Citation Nr: 0810765 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-36 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for residuals of hip injury. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Kreitlow, Associate Counsel INTRODUCTION The veteran had active military service from December 1950 to December 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. The Board notes that the RO also issued a rating decision in March 2004. This rating decision indicates the veteran's claims are actually ones to reopen previously denied claims for service connection. The veteran's claims file presently before the Board is a rebuilt file due to the original claims file being misplaced. There is no record in the rebuilt claims file of any previous adjudication of these claims or of what evidence was previously considered by the RO. Because of this, the Board is unable to evaluate whether new and material evidence has been received since the last denial of these claims. The Board will, therefore, proceed to adjudicate the veteran's claims on the merits. The Board also notes that the claims file includes the veteran's completed NA Form 13055, with two statements, that was apparently received at the Appeals Management Center in September 2001, but did not make its way into the claims file for RO review. The Board finds that it is not prejudicial to the veteran for it to proceed with considering his case without RO consideration of these documents. First, one of the statements provided (dated in February 2005) is already of record, and second, the documents do not provide any information not previously considered that would assist in locating his service medical records or other documentation relating to his claimed conditions. FINDINGS OF FACT 1. The veteran's currently has degenerative arthritis of both hips that is not related to his military service. 2. Resolving all reasonable doubt in favor of the veteran, his current lumbar spine disorder (degenerative disc disease, spondylosis and stenosis) is related to an injury received from a fall from a horse during the veteran's military service. CONCLUSIONS OF LAW 1. Degenerative arthritis of the hips was not incurred in service. 38 U.S.C.A. §§ 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.159, 3.303, 3.304, 3.307, 3.309 (2007). 2. The criteria for service connection for degenerative disc disease, spondylosis and stenosis of the lumbar spine are met. §§ 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Requirements 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits. Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Sufficient notice must inform the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim; (2) of the information and evidence that VA will seek to provide; (3) of the information and evidence that the claimant is expected to provide; and (4) that he or she should provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1) (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). As previously noted, the veteran's claims file was rebuilt. Thus the original notice sent to the veteran is not of record. The Board notes, however, that the rating decisions issued in February and March 2004 both reference a letter that was provided to the veteran in November 2003 advising him to submit additional evidence in support of his claims. Additional notice was provided to the veteran in January 2007. Although the contents of the November 2003 notice is unknown, it can be presumed that it was deficient in that it failed to provide notice to the veteran of the fourth Pelegrini II element because it was issued prior to 2004. Notice of this element was, however, provided in the January 2007 letter. The veteran's claims were readjudicated in October 2007 after affording him with ample opportunity to respond to the January 2007 letter. The Board finds, therefore, that VA has cured the late timing of the notice of the fourth Pelegrini II element as the veteran has been afforded appropriate notice and subsequent adjudication. Thus there is no prejudice to the veteran by the Board proceeding to adjudicate his claims. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board also notes that the veteran was provided notice in March 2006 pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006), that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. However, given the denial of the veteran's claim for service connection for residuals of a hip injury, any questions as to a disability rating or effective date for that disability are moot. As for the claim for service connection for a lumbar spine disorder, the RO can cure any prejudice to the veteran prior to executing the Board's grant of that claim. Thus the Board finds that the veteran has not been prejudiced by VA's failure to provide notice earlier on these elements of his claims. Finally, the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. He was told it was his responsibility to support the claims with appropriate evidence and has been given the regulations applicable to VA's duty to notify and assist. Indeed, the veteran submitted substantial evidence in connection with his claims, which indicates he knew of the need to provide VA with information and evidence to support his claims. Thus the Board finds that the purposes behind VA's notice requirement have been satisfied, and VA has satisfied its "duty to notify" the veteran. With respect to VA's duty to assist, the RO attempted to obtain all medical records identified by the veteran. The RO attempted to obtain the veteran's service medical records but was advised by the National Personnel Records Center (NPRC) that his records are considered to have been lost in the 1973 fire. The NPRC was, however, able to provide copies of the veteran's entrance and separation examination reports as well as a few other pages that are not relevant to the claims before the Board. The RO notified the veteran of this and requested that he submit any service medical records that he may have in his possession or provide alternative evidence such as lay statements, to support his claims, and he has done so. He was also asked to complete and return NA Form 13055, which was received by the Board in March 2008 but does not identify any new sources for service records that would show treatment for the claimed disabilities in service. The veteran has not identified receiving medical treatment at any VA facility. He did, however, identify private medical treatment records from multiple private providers, and the RO obtained those records. The veteran was notified in the rating decision, Statement of the Case and Supplemental Statements of the Case of what evidence the RO had obtained and considered in rendering its decisions. VA is only required to make reasonable efforts to obtain relevant records that the veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1) (West 2002). VA, therefore, has made every reasonable effort to obtain all records relevant to the veteran's claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. The veteran was afforded VA examination on his claims in May 2007. Thus, the Board finds that VA has satisfied its duties to inform and assist the veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1131 and 1137 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a) (2006). Osteoarthritis is one of the enumerated chronic disease subject to presumptive service connection in 38 C.F.R. § 3.309(a). The veteran alleges that the claimed hip and back conditions were caused by a fall from a horse he sustained in service while stationed at Fort Chaffee. He says that a friend of his took care of a general's horses and bird dogs on Sunday afternoons and he sometimes went with him to ride the horses. On this particular day, the horse he usually rode threw him. He reports being seen in the dispensary upon return to base and being given aspirin. He also reports that he later received physical therapy, and that he has had to use pain medication since then for chronic pain. As previously discussed, the veteran's service medical records are presumed to have been lost in the 1973 fire at the NPRC, although his separation examination has been obtained. There is no report by the veteran of a history of a low back and/or hip disorder during service nor was there any findings made on examination. Residuals of Hip Injury The private treatment records obtained in support of the veteran's claim do not show any treatment for or diagnosis of a hip disorder. The veteran did, however, undergo a VA examination in May 2007 at which the VA examiner diagnosed him to have degenerative arthritis of the hips bilaterally. The VA examiner, however, opined that it is less likely than not that the veteran's current bilateral hip arthritis is related to service. The examiner stated that, in fact, he does not believe it is in any way related to the veteran's horse injury, but is simply wear and tear arthritis of time and mileage. Thus, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for residuals of a hip injury. The medical evidence is against the veteran's claim as the VA examiner clearly opined that the veteran's bilateral hip arthritis is age-related and not due to any injury received when the veteran fell off a horse in 1952. The Board acknowledges that the veteran has submitted lay statements in support of his claims, but these statements only relate that the incident occurred and that the veteran had back problems. They do not relate any history of hip problems from the time of this injury. Thus service connection is not warranted for the veteran's bilateral hip arthritis on a direct basis. Nor is there any evidence that the veteran's bilateral hip arthritis manifested to a degree of 10 percent within one year of his separation from service. The first medical evidence of arthritis of the hips is the VA examination from May 2007, more than 55 years after the veteran's discharge from service. Thus presumptive service connection is not warranted for the veteran's bilateral hip arthritis. The preponderance of the evidence being against the veteran's claim for service connection for residuals of a hip injury, the benefit of the doubt doctrine is not applicable. Consequently, the veteran's claim must be denied. Lumbar Strain and Degenerative Joint Disease Private medical treatment records are on file for treatment for a low back disorder since August 2004. An August 2004 treatment note indicates that a magnetic resonance imaging (MRI) study conducted earlier that month described levoscoliosis with degenerative changes and acute edema at L4 suggesting acute/subacute compression, relative canal stenosis at L3-4 and L4-5, herniated nucleus pulposus (HNP) centrally and slightly to the right at L3-4 with possible free fragment, nerve root compression on the left at L4-5 with acentrically bulging disc or disc protrusion narrowing the neural foramen. Diffuse spondylosis was also noted. The private doctor's assessment was L3-4 and L4-5 spinal stenosis and compression fracture L5. An MRI report from May 2005 indicates the veteran had severe multilevel degenerative disc disease of the lumbar spine most prominently at the L2-L3 level (with posterior disc herniation with extruded disc material on the right lateral recess causing severe central canal stenosis and right neural foramina narrowing) and the L3-L4 level (with posterior bulging and facet hypertrophy combining to cause severe central canal stenosis and bilateral neural foramina narrowing); L4-L5 level disc bulging and facet hypertrophy causing mild to moderate central canal stenosis and neural foramina narrowing; and L5-S1 level facet hypertrophy and disc bulging causing no significant central canal stenosis but bilateral neural foramina narrowing. The veteran underwent VA examination in May 2007 at which he was diagnosed to have severe lumbar degenerative disease with multi-level disc disease, spondylosis and stenosis. Thus the medical evidence clearly establishes that the veteran has a current low back disorder. As previously discussed, there are no service medical records for review, except for the veteran's entrance and separation examination reports. To support his claim, the veteran has submitted multiple lay and medical statements to show that his current low back disorder is related to a fall from a horse in service. The lay statements submitted all relate the veteran's history of falling from a horse in service and having problems with his back. The first lay statement dated in February 2004 is the most relevant. It is from a fellow member of the veteran's platoon who says that he recalls that a friend of the veteran's was assigned to the post veterinarian section and spent his off duty hours caring for the horses and bird dogs of a retired general, and that the veteran used to accompany his friend to this general's place. He also said that he recalls teasing the veteran after one such trip and visiting him in the hospital because the veteran was thrown from his horse. He says that, from that point on, the veteran used medication for pain and underwent treatments for the injury until he was discharged. In addition, the veteran submitted a statement dated in September 2006 from a retired pharmacist from the Wade Clinic in Hot Springs, Arkansas, who says he remembers that, in 1953, he filled many prescriptions for pain medication for the veteran written by a military doctor. The Board finds that the remainder of the lay statements does not carry much evidentiary weight as they either fail to actually express personal knowledge of the incident or relate the veteran's current low back problems with the injury in service, or the facts stated therein are not consistent with those given by the veteran. The Board finds no reason to find the veteran's fellow platoon member's statement or the pharmacist's statement to be incredible. The fellow platoon member's report of the incident is consistent with the veteran's. In addition, he specifically indicates his personal knowledge of the event in that he recalls teasing the veteran and visiting him in the hospital. In addition, the pharmacist's statement is consistent with the veteran's statements that he took pain medication after this incident occurred. Thus these statements corroborate the veteran's testimony as to the incurrence of his fall from the horse in service and his treatment for injuries related thereto. The Board finds that the veteran's statements along with these two lay statements create reasonable doubt as to the incurrence of an injury in service. Reasonable doubt is, therefore, resolved in favor of the veteran, and the Board finds that the veteran incurred an injury in service due to a fall from a horse. Having found that an injury was incurred in service, it remains to be determined whether the veteran's current low back disorder is related thereto. In support of his claim, the veteran submitted a statement from one of his private doctors dated in September 2004. In this statement, the doctor says that the veteran's reported injury of a fall from a horse is compatible with findings of herniation on diagnostic studies. In addition, as previously mentioned, the veteran underwent a VA examination in May 2007. In his report, the VA examiner opined that it is at least as likely as not that the veteran's current back disorder is related to the injury that occurred when he fell off of a horse. The only evidence against the veteran's claim for service connection for his current low back disorder is the reports from his separation examination. The veteran did not report a history of chronic back pain on his Report of Medical History nor was any spine disorder found on examination. The veteran has stated, however, that at the time he separated he was having problems with an ulcer, and he was more focused on that than his back pain at the time. The available service medical records do contain a December 2, 1952, note that shows the veteran returned one day after a consultation complaining of feeling weak and with a blackish bowel movement. It was recommended that he be hospitalized for further observation and to help build up his hemoglobin prior to discharge. Also against the veteran's claim is the lack of medical evidence corroborating a continuity of symptomatology. The first post-service treatment record in the claims file showing a low back disorder is from August 2004, more than 52 years after the veteran's discharge from service. The Board finds, however, that the medical opinions provided by the veteran's private doctor and the VA examiner outweighs the lack of evidence of in-service complaints of or treatment for a low back disorder and of a continuity of symptomatology. Because the Board found, after granting reasonable doubt to the veteran, that the injury reported in service did occur, there is no basis upon which to disregard the medical opinions provided simply because they are based upon the veteran's reported history. Furthermore, the veteran has consistently reported that his low back pain started after the fall from the horse and the occurrence of this incident has been corroborated by lay evidence. Thus there is no reason to find that the medical opinions given were based upon a faulty premise. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (The Board may disregard a medical opinion that is based on facts provided by a veteran that have been found to be inaccurate or in contradiction with the facts of record.). Thus the Board finds that the preponderance of the evidence is in favor of the veteran's claim for service connection for his current low back disorder. Service connection is, therefore, granted for the veteran's current low back disorder currently diagnosed as degenerative disc disease, spondylosis and stenosis. ORDER Entitlement to service connection for residuals of a hip injury is denied. Entitlement to service connection for degenerative disc disease, spondylosis and stenosis of the lumbar spine is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs