but with complaints of significant knee pain. X-rays of the right hip joint looked excellent, and the reporting physician stated that he had no further recommendations with respect to the right hip; and that the veteran could ambulate as tolerated without his cane. He recommended injections of steroids for the claimant's right knee complaints. The claimant subsequently complained of right hip pain, with thigh pain on ambulation, and the reporting physician stated that in view of his full range of right hip motion, that he be treated conservatively. The remaining treatment records show that the claimant progressed; that continued ambulation was recommended; that his X-rays continued to look excellent; and that his right knee was injected with steroids. In February 1998, the veteran complained of gonarthrosis, while in March 2000, he complained of left shoulder pain and right knee pain. The reporting physician stated that the claimant had some right medial gonarthrosis and some left shoulder early arthrosis with definite subacromial - 14 bursitis. X-rays of the left shoulder and the right knee showed that the right hip arthroplasty continued to look excellent, while the right knee steroid injection approximately 17 month earlier had produced good results and the claimant indicated that he would like to try another steroid injection on the right. In April 2000, the veteran was seen with complaints of low back pain, while significant degenerative disc disease was noted at L4-L5, and it was indicated that he had some mildly positive straight leg raising with a negative neurological examination in both lower extremities. A Medrol Dosepak was recommended to relieve severe spasm. In October 2000, the claimant was seen after sustaining a fall on his shoulder, and had reasonably good strength, and was able to abduct and flex to 150 degrees, with pain on motion. The impression was minor rotator cuff tear. In February 2001, the claimant reported persistent complaints of shoulder and knee pain, and requested a repeat steroid injection into the left shoulder and right knee. A VA orthopedic examination, conducted in July 2001, cited the claimant's military and medical history, and noted the claimant's statement that he had several episodes of high fever of unknown origin while on active duty, with hospital admissions, but had no joint problems while on active duty. The examiner noted his review of the above cited records of the veteran's recent treatment, and the diagnoses of right medial gonarthrosis and left shoulder arthrosis with definite subacromial bursitis, a minor rotator cuff tear after a fall, and degenerative disease of the L4-L5 vertebrae. The examiner cited a history offered by the veteran of service-connected rheumatoid arthritis involving both shoulders, the right knee, and the lumbosacral area, and it was noted that he was currently status post right total hip arthroplasty, status post minor rotator cuff tear of the left shoulder, and with progressive medial gonarthrosis of the right knee and degenerative joint disease of the lumbar spine. The examiner further reported that the claimant's chief complaints were left shoulder pain and reduction in motion; swelling of the right knee, with stiffness and pain; and pain and stiffness with limitation of motion in the low back. Examination of the left shoulder revealed no tenderness to palpation over the acromioclavicular joints, no tenderness or pain among the upper muscle groups of the left shoulder or left upper extremity, while neurological examination showed 5/5 - 15 muscle strength in all muscle groups of the upper extremity, without discomfort on muscle strength testing. Sensation was normal and reflexes were equal" bilaterally, and within normal limits. Range of motion testing in the left shoulder disclosed forward elevation to 110 degrees, abduction to 120 degrees. adduction to 35 degrees, internal rotation to 65 degrees, and external rotation to 45 degrees, with definite left shoulder discomfort on range of motion testing. Examination of the back showed the spine was straight, with tenderness to palpation along the lower lumbosacral spine at L3-L4, L5-S1 and the corresponding paravertebral muscles. Range of motion testing revealed forward flexion to 70 degrees, extension to 5 degrees, and lateral bending to 25 degrees, bilaterally. The veteran was able to stand on his toes, and reflexes were equal and within normal limits, bilaterally. \ Examination of the knees revealed no redness, but some warmth and swelling in the right knee, and the circumference of the right knee through the middle of the patella was 41 cm. versus 3'8.5 cm. on the left, and there was moderate tenderness to palpation along the lateral aspect of the right knee joint. Range of motion was from 0 to 110 degrees on the right, and from 0 to 125 degrees on the left, and the veteran reported no discomfort in either knee on the fullest possible flexion. The Faber maneuver was subjectively and objectively negative, bilaterally, but the veteran was unable to extend his left leg more than 110 degrees, or his right leg more than 75 degrees. There was no evidence of ligimentous instability, bilaterally, and Lachman's tests were negative, bilaterally, and strength testing of the flexors and extensors of the knees was not associated with any knee pain in either knee. Deep tendon reflexes were 2+ and equal, bilaterally. X-rays of the knees revealed degenerative joint disease, bilaterally, advanced on the right with loss of medial joint space and sclerosis; lateral subluxation of the tibia with loss of joint space and sclerosis; chondrocalcinosis; and patellofemoral spurring. Examination of the left knee showed marked medial joint space narrowing and spurring, and patellofemoral spurring. The impression was advanced degenerative disease, right knee, with chondromalacia, and significant degenerative - 16 disease, left knee, predominantly involving the medial compartment and patellofemoral joint. VA X-rays of the shoulders revealed that the right shoulder had minimal spurring at the acromioclavicular joint, with borderline narrowing of the subacromial space, possibly indicative of rotator cuff damage, and an MRI scan was recommended. The impression was minimal degenerative change of the acromioclavicular joint, and minimal subacromial narrowing, while X-rays of the left shoulder were negative for any abnormalities. X-rays of the lumbosacral spine disclosed degenerative disc disease present from T12 through Sl, with osteophytic spurring, and the disc spaces were well-maintained. Evidence of vascular calcification was seen, as well as evidence of a right hip arthroplasty. In an addendum to his report, the VA orthopedic examiner noted his review of the veteran's claims folder and the current findings on examination and radiographic examination. He noted that a rating examination in July 1949 showed rheumatoid arthritis, and that his revie_ of the veteran's history, the VA examination conducted in July 2001, and the X-rays . taken as part of that examination, revealed degenerative disc disease, T12 through S1, with osteophytic spurring; minimal degenerative change of the acromioclavicular joint of the right shoulder; and that both knees were manifesting mostly age-related advanced degenerative polyarthritis, but not rheumatoid arthritis. The examiner expressed his medical opinion that it is unlikely that the veteran's current joint condition is related to rheumatoid arthritis. He further noted, however, that there was a subacute process in the right knee where a rheumatoid process could not be excluded. A rating decision of February 2002 denied a compensable rating for service-connected rheumatoid arthritis of multiple joints, and denied service connection for degenerative disc disease of the T12-Sl vertebrae, for degenerative changes of the right shoulder joint, and for degenerative changes of the knees, bilateral. The claimant and his representative were notified of those determinations and of his right to appeal by RO letter of February 20,2002. The veteran filed a timely Notice of Disagreement, stating that he felt that his problems were as likely as not to involve his service-connected rheumatoid arthritis. He was issued a Statement of - 17 the Case in March 2003. In his Substantive Appeal (VA Form 9), the claimant declined a hearing before a Veterans Law Judge of the Board of Veterans' Appeals. II. Analysis Service Connection for Degenerative Disc Disease of the T12-S1 Vertebrae, for Degenerative Changes of the Right Shoulder Joint, and for Degenerative Changes of the Knees, Bilateral ' In order to establish service connection for claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service,\was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2003). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when manifested to a compensable degree within the initial post service year. 38 C.F.R. §§ 3.307(a), 3.309(a) (2003). In this case, degenerative disc disease of T12-S1, with degenerative spurring, degenerative disease of the right shoulder, and advanced degenerative joint disease of the knees, bilaterally, were not shown in service, at the time of service separation, or within the initial postservice year. A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1111, 1137 (West 2000). Clear and unmistakable evidence that the disability existed prior to service will rebut this presumption. 38 U.S.C.A. § 1111 (West 2000); 38 C.F.R. § 3.304(b) (2003). No defects were noted on the veteran's service entrance examination, and he must be presumed to have been without defects at the time of service entry. In addition, a claim may be established under the provisions of38 C.F.R. § 3.303(b) (2003) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such a condition. Such evidence must be medical unless it relates to a condition as to - 18 which, under the case law of the United States Court of Appeals for Veterans Claims (Court), lay observation is competent. If the chronicity provision is not applicable, a claim may still be established or reopened on the basis of § 3.303(b) if the condition observed during service or any applicable presumption period still exists, continuity of symptomatology is demonstrated ,thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In determining whether an appellant is entitled to service connection for a disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2000); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I ' A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 U.S.C.A. § 1110, 1131 (West 2000); 38 C.F.R. § 3.31 O(a) (2002); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The United States Court of Appeals for Veterans Claims (the Court) has held, in pertinent part, that the term "disability" as used in 38 U.S.C.A. § 1110 (West 2000) refers to impairment of earning capacity, and that such definition mandates that any additional impairment resulting from an already service-connected condition; regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated (emphasis in original). Thus, pursuant to 38 U.S.C.A. § 1110 (West 2000) and 38 C.F.R. § 3.31 O(a) (2002), when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439,448 (1995). - 19 Evidence of the veteran's current' condition is not generally relevant to the issue of service connection, absent some competent linkage to military service. ,See, e.g., Morton v. Principi, 3 Vet. App. 508, 509 (1992); Mingo v. Derwinski, 2 Vet. App. 51, 53 (1992). The Court has held that a lay person, such as the claimant, is not competent to offer evidence that requires medical knowledge, such as the diagnosis or cause of a disability. See Ramey v. Brown, 9 Vet. App. 40 (1996); Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Holland v. Brown, 6 Vet. App. 443 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492,495 (1992). If such evidence is not competent, it cannot be probative. As causative factors of a disease amount to a medical question; only a physician's opinion would be competent evidence. Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). \A claimant's statements as to nexus are entitled to no probative weight. Layno v. Brown, 6 Vet. App. 465 (1994). The Court has held, however, that a veteran's statements are competent as to the onset and continuity of symptomatology, including pain. Heuer v. 13rown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The evidence of record shows that in May 2001, the claimant requested a , compensable rating for his service-connected rheumatoid arthritis of multiple joints, and that he was afforded a VA orthopedic examination with radiographic studies in July 2001. In December 2001, the RO referred the reports of the July 2001 for assessment and a medical opinion. According to the medical opinion, the physician conducted a longitudinal review of the claims folder. The examiner further stated that review of the claims folder, and the findings on the current VA clinical and radiographic examinations revealed degenerative disc disease of the T12 through Sl intervertebral spaces, with osteophytic spurring; minimal degenerative change of the acromioclavicular joint of the right shoulder; and that both knees were manifesting mostly age-related advanced degenerative polyarthritis, but not rheumatoid arthritis. He expressed the medical opinion that it is unlikely that the veteran's current joint condition is related to rheumatoid arthritis. He further noted, however, that there was a "subacute process in the right knee where a rheumatoid process cannot be excluded." - 20 While the veteran has expressed his opinion that his problems as likely as not involve his service-connected rheumatoid arthritis, the Board notes that it is well settled that a lay person, such as the claimant, is not competent to offer evidence that requires medical knowledge, such as the diagnosis or cause of a disability. See Ramey v. Brown, 9 Vet. App. 40 (1996); Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Hollandv. Brown, 6 Vet. App. 443 (1994); Grottveitv. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492,495 (1992). If such evidence is not competent, it cannot be probative. As causative factors of a disease amount to a medical question; only a physician's opinion would be competent evidence. Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). A claimant's statements as to nexus are entitled to no probative weight. Layno v. Brown, 6 Vet. App. 465 (1994). Based upon the foregoing, and for the reasons and bases stated, the Board find that service connection for degenerative disc disease of the T12-S1 vertebrae, for degenerative changes of the right shoulder joint, and for degenerative changes of the knees, bilateral, is not warranted. To the extent indicated, and only to that' extent, the appeal for service connection for degenerative disc disease of the T12-S1 vertebrae, for degenerative changes of the right shoulder joint, and for degenerative changes of the left and right knees is denied. Entitlement to a Compensable Rating for Service-Connected Rheumatoid Arthritis of Multiple Joints Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2000); 38 C.F.R. §§ 3.321(a), 4.1 (2003). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2003). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely related. 38 C.F.R. Part 4, § 4.20 (2003). - 21 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. Part 4, § 4.7 (2003). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as in the instant appeal, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55,58 (1994). In Esteban v. Brown, 6 Vet: App. 25'9, 262 (1994), it was held that service connection for distinct disabilities resulting from the same injury could be established so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R.§ 4.14; Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Disability of the musculoskeletal system is primarily the inability, due to drainage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements: The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. Part 4, § 4.40 (2003). For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvement of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical - 22 .vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45 (2003). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearlng and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2003). The Court has held that the Board must determine whether there is evidence of ' weakened movement, excess fatigability, incoordination, or functional loss due to pain on use or flare-ups when the joint in question is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The appellant's service-connected rheumatoid arthritis is evaluated under 38 C_F.R. Part 4, § 4.71a, Diagnostic Code 5002 (2003), which provides that arthritis rheumatoid (atrophic) will be rated as 100 percent disabling when manifested as an active process with constitutional manifestations associated with active joint involvement, and totally incapacitating; as 60 percent disabling when manifested by less than the criteria for 100% but with weight loss and anemia, and productive severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods; as 40 percent disabling when manifested by symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year; as 20 percent - 23 disabling when manifested by one or two exacerbations a year in a well-established diagnosis. Chronic residuals of rheumatoid arthritis such as limitation of motion or ankylosis, favorable or unfavorable, will be rated under the appropriate diagnostic codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic Code 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Note: The ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis. Assign the higher evaluation. \ The Board has considered the possibility of assigning separate disability ratings under Diagnostic Codes 5257 and 5003 pursuant to VAOPGCPREC 23-97. In essence, VAOPGCPREC 23-97 states that DC 5257 provides for evaluation of instability of the knee without reference to limitation of motion. The terms of Code 5003, on the other hand, refer not to instability but to limitation of motion. Since the plain terms of Code 5257 and 5003 suggest that those Codes apply, either to different disabilities or to different manifestations of the same disability, the evaluation of knee dysfunction under both Codes would not amount to pyramiding under section § 4.14. However, VAOPGCPREC 23-97 makes it clear that in order for separate disability ratings to be assigned under Diagnostic Codes 5257 and 5003, both instability and limitation of motion must be present. In this case, as discussed above, no ligamental instability has been identified limitation of motion has ever been identified, including on the mist recent VA examination. Accordingly, under the terms of V AOPGCPREC 23-97, separate disability ratings may not be assigned. In this case, while there is evidence of limitation of right knee motion arguably due to rheumatic arthritis, there was no separate and distinct ligament laxity identified in the veteran's right knee on examination in July 2001. - 24 The record shows that a July 1961 VA orthopedic examination cited the claimant's statement that his only complaint for the past nine or ten years has been some morning stiffness in his knees, and some vague complaints of stiffness over the coccygeal region after sitting or driving for a long period of time. He asserted that' he has controlled his arthritis problem by getting adequate rest and "taking it easy." Examination revealed that he was in apparent good health, and was well developed and well nourished, weighing 170 pounds, and was in no apparent acute or chronic distress. He moved around well, and was able to remove his trousers with ease, and no orthopedic abnormalities were found at any joint. A full range of motion was identified at all joints, including the cervical spine and the back, there was no evidence of swelling of any of the joints; and the hands were of normal configuration. The knee joints were perfectly normal with stable ligaments and a full range of motion from 30 degrees to a full 180 degrees of extension, with no evidence of fusion of the knee. The diagnoses were history of rheumatoid arthritis (diagnosis previously made); history of arthralgia and hydrops of multiple joints . (rule out the possibility of arthritis secondary to allergic diathesis); and no current evidence of active disease. In addition, VA outpatient treatment records from the V AMC, Fort Snelling, dated from February to March 1962, show that the claimant was seen in the allergy clinic with complaints of multijoint pain, lasting for 20-30 minutes, especially in the coccygeal region after sitting and after he is fatigued, worsening in damp weather, and noted that the VA orthopedic examiner in July 1961 had suggested that his arthralgia might be secondary to allergy. The impression was coccyxodynia; not rheumatic arthritis, and the claimant was referred for an allergy consultation. He reported numerous items which produced allergic reactions and pharyngeal edema, and stated that he is unaware of any relationship between the above symptoms and his arthritic state. The consulting physician stated that the veteran had developed no deformity, which after this length of time suggests some other etiology for arthritis. The examiner stated that it would seen unlikely from the veteran's history that arthritis is allergically related. There was no evidence of joint involvement, although tenderness was noted over the coccyx and on digital examination. The diagnoses were vasomotor rhinitis and asthma, allergic; and allergic stomatis, with - 25 allergic factors including food and dust. I A private general medicine clinic evaluation in March 1962 disclosed no evidence of edema, minimal deformity and a very slight limitation of motion of the wrists, with no other evidence of limitation of motion in any joint, and the spine was described as very mobile, with a slight tenderness over the right sacroiliac and about the L2-S 1 and T9-l 0 vertebrae. The impression was rheumatoid arthritis. No competent medical evidence showing objective clinical findings of rheumatoid arthritis as an active process with constitutional manifestations associated with active joint involvement, or with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods, or with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year, or manifested by one or two exacerbations a year in a well-established diagnosis, have been clinically demonstrated or diagnosed between the July 1961 VA orthopedic examination and the receipt of the veteran's May 2001 claim for an, increased (compensable) evaluation for his service-connected rheumatic arthritis. In May 2001, the claimant sought a compensable rating for his service-connected rheumatoid arthritis, submitting private medical records in support of his claim. However, those medical records showed that in September 1997, the appellant was found to have an acute avascular necrosis of the femoral head of the right hip joint, which the treating physician did not relate to rheumatoid arthritis, and the veteran underwent a right high grade total hip arthroplasty utilizing an uncemented right Medical Technology acetabular component and a cemented femoral component. The postoperative treatment records reflect the attending surgeons' opinion that his right hip arthroplasty remained in excellent condition, postoperatively, and that he had a good range of right hip motion and was ambulatory. His treatment subsequently involved right gonarthrosis of the right knee and left shoulder, and his right knee was shown to be responsive to a steroid injection in February 1998. The claimant was subsequently shown to have some early arthrosis with definite subacromial bursitis of the left shoulder joint, neither of which was associated with his service"'-connected rheumatic arthritis, and in October 2000, he was reported to - 26 have fallen, sustaining an intercurrent minor rotator cuff tear in his left shoulder. Those records also included a May 2001 letter from St. Paul Internists (Dr. H.T.A) stating that he and his associate, Dr. R.C., had treated the veteran for arthritis from 1994 to 1996, although rheumatic arthritis was not identified in the claimant. A VA orthopedic examination, conducted in July 2001, cited the claimant's military and medical history, and noted the claimant's statement that he had several episodes of high fever of unknown origin while on active duty, with hospital admissions, but had no joint problems while on active duty. The examiner noted his review of the above cited records of the veteran's recent treatment, and the diagnoses of right medial gonarthrosis and left shoulder arthrosis with definite subacromial bursitis, a minor rotator cuff tear after a fall, and degenerative disease of the L4-L5 vertebrae. That VA orthopedic examination disclosed that the veteran's service-connected rheumatoid arthritis of multiple joints is currently manifested by persistent pain, stiffness, warmth, and swelling in the right knee, with moderate tenderness to . palpation, evidence of weakened movement, limitation of range of right knee motion from 0 degrees (full extension) to 75 degrees of flexion, excess fatigability, incoordination, or functional loss due to pain on use or flare-ups when the joint in question is used repeatedly over a period of time, but without competent medical evidence showing objective clinical findings of rheumatoid arthritis as an active process with constitutional manifestations associated with active joint involvement, or with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods, or with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year, or manifested by one or two exacerbations a year in a well-established diagnosis. The examination further disclosed no ligamental instability, Lachnan's sign was negative, strength testing of the flexors and extensors were not associated with pain, and deep tendon reflexes were 2+ and equal, bilaterally. - 27 In evaluating the veteran's right knee joint, the only joint shown to be currently affected by rheumatoid arthritis on the recent examination, the Board finds that there is no evidence or demonstration of ankylosis (Diagnostic Code 5356); no evidence of recurrent subluxation ,or lateral instability (DC 5257); no evidence of a dislocated semilunar cartilage, with episodes of locking, pain, or effusion into the joint (DC 5258); no symptomatic residuals of removal of a semilunar cartilage (DC 5259); no limitation of flexion to less that 60 degrees (DC 5260); no limitation of extension (DC 5261); no impairment of the tibia or fibula due to nonunion or malunion (DC 5262); and no evidence of acquired, tramatic genu recurvatum. That examination report disclosed no objective clinical findings of rheumatoid arthritis as an active process with cons1:itutional manifestations associated with active joint involvement, or with weight loss and anemia productive of severe impairment of health or 'severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods, or with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year, or manifested by one or two exacerbations a year in a well-established diagnosis. In addition, the VA orthopedic examiner noted that his review of the veteran's history, the VA examination conducted in July 2001, and the X-rays taken as part of that examination, revealed degenerative disc disease, T12 through S1, with osteophytic spurring; minimal degenerative change of the acromioclavicular joint of the right shoulder; and that both knees were manifesting mostly age-related advanced degenerative polyarthritis, but not rheumatoid arthritis. He expressed the medical opinion that it is unlikely that the veteran's current joint condition is related to rheumatoid arthritis. He further noted, however, that there was a subacute process in the right knee where a rheumatoid process could not be excluded. The Board notes that the VA orthopedic examiner distinguished between rheumatoid arthritis and degenerative arthritis in his review of the medical record and the current clinical and radiographic findings, stating that the X-ray studies indicated degenerative disc, T12 through S 1, with osteophytic spurring; minimal degenerative change of the acromioclavicular joint of the right shoulder; and that - 28 both knees were manifesting mostly age-related advanced degenerative polyarthritis, "but not rheumatoid arthritis." He further expressed the medical opinion that it is unlikely that the veteran's current joint condition is related to rheumatoid arthritis, while noting that there was a subacute process in the right knee "where a rheumatoid process cannot be excluded." Based upon such findings and opinion, the Board finds that in the absence of evidence of a compensable limitation of right knee, motion, a 10 percent evaluation is warranted for service-connected rheumatic arthritis of multiple joints based upon X-ray findings of a subacute rheumatoid process in the right knee. With respect to the DeLuca criteria, cf DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995), involving evidence of weakened movement, excess fatigability, incoordination, or functional. loss due to pain on use or flare-ups when the joint in question is used repeatedly over a period of time, the examiner noted that the findings in the veteran's right knee indicated weakened movement, excess fatigability, incoordination, and functional loss due to pain. The Board is of the opinion that the veteran's service-connected rheumatic arthritis of multiple joints warrants an additional 10 percent evaluation based upon evidence of weakened . movement_ excess fatigability, incoordination, or functional loss due to pain on use or flare-ups Based upon the foregoing, and for the reasons and bases stated, the Board finds that an increased rating of 20 percent for service-connected rheumatoid arthritis is warranted. To the extent indicated, the claim for a compensable rating for service connected rheumatoid arthritis is granted. In reaching its decisions, the Board has considered the doctrine of reasonable doubt, and where the evidence was in equipoise, or evenly balanced, doubt has been resolved in the appellant's favor. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). - 29 ORDER The veteran's service connected rheumatoid arthritis of multiple joints warrants an increased rating of 20 percent. Service connection for rheumatoid arthritis of the T12-S1 vertebrae, for rheumatoid arthritis of the right shoulder joint, and for rheumatoid arthritic changes of the left knee is denied. . G. H. Shufelt Veterans Law Judge, Board of Veterans' Appeals - 30 511768385 031212 1268766 03-34973 DOCKET NO. 99-21 816 DATE DEC 12 2003 On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES Entitlement to a rating in excess of 10 percent for service-connected residuals of a ' scar of the left foot, status post bunionectomy and arthroplasty. Entitlement to an increased (compensable) rating for service-connected residuals of a scar of the left breast, status post left breast biopsy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The claimant served on active duty with the United States Army from May 1988 to October 1988, including service from December 27, 1990, to April 24, 1991, in the Southwest, Asia theater of operations during Operation Desert Shield/Desert Storm: The record shows that the RO has received notification that the claimant has returned to active duty. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of June 1999 from the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. That decision granted service connection for postoperative scars of the left foot, status post bunionectomy and arthroplasty, and for a residual scar of the left breast, status post left breast biopsy, each evaluated as noncompensably disabling. The claimant appealed those determinations, seeking increased (compensable) ratings for both those disabilities. This case was also previously before the Board on February 6, 2001, and was Remanded for additional development of the record, to include obtaining additional medical records from any private or VA health care providers identified by the claimant, and for a VA examination by a qualified examiner who had reviewed the claims folder to determine the current extent of the claimant's scars of the right foot and left breast. In addition; the RO was directed to comply with all notice and duty to assist requirements of the Veterans Claims, Assistance Act of2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) [codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2000)]. That development has been completed, and those issues are addressed in the Remand portion of this order. While the claim was thus in Remand status, a rating decision of March 2003 granted an increased initial rating of 10 percent for the claimant's service-connected postoperative scars of the left foot, status post bunionectomy and arthroplasty, and confirmed and continued the noncompensable rating for a service-connected residual scar of the left breast, status post left breast biopsy. Applicable law mandates that when a veteran seeks an original or increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and - 2 it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The veteran has not withdrawn her appeal as to the issue of an increased rating for her serviceconnected postoperative scars of the left foot, status post bunionectomy and arthroplasty, and that claim remains before the Board for review. REMAND Although the record indicates the veteran has returned to active service, the .claims folder does not include documentation of this service. In addition, no attempt has been made to determine if a report of an examination for service is available. The appellant is hereby notified that she has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ' The case must be Remanded to the RO for the following actions: 1. The RO must determine if'the appellant has returned to active service, and, if she has, obtain documentation of such service. , 2. If the appellant has returned to active service, the RO must attempt to obtain a copy of the report of any examination that was performed when the appellant was accepted for return to active service. 2. The RO must ensure that all provisions of the Veterans Claims Assistance Act are properly applied in the development of the claims. 3. The RO must ensure that all provisions of the Veterans Claims Assistance Act are properly applied in the development of the claim. - 3 4. Upon the expiration of that period, the RO should readjudicate those claims under both the old and the newly revised criteria for evaluating scars, in light of any additional evidence submitted. If the benefits sought on appeal remain denied, the appellant should be provided a Supplemental Statement of the Case. That Supplemental Statement of the Case must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal, as well as the former and newly revised provisions of VA's Schedule for Rating Disabilities pertaining to the evaluation of scars. An appropriate period of time should be allowed for response. The Court has held that a remand by, the Court or the Board confers on the appellant I or other claimant, as a matter of law, the right to compliance with the remand "orders. Further, the Court stated that where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). All cases returned to the Board which do not comply with the instructions of the Board remand will be returned to the RO for further appropriate action as directed. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs - 4 to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02. G. H. Shufelt Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) _2003). - 5 029529726 031121 1298028 03-32694 DOCKET NO. 99-23 002 DATE NOV 21 2003 On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to compensation for conjunctivitis of the left eye socket under the provision of section 1151, title 38, United States Code. 2. Entitlement to compensation for cause or aggravation of left shoulder disability under the provision of section 1151, title 38, United States Code. 3. Entitlement to compensation for chronic headaches under the provision of section 1151, title 38, United States Code. 4. Entitlement to service connection for post-traumatic stress disorder (PTSD). 5. Entitlement to special monthly compensation (SMC) for aid and attendance. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The appellant had active service from May 1943 to July 1946. This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 1999 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO), which denied claims of entitlement to compensation for conjunctivitis of the left eye socket, and a left shoulder disability, and headaches, with all claims under the provision of section 1151, title 38, United States Code. The RO also denied a claim of entitlement to service connection for PTSD, as well as a claim for SMC for aid and attendance. In February 2001, the Board remanded the claims for additional development. REMAND A review of the record reflects that it appears that the veteran was granted disability benefits by the Social Security Administration (SSA). The claims files do not currently contain the records from the SSA. On remand, these records should be obtained. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The veteran argues that he has PTSD as a result of his service in the South Pacific during World War II. In October 1998, the RO requested details of the claimed stressors. In a stressor statements, received in October 1998 and May 2001, as well -2 as in VA examination reports, dated in November 1998 and November 2002, he claimed the following: 1) participation in combat on Guadalcanal, the Marshall Islands, Marianas and Bougainville and the Solomon Islands; 2) being wounded in the eye and lip while on Guadalcanal during an air attack; 3) being captured by a Japanese soldier for five hours on Guadalcanal; and 4) witnessing two air attacks aboard ship, during one of which two fellow servicemen were killed. The veteran's service records indicate that he was a seaman. Service records do not show that the veteran has received awards or decorations which establish combat service, or that he was a prisoner of war. Service records indicate that, beginning in late 1942, the veteran served aboard the U.S.S. Chandeleur. In April 1943, he was transferred to Patrol Aircraft Service Unit One - One (PATSU 1/1). In August 1944, he was transferred to Carrier Aircraft Service Unit Nine (CASU 9). In September 1944, he was transferred to a duty station within the Continental United States, and it appears that all subsequent duty stations were in the Continental United States. Absent confirmatory evidence of participation in combat, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressors. See Cohen v. Brown, 10 Vet. App. 138-150 (1997); West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Accordingly, additional development is required, as directed below. A determination has been made that additional development is necessary in the current appeal. Accordingly, further appellate consideration will be deferred and this case is REMANDED to the RO for the following actions: 1. After obtaining any necessary authorizations, an attempt should be made to obtain the veteran's SSA records, and to associate them with the claims files. 2. The RO should prepare a letter asking the U.S. Armed Services Center for Research of Unit Records - 3 (USASCRUR) to provide any available information which might corroborate the veteran's alleged in-service stressors. The RO should provide USASCRUR with a description of these alleged stressors identified by the veteran: 1) serving in combat on Guadalcanal, the Marshall Islands, Marianas and Bougainville and the Solomon Islands; 2) being wounded in the eye and lip while on Guadalcanal during an air attack; 3) being captured by a Japanese soldier for five hours on Guadalcanal; and 4) witnessing two air attacks, during one of which two fellow servicemen were killed, with all stressors to have occurred during service aboard the U.S.S. Chandeleur, and/or as part of PATSU 1/1, and/or as part of CASU 9. The RO should provide USASCRUR with copies of the veteran's personnel records showing service dates, duties, and units of assignment. 3. If, and only if, it is determined that the veteran participated in combat, or that one or more verified stressors exist, make arrangements with the appropriate VA medical facility for the veteran to be afforded an examination in order to ascertain the nature of all psychiatric disability present and the proper diagnoses thereof, specifically to include post-traumatic stress disorder. Appropriate psychological testing should be accomplished. If PTSD is diagnosed, the examiner must specify for the record the stressor(s) relied upon to support the diagnosis. The report of examination should include the complete rationale for all opinions expressed. The claims files must be made available to the examiner for review. -4 4. The RO must review the claims files and ensure that any other notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act are fully complied with and satisfied. See 38 U.S.C. §§ 5102,5103, 5103A, and 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2003). The RO should also ensure compliance with VA's obligations under the VCAA as interpreted by Quartuccio v. Principi, 16 Vet. App. 183 (2002) and Paralyzed Veterans of America v. Sec y of Veterans Affairs, Nos. 02-7007, -7008, -7009, -7010 (Fed. Cir. September 22, 2003). 5. The RO should then readjudicate the issues on appeal. If any of the determinations remain unfavorable to the appellant, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered. The appellant should be given an opportunity to respond to the SSOC. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' - 5 Benefits Improvements Act of 1994, Pub. L. No. 103;-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02. C. P. RUSSELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003). - 6 546628456 031205 918565 03-33946 DOCKET NO. 99-22 477 DATE DEC 05 2003 On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) jn Oakland, California THE ISSUE Entitlement to a total rating based on individual unemployability due to serviceconnected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The veteran served on active duty from January 1966 to December 1968, and from June 1971 to March 1979. This appeal to the Board of Veterans' Appeals (Board) originates from a June 2002 rating decision that denied the veteran's claim for a total disability rating based on individual unemployability (TDIU). The appe]]ant was notified of this decision in July 2002. She submitted a notice of disagreement with the decision in August 2002, and a statement of the case was issued in January 2003. The appellant perfected her appeal to the Board with the filing of a substantive appeal (VA Form 9) in March 2003. In May 2003, the veteran testified during a hearing RO before the undersigned Veterans Law Judge at the RO; a transcript of her testimony is of record. During the hearing, the veteran submitted additional evidence over which she waived RO jurisdiction. See 38 C.F.R. § 20.800 (2003). In a May 2003 statement, the veteran's representative indicated her desire to withdraw from appellate consideration the following issues, for which an appeal previously had been perfected, that had been adjudicated in October 1992 and December] 994 rating decisions: a rating higher than] 0 percent for chronic obstructive pulmonary disease, service connection for endometriosis, service connection for a total abdominal hysterectomy with bi]atera] salpingo-oophorectomy, a compensable evaluation for salpingitis with dysmenorrhea, a rating higher than 60 percent for chronic gastrointestinal disorder, and service connection for bilateral hearing loss. During the May 2003 Board hearing, the veteran verified her desire to withdraw these issues from appellate consideration. According]y, these issues will not be further addressed. See 38 C.F.R. § 20.204 (2003). - 2 REMAND The veteran asserts that she is totally disabled and unable to retain or maintain any gainful employment due to her multiple service-connected disabilities, primarily her gastrointestinal and headache disorders. She further asserts that her current employment as owner of a courier business constitutes marginal employment, in part, because she can only work part time (approximately 8 hours a week) due to these disabilities. A review of the claims file reveals that, at present, the record does not contain sufficient medical evidence to adjudicate this claim. The veteran has a number of service-connected disabilities, as well as a number of nonservice-connected disabilities (to include diabetes mellitus, Type II; hypothyroidism; and a possible psychiatric disability). However, the record includes no medical opinion that specifical1y addresses whether the veteran's various service-connected disabilities, either alone or in concert, and notwithstanding the impact of her nonserviceconnected disabilities, render her unemployable. The Board notes that VA cannot offer its own opinion regarding whether a veteran is unemployable as a result of a service connected disability; rather, VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service connected disability(ies) has on his ( or her) ability to work. See Fricsia v. Brown, 7 Vet. App 294,297 (1994) citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Therefore, further development, by way of a VA examination to obtain the necessary medical opinion, is warranted. See 38 U.S.C.A. § 5103A(d). The veteran is hereby notified that failure to report to any such examination, without good cause, will result in a denial of the claim. See 38 C.F.R. § 3.655(b) (2003). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. ld. If the veteran fails to report to the scheduled examination, the RO should obtain and associate with the record copies of any notice( s) of the date and time of the examination sent to the veteran by the pertinent V A medical facility. - 3 Prior to arranging for the veteran to undergo further examination, the RO shouM obtain and associate with the record al1 outstanding pertinent medical records. In this regard, the Board notes that, in May 2003, the veteran testified that her VA doctors told her that they had noted in her records that she was unable to work due to her service-connected disabilities, but that she herself has not seen these records. The Board likewise has not seen such notations in the medical evidence of record. Hence, the RO must obtain and associate with the claims file all outstanding V A medical records. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of ether those records are physical1y on file. See Dunn v. West, 11 Vet. App. 462, 46667 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board points out that the veteran testified that she received an of her medical treatment from a VA medical facility in Sacramento, California. The claims file currently contains treatment records from that facility dated through March 2002. Accordingly, the RO should request al1 outstanding VA medical records from March 2002 to the present. The RO should also give the veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal. In this regard, the Board points out that, in an April 2003 letter, the RO requested that the veteran provide further information and/or evidence to support her claim for a TDIU within 30 days of the date of the letter, consistent with the provisions of 38 C.F.R. § 3.159(b)(1) (2003). The RO noted that it would proceed with the veteran's claim after 30 days. However, in a decision promulgated on September 22,2003, Paralyzed Veterans of America (PVA) v. Secretary af Veterans Affairs (Secretary), No. 02-7007, -7008, 7009, -7010 (Fed. Cir. Sept. 22, 2003), the United States Court of Appeals for the Federal Circuit invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C. § 5103(b)(1). The Court found that the 30-day period provided in 38 C.F .R. § 3.159(b)(1) to respond to a duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, - 4 114 Stat. 2096 (2000), is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. Therefore, since this case is being remanded for additional development, the RO must take this opportunity to give the veteran another opportunity to provide information and/or evidence, informing her that a fu1l year is allowed to submit the additional information and/or evidence requested. The actions identified herein are consistent with the duties imposed by the VCAA. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure that the Act has fully been complied with. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the Act prior to adjudicating the claim on appeal. For the sake of efficiency, adjudication of the claim should include consideration of the evidence submitted during the May 2003 Board hearing, notwithstanding the veteran's waiver of RO jurisdic60n over that evidence. Moreover, the Supplemental Statement of the Case (SSOC) that explains the bases for the RO's determinations should include citation to pertinent legaJ authority implementing the VCAA-i.e., 38 C.F.R. §§ 3. 102 and 3.159 (2003)-not cited to in the January 2003 statement of the case. Accordingly, this matter is hereby REMANDED to the RO for the following actions: 1. The RO should obtain a1l of the veteran's outstanding treatment records from the VA medical facility in Sacramento, California, to specifically include all treatment records dated from March 2002 to the present. The RO must follow the procedures prescribed in 38 C.F.R. § 3.159(c) regarding obtaining medical records from Federal faci1ities. 2. . The RO should send to the veteran a letter requesting that she provide sufficient information, and, - 5 if necessary, authorization to enable it to obtain any additional pertinent evidence not currently of record. The RO should also invite the veteran to submit any pertinent evidence in her possession, and explain the type of evidence that is her ultimate responsibility to submit. The RO's letter should clearly explain to the veteran that she has a full one-year period to respond. 3. If the veteran responds, the RO should assist him in obtaining any identified evidence by fonowing the procedures set forth in 38 C.F.R. § 3.159 (2003). If any records sought are not obtained, the RO should notify him and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After associating with the claims file an available records received pursuant to the above-requested development, the RO should arrange for the veteran to undergo an appropriate examination to obtain a medical opinion as to her unemployability. The RO is hereby advised of the veteran's preference to be examined at the VA medical facility in Sacramento, California. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the veteran, and the report of the examination should include discussion of the veteran's documented medical history and assertions. The examiner should accomplish all appropriate tests and studies, and report all clinical findings in detail. - 6 The examiner should render an opinion_ consistent with sound medical principles, as to whether should render an opinion as to whether it is at least as like(v as not (i.e., there is at least a 50 percent probability) that the veteran's service-connected disabilities (a chronic gastrointestinal disorder, chronic headaches, chronic sinusitis, chronic obstructive pulmonary disease, tinnitus, hypothyroidism, salpingitis with dysmenorrhea and nicotine dependence), either individually or in concert, render the veteran unable to obtain or retain substantially gainful employment. The examiner should render the requested opinion notwithstanding the effect(s) of any nonservice-connected disability(ies) (to include diabetes mellitus, Type II; hypothyroidism; and a possible psychiatric disability). If the examiner concludes that the veteran's service-connected disabilities render her unemployable, he/she should provide the approximate date that the veteran became unable to work. The examiner should also set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report 5. If the appellant fails to report to the scheduled examination, the RO must obtain and associate with the record copies of any notice(s) of the date and time of the examination sent to the veteran by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested development has been completed (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient - 7 manner, appropriate corrective action should be undertaken. See Stegall v. West, I I Vet. App. 268 (1998). 7. The RO must also review the claims file to ensure that any additional notification and development required by the Veterans Claims Assistance Act of 2000, all controlling case law, and other pertinent legal authority, has been accomplished. 8. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for a TDIU, in light of all pertinent evidence (to include evidence submitted during the May 2003 Board hearing) and legal authority. If the appellant fails to report for the scheduled examination, the RO should apply the provisions of 38 C.F.R. § 3.655, as appropriate. Otherwise, the RO should specifically document its full consideration of whether the veteran has "marginal employment" pursuant to 38 C.F.R. § 4.16. 9. If the benefit sought on appeal remains denied, the RO must issue to the veteran and her representative an appropriate supplemental statement of the case (to include citation to 38 C.F.R. §§ 3.102 and 3.159 (2003), and full reasons and bases for the RO's determinations) and afford them the appropriate opportunity to respond before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND :is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but she may furnish additional - 8 evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of an cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02. JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.CA. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.P.R. § 20.1100(b) (2003). - 9 029661074 040114 1163921 04-01382 DOCKET NO. 02-20 193 DATE JAN 14 2004 On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE 1. Entitlement to an original disability rating greater than 20 percent for chronic low back strain with history of pyriformis syndrome and radiculopathy, L4-L5, prior to February 19, 1985. 2. Entitlement to an original disability rating greater than 40 percent for chronic low back strain with history of pyriformis syndrome and radiculopathy, L4-L5, prior to April 21, 1986. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. P. Tierney, Counsel INTRODUCTION The veteran served on active duty from October 1973 to January 1983. This appeal arises from an adverse decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana, dated in June 1983, that granted the veteran's claim of entitlement to service connection for back pain. The decision assigned a 20 percent disability rating for chronic low back pain due to pyriformis syndrome, effective the date of her exit from service. The decision also established service connection for several other disabilities, all rated noncompensably, and denied entitlement to a total disability rating based on individual unemployability (TDIU). The veteran filed a notice of disagreement in August 1983. She noted disagreement with the findings and rating stated in the RO's notice letter of July 1983. She specifically mentioned the denial of entitlement to TDIU. In August 1983, the RO provided the veteran with a Statement of the Case (SOC) solely addressing the issue of TDIU. In September 1983, the veteran submitted a Form 9, Appeal to Board of Veterans Appeals, in which she noted the issue was not stated on the SOC as she had stated it on her NOD letter. She noted that she should be receiving TDIU from January 1983 to July 1983, and at least 50 percent thereafter. In January 1984, the veteran submitted a statement withdrawing her claim for individual unemployability. She also requested to reopen her claim for increased disability and to appeal the issue of the disability evaluation only awarding her 20 percent. No statement of the case was provided to the veteran addressing the issue of entitlement to an increased rating until December 2002, following a review of the veteran's claims folder by the veteran's accredited representative. The Board notes that the disability rating assigned the veteran's lumbosacral spine disorder was increased to 40 percent, effective February 19, 1985, in a rating decision dated in April 1985. It was subsequently increased to 60 percent, effective April 21, 1986, in a rating decision November 1986. The United States Court of - 2 Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that where a veteran has filed a notice of disagreement as to the assignment of a disability evaluation, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Although entitlement to TDIU is included in an appeal for an increased rating where there is a claim or evidence of potential unemployability, because the issue of entitlement to TDIU had been withdrawn, as of April 1986, the veteran was awarded the maximum available benefit for her service-connected disability. Thus, the issues remaining in appellate status, despite the non-issuance of a SOC for many years, are limited to those noted as issues on the caption of this decision. In May 1987 the veteran filed a claim for entitlement to a TDIU rating. This claim was denied in an unappealed rating decision dated in September 1987. In January 2003, the RO found no evidence of clear and unmistakable error in the September 1987 rating decision denying entitlement to TDIU. The veteran submitted a NOD in January 2003, but the RO has not yet provided the veteran with a SOC. The issue of clear and unmistakable error in the September 1987 decision is addressed in the Remand portion of this decision. FINDINGS OF FACT 1. The RO has provided all required notice and obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. During the period prior to February 19,1985, the evidence showed the veteran's lumbosacral spine disability was manifested by severe recurring attacks consisting of limitation of motion, pain on motion, and muscle spasm, compatible with sciatic neuropathy with intermittent relief. 3. During the period prior to April 21, 1986, the evidence showed the veteran's lumbosacral spine disability was not manifested by pronounced intervertebral disc syndrome, because the treatment records show more than "little intermittent relief'. - 3 Although not required to, the Board finds that VA has complied with the provisions of the VCAA. The Board notes that the RO referred to the explicit provisions of the VCAA when it adjudicated the case below. The RO advised the veteran of the specific evidence necessary to substantiate her claim in a October 2002 letter which requested that the veteran furnish all records of all treatment that she received for her low back problems from the date of her separation from service through April 1986. They noted that she could complete and return VA Form 21-4142 to authorize the VA to request the records for her. Additionally, they requested clarification as to whether the treatment identified by the veteran during her February 1985 VA examination occurred during or after her period of service. She was also requested to clarify the dates of treatment at to service hospitals so that those records could be added to the claims folder. The veteran has failed to reply or supply any further information. With regard to the criteria to be met for entitlement to the benefits sought by the veteran, she was informed most recently of all relevant criteria in the December 2002 SOC. The Board notes that the VCAA made no change in the statutory or regulatory criteria that govern disability ratings. In addition, the SOC provided the veteran with the regulations that allocate responsibility for evidentiary development between the veteran and VA. As such, the veteran was kept apprised of what she must show to prevail in the claim, what information and evidence she is responsible for, and what evidence VA would secure. Therefore, there is no further duty to notify. See generally Quartuccio v. Principi, 16 Vet. App. 183 (2002). Consequently, the Board finds that, in the circumstances of this case, any additional development or notification would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in 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 claimant); 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 claimant are to be avoided); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (when there is extensive factual development in a case, reflected both in - 5 the record on appeal and the Board's decision, which indicates no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, this Court has concluded that the VCAA does not apply); Valiao v. Principi, 17 Vet. App. 229 (2003)(facts averred by claimant cannot conceivably result in grant of benefits the case should not be remanded for development that could not possibly change outcome of decision). Thus, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled, to include the revised regulatory provisions 38 C.F.R. § 3.159. No additional assistance or notification to the veteran is required based on the facts of the instant case. Law and Regulation Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2003). The average impairment as set forth in VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disabilities specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. Jd. If an unlisted condition is encountered it is rated under a closely related disease or injury in which the functions affected, the anatomical localization, and the symptomatology are closely analogous. 38 C.F.R. § 4.20 (2003). The determination of whether an increased evaluation is warranted is to be based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F .R. § 4.1, which requires that each disability be viewed in relation to its history. The appeal being from the initial rating assigned upon awarding service connection, the entire body of evidence is for equal consideration. Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the ratings may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); cf Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where an increased rating is at issue, the present level of the disability is the primary concern). - 6 The record before the Board contains service medical records and post-service medical records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). In determining a rating for a disability, the Board may only consider those factors that are included in the rating criteria provided by regulations for rating that disability. To do otherwise would be legal error as a matter oflaw. Massey v. Brown, 7 Vet. App. 204,208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). As a result, the Board will only address medical records insofar as they pertain to the relevant rating criteria. Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. ld. Rating Criteria During the period under appellate consideration, January 1983 to April 1986, the f01l0wing rating criteria applied to the veteran's lumbosacral spine disability. Diagnostic Code (DC) 5295 allowed for a 40 percent evaluation when there was evidence of severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes or narrowing or irregularity of the joint spaces, or some of the above with abnormal mobility on forced motion. A 20 percent evaluation was assigned when there was evidence of lumbosacral strain with muscle spasm on extreme forward bending and/or loss of lateral spine motion. 38 C.F.R. § 4.71a DC 5295 (2002). Under DC 5293, a 20 percent rating was warranted for moderate intervertebral disc syndrome with recurring attacks. A 40 percent rating is warranted for severe recurring attacks with intermittent relief. A 60 percent rating is warranted when the - 7 intervertebral disc syndrome is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. 38 C.F.R. §4.71a, DC 5293 (2002). Slight limitation of motion of the lumbar spine warrants a 10 percent evaluation. A 20 percent evaluation requires moderate limitation of motion. Severe limitation of motion of the lumbar spine warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5292 (2002). In this case, the Board notes that VA amended the rating criteria for spinal disorders on several occasions during the pendency of the veteran's appeal, with two being relevant to the rating codes under consideration. See 67 Fed. Reg. 54345, 54349 (Aug. 22,2002) and 68 Fed. Reg. 51454 (Aug. 27, 2003) (codified at 38 C.F.R. 4.71a) (amending the criteria for lumbosacral strain, degenerative disc disease, and limitation of motion of the spine effective September 23,2002 and September 26, 2003). When a law or regulation changes after the claim has been filed or reopened and before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet App 312-13 (1991). When amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded. 38 U.S.C.A. § 5110(g); DeSousa v. Gober, 10 Vet. App. 461,467 (1997); VAOPGCPREC 3-2000. Therefore, prior to each respective effective date, the Board may apply only the previous version of the rating criteria. The provisions of these new criteria are therefore not applicable to the present appeal. In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful - 8 motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Factual Background Review of the veteran's service medical records indicates significant amounts of treatment for low back pain just prior to her separation from service. This treatment appears to have begun in January 1978 and continued throughout the remainder of her period of service. Significant events are noted below. In January 1978, the veteran received physical therapy after injuring her back lifting metal shelves at work. She reportedly did a lot of lifting at times. She had had problems in the past. She had worn a back brace for two years, off and on. She reported pain in the middle of the low back that went into the buttocks. The assessment was back strain. A November 1979 treatment report indicates that four days earlier she had felt back pain. She had no history of trauma, but had simply felt pain in her back when sitting at her job. The pain was in the lumbosacral spine into the left leg. In September 1981, the veteran was seen at a service emergency room with complaints of left low back pain. She reported injuring her back two weeks earlier. She had no relief with medication. She had pain radiating down the lateral thigh. The diagnosis was acute herniated disc, and she was referred for further treatment. The veteran was hospitalized in January 1982. She reported a two-week history of low back pain that radiated down the right leg. This had grown steadily worse in intensity until the veteran admission. She had a similar episode three months earlier during which she was hospitalized. She had undergone a myelogram at that time that was negative for disc disease. She had been hospitalized for three weeks, then gradually improved to the point where she could return to work on a limited activity basis. - 9 Neurological examination revealed her deep tendon reflexes to be 1+ and equal at the patellae, with 2+ ankle jerks. He back and spine revealed a normal spine configuration. She had tenderness in the low back in the midline and on the left, but not to hip maneuvers. The impression on admission was low back pain with sciatic component, etiology unknown. After two weeks of bed rest, pelvic traction, and medication there was little or no improvement in the veteran condition, and she seemed to have an increase in her left leg pain. A trial at physical therapy seemed to cause an increase in her leg pain. At that time she was transferred to another service hospital for neurology consult and treatment. Records of this next admission, also in February 1982, reveal a complete neurological examination was performed. The veteran demonstrated normal strength, sensation, and deep tendon reflexes in her lower extremities. There was point tenderness in the left sciatic notch and at the origin of the left pyriformis muscle. Palpation of these points reproduced the veteran's pain exactly. The examination was noted to be consistent with pyriformis syndrome. The pyriformis muscle was injected and the veteran noted marked relief of leg and back pain with mild anesthesia to the skin innervated by the sciatic nerve and weakness of the muscles in that distribution. The pain was not completely obliterated and a repeat infiltration was performed without incident. The veteran described marked improvement of her pain, but noted a dull discomfort that persisted. It was felt that the veteran's symptoms were attributed solely to pyriformis syndrome causing low back pain. In March 1982, the veteran was noted to continue to have low grade back pain. She was recommended for facet injections. One week later she still had intermittent pain. A diagnosis of pyriformis muscle syndrome was suspected. In April 1982, she was noted to have recurrent pyriformis muscle syndrome pain especially over the prior three days. A 90 day profile was renewed at that time. - 10 She was treated for recurrent back pain in the L3-L4 area in July 1982. It had not been relieved with four days of bed rest. The veteran was hospitalized in October and November 1982. She reported a threeyear history of low back pain that had started when she fell from a truck. The pain radiated down the left leg and had been worsening the previous six months. The pain decreased with absolute rest and increased with activity. She denied any weakness. She had had the left pyriformis muscle injected in January 1982 with temporary relief. She had current complaints of lumbosacral pain radiating into the right and left posterior thigh, the right being worse, and then running down the right lateral side of the leg te> the great toe. Physical examination showed full motor strength in the extremities, with decreased but symmetrical deep tendon reflexes. Straight leg raise was negative. A lumbar epidural block was performed on two occasions. These gave her some fairly good relief. She was also fitted with a back brace that seemed to help somewhat. The final diagnosis was low back pain, with no evidence of significant herniated nucleus pulposus. She was discharged with a six-month profile. In January 1983 on her separation examination it was noted that she had chronic low back pain. She reported on her report of medical history that she had had severe back, leg, and arm pain since January 1978. She had a back brace since November 1982. A neurosurgery consultation report recorded complaints of lumbosacral pain to both legs, the right greater than left. It had been worse the last year but she was not on any medication. She was on a temporary profile. Straight leg raise test was negative bilaterally. She had full strength with give way weakness. The neurologist's diagnosis was chronic pain syndrome. A January 1983 profile shows assignment limitations were codes C, D and G: No crawling, stooping, running, jumping, marching, or standing for long periods; no mandatory strenuous activity; and no assignment requiring heavy materials including weapons (except individual weapons) and no overhead work, pull-ups, or pushups. 11 VA first examined the veteran after service in May 1983. She noted complaints of severe pain in her back, both legs, and her left arm. The pain was so severe at time that she could not move under her own power. She reported being told that she had. nerve damage, a cracked vertebra, and disc disease. She reported having had a myelography in the past that showed a herniated nucleus pulposus. On physical examination, the examiner noted that the veteran did a lot of moaning and groaning, in regards to her back, and claimed to be in constant pain. She had an upright posture and seemed to keep her back straight and stiff when she walked. There was no tenderness over the spine. There was a mild degree of paravertebral muscular spasm on the right and over the lumbosacral area, and there was a mild scoliosis of the thoracolumbar spine. A decreased range of motion was noted in the lumbosacral spine. The range of motion was limited by pain. She could flex her lumbar spine forward 50 degrees. Extension was to 20 degrees. Flexion laterally was to 40 degrees and rotation to 35 degrees. Neurological examination was entirely within normal limits. The veteran was noted to wear a supportive brace around her abdomen. She said it did not help, but the army doctors in Texas made her wear it. The examiner's impression was chronic low back pain, possibly secondary to herniated nucleus pulposus. The examiner noted the records of the myelogram were not available. The report of a VA X-ray examination of the veteran's lumbosacral spine in May 1983 showed no significant abnormalities were appreciated. Two views of the thoracic spine revealed only minimal degenerative changes in the mid thoracic spine, noted by minimal osteophytic formation. The alignment and disc spaces were within normal limits. VA next examined the veteran in February 1985. At that time she noted severe and constant pain in her back, both legs, and left arm. The pain was reported to vary from moderate to unbearable. She reported that she fell without warning, so had to use crutches nearly all the time. The pain in her back felt like she had been hit very - 12 hard with something. Her leg pain went from her back to her foot on the left side and to the knee on the right side. The leg pain felt like a combination between a burning sensation and cramps. She could not complete the simplest of jobs without ending up in bed for 2 or 3 days. The examiner noted that the veteran was a student at a community college - when she was able to go. Her chief complaint was pain in the low back, both legs, and in her neck and left arm. She first hurt her back when she fell in January 1978. She had fallen many times since then. She wore two aluminum crutches normally to keep from falling. She was given pain pills by the Army and sent back to work. She now hurt all of the time, sometimes severely, sometimes not so. She reported having had a myelogram in 1982 at Ft. Washouka. The doctor had said that she had a severed disc and another said that she did not. She reported having been in hospitals probably a dozen times. She had Marcane blocks into the painful areas in her back. She had had traction, medications, and many types of physical therapy. She reported being seen by orthopedists, neurologists, neurosurgeons, and psychiatrists. She stated that the psychiatrists had always told her that there was nothing wrong with her mind. She was discharged from service on a regular basis, rather than on a medical discharge and was told to get into the veteran's program. She reported that she had not taken pain medication for a year except for Anacin, without codeine. That took the edge off the pain at times. She had not had any type of narcotic for over a year. She reported hurting from the waist down, worse on the left side than on the right. She did have symptoms in her upper left arm, and had reduced strength in her left arm. She stated that she was healthy all over, except for her back, neck, and extremities. She reported having looked for jobs, but no one would take her being as sore as she was in her back. The examiner noted that the veteran walked carefully with two crutches to keep her from falling. She was not tender in her upper back, but was quite tender from the - 13 level of L-2 to the lumbosacral leve1. She was sore to percussion on both the right and left at the lumbosacral level. She was not tender to percussion or palpation at the sciatic notch on the left, but was quite tender on the right. She bent to reach just to knees. She stood taking most of her weight on her left leg. The examiner noted that straight leg raising was to 45 degrees bilateral1y. Hip flexion was to 110 degrees bilateral1y. Rotation of the lower extremities caused pain extending from the hip to the lumbosacral area. Knee kick reflexes were 0 to 1+ on the left and right. Ankle jerk was to 1+ right and left. Her hamstrings were weaker than normal, weaker on the right than on the left. Quadriceps strength was reduced, but seemed strong enough to protect her from fa1ling. She had reduced sensation on the left side of the medial calf. The right had less numbness than the left. She had pain from the left leg worse than the right. The great toes had good strength. The examiner opined that the veteran had chronic low back strain with some neurological changes. He noted that she probably should have a CT scan and a repeat myelogram at some time. Treatment records from the veteran's VA hospitalizations and outpatient treatment are also of record. In May 1985, the veteran presented with complaints of neuritis in her back, the middle and left side. She had not been on medications for 3 1/2 weeks, but could not stand it now. She was having difficulty driving and walked with crutches. In June 1985, she was evaluated for back pain. She had felt OK for two weeks, but then it felt like needles stuck in her back with burning. She was walking on crutches. Later in June she returned a TENS unit, stating she had increased pain when she used the TENS. From April 25 to May 2, 1986, the veteran was admitted to VA hospitalization. She had presented to the Emergency Room with an acute episode of back pain. She had last been seen in May 1985 for physical therapy at the VA hospita1. She had been using a TENS unit for chronic low back pain. The veteran reported that she had - ] 4 been doing fairly well until the onset of the symptoms. The symptoms on admission indicated that she had acute back pain mostly confined to the lower back, radiating to the left buttock and posterior thigh. Pain was acute in nature, persistent all the time, precipitated by spinal maneuver, and relieved by bed rest. She denied any neurogenic bowel or bladder. She also denied any weakness of the lower extremities other than what was related to pain associated with limited activity. At the time of the admission, the veteran was four months pregnant. On physical examination, the veteran had a limited range of motion of forward flexion, back extension, side-to-side movement, and rotation due to pain. Also noted was mild to moderate paraspinous muscle spasm extended from L2-L5. There was mild to moderate tenderness on deep palpation and ,percussion ofL3, L4, and L5 paraspinous processes. Straight leg raising was positive on the left at 80 degrees. Lower extremity examination showed range of motion, both active and passive, within normal limits. There was normal tone and no atrophy noted. There was some weakness noted due to pain, but no decrease to sensation in the L5 distribution. She had an antalgic gait with decreased weight bearing on the left and short steppage. She was able to stand on heels and toes, although she had some difficulty controlling balance. Analysis Prior to February 19, 1985, the veteran's chronic low back strain with history of pyriformis syndrome and radiculopathy, L4-L5, meets the criteria for a rating greater of 40 percent. The evidence of the veteran's disability obtained during the February 1985 VA examination and records of the frequency of the veteran's attacks of symptomatology consistent with severe recurring attacks of intervertebral disc syndrome, but with intermittent relief, clearly supports a 40 percent disability rating under DC 5293. Review shows the evidence meets the criteria for a 40 percent rating under DC 5293 for intervertebral disc syndrome during the time period from the veteran's separation from service to the veteran admission to the hospital in April 1986. The treatment records show that the veteran did have recurring attacks of - 15 symptomatology consistent with sciatic neuropathy, demonstrable muscle spasm and other neurological findings. The evidence does show that she had periodic relief of her symptoms. During the period immediately after her relief from service, the evidence shows that she frequently felt incapacitated by the pain and was walking with crutches to avoid pain. The treatment records do demonstrate that she had relief, for example the May 1985 treatment records indicated that she had felt "OK" for the previous two weeks. This was the last treatment prior to the May 1986 hospitalization, thus she had a period of approximately a year wherein she experienced symptoms that did not necessitate treatment. Thus during that period, prior to April 21, 1986, the Board finds that the veteran's chronic low back strain with history of pyriformis syndrome and radiculopathy, L4-L5, did not create symptomatology meeting the criteria for a rating greater than 40 percent. After April 1986, the records clearly show increased treatment including VA hospitalization clearly show entitlement to a rating of 60 percent. However, before that hospitalization, the evidence does not support entitlement beyond 40 percent. In order to show entitlement to a 60 percent rating, pronounced intervertebral disc syndrome with recurring attacks must be shown with little intermittent relief. The finds that the year period of no treatment prior to April 1986 VA hospitalization effectively removes this level of disability from consideration. A year cannot be considered to be little intermittent relief. The veteran cannot be said to been having experiencing "pronounced" symptoms when they did not lead her to seek treatment. The provisions of DC 5295 and 5292 do not provide for a rating greater than 40 percent, thus are not for application. In sum, the evidence supports a 40 percent disability rating from the date of the veteran's separation from service until the veteran entered VA hospitalization in April 1986. At that time, the evidence supports a 60 percent disability rating under DC 5293 for pronounced intervertebral syndrome, with recurring attacks and little intermittent relief. - 16 ORDER An original disability rating of 40 percent for chronic low back strain with history of pyriformis syndrome and radiculopathy, L4-L5, prior to February 19, 1985 is granted, subject to the regulations governing award of monetary benefits. An original disability rating greater than 40 percent for chronic low back strain with history of pyriformis syndrome and radiculopathy, L4-L5, prior to April 21, 1986 is denied. REMAND The failure to issue a SOC for the veteran's appeal of the denial of her claim of CUE in the September 1987 rating decision denying entitlement to TDIU in such circumstances as noted above is a procedural defect requiring a remand. Manlicon v. West, 12 Vet. App. 238 (1999); see also Archibald v. Brown, 9 Vet. App. 124, 130 (1996). Accordingly the veteran's appeal is remanded to the RO for the following actions: The RO should undertake appropriate action pursuant to 38 C.F.R. § 19.26 (2003), including issuance of a statement of the case, in response to the January 2003 notice of disagreement initiating an appeal on the issue of the clear and unmistakable error in the rating decision of September 1987 denying TDIU. The veteran and her representative should be notified of the requirement that a timely substantive appeal must be received to complete the appeal as to these issues. - 17 The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See Veterans Benefits Act of 2003, Pub. L. No.1 08-183, §707, 117 Stat. 2651, (Dec. 16. 2003) (to be codified at 38 U.S.C. §§ 51 09B and 7112); The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA' s Adjudication Procedure Manual, M21-1, Part IV, directs the R Os to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02. WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals - 18 020488236 031031 10830003 DOCKET NO. 02-12257 DATE OCT 31 2003 On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for defective hearing in the left ear. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an evaluation in excess of 10 percent for patellofemoral arthritis of the right knee. REPRESENTATION Appellant represented by: Maine Division of Veterans Services WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from May 1954 to September 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal of January and December 2002 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. In correspondence of August 2002, the veteran indicated that he wished to withdraw from consideration the issues of entitlement to service connection for arthritis of the feet and chondromalacia patella of the left knee (claimed as arthritis). Moreover, in a rating decision of March 2003, the RO granted service connection (and a 10 percent evaluation) for defective hearing in the right ear. Accordingly, those issues, which were formerly on appeal, are no longer before the Board. The sole issues remaining for appellate review are those listed on the title page of this decision. REMAND The veteran in this case seeks service connection for chronic tinnitus and defective hearing in the left ear, in addition to an increased evaluation for service-connected patellofemoral arthritis of the right knee. In that regard, a review of the record discloses that the veteran last underwent a VA orthopedic examination for compensation purposes in September 2002, more than one year ago. Under such circumstances, an additional, more contemporaneous -2 examination will be undertaken prior to a final adjudication of the veteran's claim for an increased evaluation for patellofemoral arthritis of the right knee. The Board further notes that, during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). This liberalizing law is applicable to this appeal. The VA has promulgated regulations to implement the provisions of this law. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). The VCAA and implementing regulations essentially provide that the VA will assist a claimant in obtaining evidence necessary to substantiate his claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. Pursuant to the VCAA, the VA has a duty to notify the veteran and his representative, if any, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2003); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that, despite the issuance (in July 2002) of a Statement of the Case containing certain of the regulatory provisions pertaining to the VCAA, the RO has failed to provide the veteran and his representative with adequate notice of the VCAA, or of the information and evidence needed to substantiate his claims. This lack of notice constitutes a violation of the veteran's due process rights. Accordingly, the case must be REMANDED to the RO in order that the veteran and his representative may be provided with such notice. In light of the aforementioned, the case is REMANDED to the RO for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to December 2002, the date of the most recent evidence of record, should be obtained and incorporated in the claims folder. The veteran should be requested to sign the necessary authorization for release of any private medical records - 3 to the VA. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard. 2. The veteran should then be afforded a VA orthopedic examination in order to more accurately determine the current severity of his service-connected right knee disability. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the physician. All pertinent symptomatology and findings should be reported in detail. Following completion of the examination, the examiner should specifically comment as to the degree of limitation of motion (to include flexion and/or extension) directly attributable to the veteran's patellofemoral arthritis of the right knee. The examiner should comment as to the degree of disability (mild, moderate, or severe) directly attributable to the veteran's patellofemoral arthritis of the right knee. The physician's comments should encompass the veteran's medical history, as well as the effects of his service-connected right knee disability upon his ordinary activities, to include episodes of instability, as well as any functional loss due to pain, on use or due to flare-ups. 3. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims - 4 folder. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 4. The RO should then review the veteran's claims file, and ensure that all notification and development action required by the VCAA is complete. In particular, the RO should ensure that the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5103, 5103A (2002), and in 38 C.F.R. § 3.159 (2003) are fully complied with and satisfied. Compliance requires that the veteran be notified, via letter, of any information and any medical or lay evidence not previously provided to the Secretary which is necessary to substantiate the claims. A general form letter, prepared by the RO not specifically addressing the disability or disabilities at issue is not acceptable. The RO must indicate which portion of that information and evidence, if any, is to be provided by the claimant, and which portion, if any, the Secretary will attempt to obtain on behalf of the claimant. After the veteran and his representative have been given notice as required by 38 U.S.C.A. § 5l03(a) and 38 C.F.R. § 3.159(b) (see also Quartuccio, supra.), they should be given the opportunity to respond. 5. The RO should then review the veteran's claims for service connection for chronic tinnitus and left ear hearing loss, as well as for an increased evaluation for service-connected patellofemoral arthritis of the right knee. Should the benefits sought on appeal remain denied, the veteran and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant - 5 action taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. The RO is advised that they are to make a determination based on the law and regulations in effect at the time of their decision, to include any further changes in the VCAA. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The veteran need take no action until otherwise notified. The purpose of this REMAND is to obtain additional development, and to comply with recently-enacted legislation and decisions of the United States Court of Appeals for the Federal Circuit. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M2l-l, Part IV, paras. 8.44-8.45 and 38.02-38.03. RENEE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals -6 Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2002). -7 105426647 040115 957024 04-01473 DOCKET NO. 03-086A DATE JAN 15 2004 On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE 1. Entitlement to service connection for disability of the cervical spine. 2. Entitlement to service connection for disability of the lumbar spine. REPRESENTATION Appellant represented by: Jay G. Williams, III, Attorney ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The veteran served on active duty from March 1970 to January 1974, and had additional service in the Army National Guard of New York. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2000 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Additionally, during the course of this appeal, the veteran has raised issues relating to entitlement to service connection for a left hip, shoulder and arm disorders. These issues are referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Disabilities of the cervical spine and lumbar spine are of service origin. CONCLUSION OF LAW 1. A disability of the cervical spine was incurred in active service. 38 U.S.C.A. §§ 5107, 1110 (West 2002); 38 C.F.R. § 3.303 (2003). 2. A disability of the cervical spine was incurred in active service. 38 U.S.C.A. §§ 5107,1110 (West 2002); 38 C.F.R. § 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION There has been a significant change in the law during the pendency of this appeal with the enactment ofthe Veterans Claims Assistance Act of2000 (VCAA), Pub. L. - 2 No. 106-475, 114 Stat. 2096 (2000). See, 38 D.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2002). This law eliminates the concept of a well-grounded claim, and redefines the obligations of V A with respect to the duty to assist. The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The final rule implementing the VCAA was published on August 29,2001.66 Fed. Reg. 45,620-32 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The file shows that by rating decisions dated in February 2000 and August 2001, a letter dated in April 2001, and the December 2002 statement of the case, the veteran has been notified of the evidence necessary to substantiate his claim and what evidence the VA would obtain. Quartuccio v. Principi 16 Vet. App. 183 (2002). Relevant medical records have been obtained to the extent possible, and V A examinations have been conducted. In light of the favorable disposition in this case, the Board finds that the notice and duty to assist provisions of the law have been satisfied. See 38 D.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2003). Factual Background A review of the veteran's service medical records reflects that on entrance medical examination in September 1969, the veteran's spine was clinically normal. In a report of medical history completed in September 1969, the veteran denied a history of recurrent back pain. A treatment note dated in early June 1970 reflects that the veteran was involved in an automobile accident. He complained of right shoulder and neck pain. He did not complain of back pain. On examination, the veteran had full range of motion, and there was slight pain in the anterior neck when the head was turned to the left. X-ray studies of the cervical spine and right shoulder were negative. The diagnosis was no injury of significance. In August 1970, the veteran complained of back pain for one and one-half days. A diagnosis was not indicated. Records reflect that on May 12, 1972, the veteran underwent a lumbar puncture. During the next few days, - 3 the veteran complained of low back pain. He was diagnosed with post lumbar puncture syndrome. On annual medical examination performed in August 1972, the veteran's spine was listed as normal. In a report of medical history completed in August 1972, the veteran denied a history of recurrent back pain. In early March 1973, the veteran was involved in a motorcycle accident. He was treated for abrasions of the left arm and hand. He had no complaints with respect to the neck or back, and no injuries to these areas were identified. On separation medical examination in January 1974, the veteran's spine was listed as clinically normal. In a report of medical history completed in January 1974, the veteran denied a history of recurrent back pain. Post-service medical records are negative for back complaints until 1977. An attending physician's 48-hour report for the New York Workmen's Compensation Board reflects that the veteran was treated for complaints of severe back pain after lifting cartons of oil at work in August 1977. The diagnosis was myalgia of the lumbosacral region. A private emergency room record dated in January 1979 shows that the veteran was treated for injuries received in a motor vehicle accident. He complained of neck pain. An X-ray study of the cervical spine was negative. A report of medical history completed by the veteran in June 1988 (for preemployment purposes as a prospective civilian employee of the Air Force) reflects that the veteran denied a history of recurrent back pain. A report of medical history completed by the veteran in August 1990 (as a civilian employee of the Air Force) reflects that he denied a history of recurrent back pain. He reported that he had a back injury at work in November 1989 while lifting a pallet. He said he felt a pop in his back. In a certificate of medical examination performed for the United States Civil Service Commission, the examiner noted that the veteran had chronic 10wer back tenderness. The diagnosis was chronic low back pain of questionable etiology. - 4 By a letter dated in April 1994, a private physician indicated that the veteran had a herniated disc with spinal instability due to his workmen's compensation injury, and was totally disabled as a result. A December 1994 attending doctor's report for the New York Worker's Compensation Board reflects that the veteran was injured in November 1989. This form was completed by Dr. Shankman. The diagnoses were lumbosacral instability and cervical stenosis. Dr. Shankman opined that the veteran's injury might result in traumatic arthritis. A January 1995 VA X-ray study of the veteran's lumbosacral spine was normal. A March 1995 VA outpatient treatment record shows that the veteran had multiple problems associated with the neck and back. The examiner noted that the veteran had a back injury while lifting in 1989. A March 1995 VA magnetic resonance imaging (MRI) scan of the cervical spine showed small herniated discs at C2-3, C3-4, and C5-6. An MRI of the lumbar spine was negative. At an April 1995 VA examination, the veteran reported that he had neck and low back pain ever since he had a neck and back injury while lifting a pallet in 1989. The pertinent diagnoses were cervical disc disease, by MRI, and mechanical low back pain. By a letter dated in September 1995, Dr. Shankman indicated that the veteran had a herniated disc in his neck due to a worker's compensation injury. By a letter dated in November 1999, Dr. Shankman noted that the veteran had pain and irritability with his neck and back. He stated, "Apparently, the neck has just been treated by the VA for one cervical herniated disc and he has multiple cervical herniated discs in the neck with degenerative disc disease in the back, which are his workers' compensation problems. I believe this differentiates between the two." In December 1999, the veteran submitted a claim for service connection for a back condition resulting from an accident during active duty. In January 2000, the RO - 5 received lengthy written argument from the veteran, to the effect that he incurred chronic disabilities of the neck and low back as a result of in-service car and motorcycle accidents. By a letter dated in March 2000, Dr. Shankman stated that the veteran was "...currently suffering from a herniated disc at C2-C3, C3-C4 and C5-C6, as well as degenerative disc disease at L5-S 1 which we relate both to the motor vehicle accident of June, 1970 and the motorcycle accident of March, 1976... .The back problem was pre-existing and due to a surface injury." He enclosed copies of outpatient treatment notes dated from 1993 to 1999 reflecting treatment for disabilities of the cervical spine and lumbosacral spine. In an August 1993 treatment note, he indicated that the veteran had neck and back trouble since a work injury in 1989 while lifting a pallet. In a November 1993 treatment note, he opined that the veteran's neck injury was related to his injury at work and the lumbar spine instability was related to lifting a pallet. He stated, "He pulled his neck and aggravated the spondylolisthesis in his back causing the spinal instability. I feel that this is all related to his work injury." In a December 1999 treatment note, Dr. Shankman indicated an impression ofhe1l1iated discs at C2-C3, C3-C4, and C5-C6. He stated, "The one he1l1iated disc is the result of an incident while he was in the service. The other discs are a result of his compensation." At a VA spinal examination in May 2000, the veteran reported that he had neck and low back pain ever since a motor vehicle accident in 1970. He related that he was in a motorcycle accident in 1973, and experienced back pain as a result. He stated that after service, he worked in construction, and experienced episodes of backache. He reported a lifting injury to his low back in 1988. He said he subsequently had another back injury, and was placed on medical retirement in 1991. The examiner noted that he had reviewed the claims file. The diagnoses were multiple disk herniation of the cervical spine without radiculopathy, and degenerative intervertebral disk disease of the lumbar spine. The examiner opined that the veteran's symptoms were grossly out of proportion to the amount of physical findings on this examination. He stated, "Certainly the veteran sustained injuries to the neck and the low back i11 his motor vehicle and - 6 motorcycle accidents while he was on active duty and these certainly are precipitating factors in chronic conditions of the cervical and lumbar spine. The injuries that he sustained during the civilian occupations are aggravations of those conditions." The doctor added that the veteran's bone density studies showed significant demineralization of the veliebral segments, the etiology of which was obscure. He opined that this condition could be contributing to the veteran's chronic neck and back pain. By a letter to Dr. Shankman dated in February 2001, the RO asked him to provide the rationale for his opinion that the veteran's herniated disc and degenerative disc disease were both related to the motor vehicle accident of June 1970 and the motorcycle accident of March "1976". In March 2001, the RO received duplicate copies of Dr. Shankman's March 2000 letter and outpatient treatment records. At a June 2001 VA examination performed by the same examiner who performed the May 2000 V A examination, the examiner noted that he had reviewed the claims file. He diagnosed multiple cervical intervertebral disc herniations, and degenerative intervertebral disc disease of the lumbar spine. He added, "In my report of May 15,2000, I noted that the veteran sustained injuries to his neck and his low back in the motor vehicle and the motorcycle accidents while on active duty and that those injuries were precipitating factors in the development of the veteran's present condition of his neck and lumbar spine. My opinion remains unchanged. Therefore, it is my opinion that it is at least as likely as not that the veteran's neck and low back conditions are related to the injuries that the veteran sustained while on active duty in 1970 and 1976." Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2003). - 7 Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately displayed, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2003). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2003). To summarize, lay statements describing the symptoms of a disability and inservice injuries are considered to be competent evidence. However, as a layperson the veteran is not competent to give a medical opinion on actual diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 VetApp. 492 (1992). In this regard, while on active duty the veteran did sustain injuries to the neck and shoulder when he was involved in an automobile accident in June 1970 with complaints of back pain the following month. Also, he was involved in a motorcycle accident in 1973 without any specific reference to the neck or back. The post service medical records show that beginning in 1977 he sustained several injuries to his neck and back. However, a VA examiner examined the veteran in May 2000 and June 2001 and on each occasion indicated that the examiner had reviewed the evidence in the claims folder. Following each examination the examiner opined that the veteran's inservice motor vehicle accidents precipitated his current disabilities of the cervical and lumbar spine. In May 2000 he also opined that the veteran's post-service neck and back injuries aggravated his pre-existing service-related neck and back disabilities. In light of the opinions of the VA examiner and the most recent opinion by Dr. Shankman, the Board finds that there is a reasonable doubt that the current disabilities of the cervical and lumbar spine began in service as a result of motor vehicle accidents. See 38 C.F.R. § 3.303(d) (2003). The evidence is approximately - 8 balanced, for and against the claim, and the benefit of the doubt is to be resolved in favor of the veteran. 38 U.S.C.A. § 5107(b) (West 2002). The Board concludes that the current disabilities of the cervical and lumbar spine were incurred in service, and service connection is warranted. ORDER Service connection for a disability of the cervical spine is granted. Service connection for a disability of the lumbar spine is granted.. ROBERT P. REGAN Veterans Law Judge, Board of Veterans' Appeals - 9