Citation Nr: 0810950 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 04-31 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability. 2. Entitlement to service connection for morbid obesity. 3. Entitlement to service connection for a disability manifested by low back pain. 4. Entitlement to service connection for left lower extremity disability. 5. Entitlement to service connection for right lower extremity disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active duty for training from July 9, 1981 to September 25, 1981. He had other active and inactive duty for training with reserve components at unverified dates. He had active military service from February 1985 to January 1987. This appeal comes from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, that determined that new and material evidence had not been submitted to reopen a claim for service connection for personality disorder. The appealed rating decision also denied service connection for morbid obesity, low back pain, right lower extremity disability, and left lower extremity disability. The RO denied service connection for post-traumatic stress disorder (PTSD) in October 2007. The veteran submitted a timely notice of disagreement (NOD), but then withdrew that NOD on the basis that service connection for PTSD was already on appeal. The claims file does not reflect, however, that service connection for PTSD is on appeal. He has until October 26, 2008, to submit a timely NOD, if he desires to continue an appeal for service connection for PTSD. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability and entitlement to service connection for left and right lower extremity disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. FINDINGS OF FACT 1. Morbid obesity was not shown during service nor does the medical evidence attribute it to active service. 2. There is no competent medical evidence showing the veteran has a disability manifested by low back pain related military service. CONCLUSIONS OF LAW 1. Morbid obesity was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. A disability manifested by low back pain was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As set forth at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007), and at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007), VA has a duty to notify and to assist claimants in substantiating a claim for VA benefits. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must give notice to the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b) (1). The RO must provide this notice prior to an unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA's duty to notify the claimant of the information and any medical or lay evidence that is necessary to substantiate the claim was satisfied by way of letters sent to the claimant in February 2004 and in March 2006, which addressed all notice requirements. The letters mention what evidence is required to substantiate the claims, the claimant's and VA's duty to obtain this evidence, and asks the claimant to submit relevant evidence in his possession. VA provided the additional notices recommended by the United States Court of Appeal for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), in March 2006. In this case, all necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. Bernard v. Brown, 4 Vet. App. 384 (1993). Neither the claimant nor his representative has identified, nor does the record indicate, that any additional evidence is necessary for fair adjudication of the claims. No further notice or assistance to claimant is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court discussed the steps to be taken in determining whether a VA examination is necessary prior to final adjudication of a claim. In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Court observed that the third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Further, in Duena v. Principi, 18 Vet. App. 512, 518-19 (2004), the Court held that when the Board considers whether a medical examination or opinion is necessary under 38 U.S.C.A. § 5103A (d) and 38 C.F.R. § 3.159(c) (4), it must provide a written statement of the reasons and bases for its conclusion. In addition, the Court stressed that the Board should make factual findings with respect to the four elements set forth above, and that the Court is precluded from doing so in the first instance. McLendon, supra, at 86; see also Hensley v. West, 212 F.3d 1255, 1263-64 (2000). As such, in those cases where the Board makes a determination that a VA examination is not necessary to decide a service connection claim, it is important to include a discussion that fully sets forth the reasons and bases in support of the decision reached by the Board. In this case, an examination is not necessary to determine the etiology of morbid obesity because the medical evidence of record clearly indicates that the veteran gained only 12 pounds during active service and that his significant weight gain occurred after active service. An examination is not necessary to determine the etiology of his low back pain because (1) his service medical records (SMRs) are silent for any indication of a back injury or complaint of back pain and (2) his private physician has already attributed these low back pains to morbid obesity. Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2007). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 notes, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Chronic diseases listed at 38 C.F.R. §§ 3.307, 3.309 are accorded special consideration for service connection. Where a veteran served at least 90 days during a period of war or after December 31, 1946, and a listed chronic disease, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease will be presumed to have been incurred in service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat veterans under 38 U.S.C.A. § 1154(b), but, because the veteran was not in combat, he will not be afforded this consideration. Morbid Obesity A February 1985 enlistment examination report reflects that the veteran weighed 228 pounds and was 73 1/2 inches tall. A September 1985 service personnel document reflects that he failed to make progress on meeting the Navy's weight standards. An undated treatment report notes obesity. His August 1986 separation examination report reflects that he weighed 240 pounds and was 74 inches tall. Thus, the veteran gained 12 pounds during active service and 1/2 inch in height. A January 1996 private medical report notes that the veteran weighed an estimated 370 pounds. An October 1996 private medical report notes an assessment of obesity and multiple joint aches and pains, probably weight-related. A March 2001 VA mental disorders examination report notes that the veteran had been a janitor, but had been unemployed for more than 5 years. He had a history of obesity and low back pain. In August 2003, the Social Security Administration (SSA) awarded disability benefits based on diagnoses of severe morbid obesity and cluster personality disorder. The veteran weighed over 300 pounds. In September 2004 and again in July 2005, F. Bryant, M.D., concluded that back and knee pains were likely due to morbid obesity. Because the SSA found the veteran disabled from working due to morbid obesity, the Board will consider morbid obesity a disability for VA purposes. While competent medical evidence of morbid obesity is shown, what is missing is any treatment during active service for morbid obesity or any link between morbid obesity and active service. The SMRs reflect a minimal weight gain during active service. The veteran weighed 228 pound at entry and 240 pounds at exit. Thus, he gained 12 pounds during active service, but he also grew in height. Private records reflect that significant weight gain occurred after active service. The diagnosis of morbid obesity was first offered active service. In December 2007, the veteran testified before the undersigned Veterans Law Judge that he gained 70 pounds during active service. Because his SMRs do not reflect a 70 pound weight gain, his credibility as a historian is called into question. After considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence reflects that morbid obesity occurred after active service, the preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for morbid obesity is therefore denied. Low Back Pain The SMRs are silent for any complaint of back pain. An August 1986 separation examination report reflects that the spine was normal. There is no medical history questionnaire at that time; however, on which the veteran might have reported back pain. In February 2004, the veteran claimed that he had low back pain ever since active service. He submitted a February 1995 statement from two acquaintances to the effect that they had observed the veteran to have pain throughout the spine. However, this statement was of present disability, not of symptoms seen during active service. An October 1996 private medical report notes multiple joint aches and pains, probably weight-related. A March 2001 VA mental disorders examination report notes a history of obesity and low back pain. In September 2004 and again in July 2005, Dr. Bryant concluded that back pains were likely due to morbid obesity. The Board finds these assessments persuasive, as they are based on correct facts. In December 2007, the veteran testified before the undersigned that low back pain began during basic training and that he received treatment for it. The Board finds the credibility of this testimony questionable because the separation examination report reflects that the spine was normal and he testified that he gained 70 pounds during active service while his SMRs reflect a gain of only 12 pounds. Finally, although the veteran might be competent to report symptoms, he cannot competently supply the etiology. Lay statements are competent evidence with regard to descriptions of symptoms of disease or disability or an injury, but when the determinative issue involves a question of medical diagnosis or causation, as here, only individuals possessing specialized training and knowledge are competent to render an opinion. 38 C.F.R. § 3.159; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The medical evidence attributes low back pain to morbid obesity. After considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for low back pain is therefore denied. ORDER Service connection for morbid obesity is denied. Service connection for a disability manifested by low back pain is denied. REMAND With respect to whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disability, in May 2006, the veteran alleged that VA committed clear and unmistakable error (CUE) in September 2001 and prior final decisions on the matter. The CUE claim focuses on whether prior final decisions correctly determined the veteran's soundness at entry in active military service. In EF v. Derwinski, 1 Vet. App. 324, 326 (1991), the Court stressed that the Board must address all issues reasonably raised by appellant. The only findings relevant to the CUE claim that the Board can make at this time are (1) that the CUE claim is inextricably intertwined with the application to reopen a claim that is the subject of a prior final decision on the matter; and (2), the CUE claim has not been developed for Board review. Thus, a remand is necessary to develop the CUE claim. See Harris v. Derwinski, 1 Vet. App. 180 (1990). Service Connection for the Left and Right Lower Extremities The SMRs reflect multiple complaints of right and left lower extremity pains at various times (knees, shins, ankles, feet). Thus, the veteran's claims of pains arising during active service and of continuity of symptoms to the present time are plausible. In January 1986, bilateral plantar fasciitis was noted. Pes planus was also noted to have arisen during active service. Although the separation examination report is negative for abnormality of either lower extremity, the veteran's medical history questionnaire from that examination is missing. The veteran submitted a February 1995 statement from two acquaintances to the effect that they had observed the veteran to have pain in the pelvis, back of thighs, knees, ankles, and in the top of the feet. The duty to assist includes providing an examination to determine the nature and etiology of all lower extremity pains. 38 U.S.C.A. § 5103A. See also McLendon, supra. Accordingly, the case is REMANDED for the following action: 1. The AOJ should make arrangements with the appropriate VA medical facility for the veteran to be afforded an orthopedic examination by an appropriate specialist. The claims file should be made available to the physician for review of the pertinent evidence and the physician should take note of the fact that the service medical records note complaints of knee and ankle pains, shin splints, plantar fasciitis, and pes planus. The physician should elicit a complete history of all lower extremity symptoms from the veteran, examine the veteran, and answer the following: I. What is the current diagnosis or diagnoses relative to the knees, shins, ankles, and feet? II. For each diagnosis offered, is it at least as likely as not that this disability had its onset in service? III. The physician should offer a rationale for any conclusion in a legible report. If any question cannot be answered, the physician should state the reason. 2. The AOJ should adjudicate the issue of CUE in the September 2001 and earlier rating decisions. If the CUE claim is denied, the AOJ should provide the appellant with notice of his appellate rights. Upon receipt of a timely notice of disagreement, if any, the AOJ should furnish the veteran and his accredited representative a statement of the case with citation to and discussion of all applicable law and regulations. Thereafter, if the veteran files a timely substantive appeal concerning the CUE issue, VA should certify the issue for appellate review. 3. After the development requested above has been completed to the extent possible, the AOJ should readjudicate the service connection claims. If service connection for lower extremity disabilities remains denied, the veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given an opportunity to respond. Thereafter, the case should be returned to the Board, if otherwise in order. The purposes of this remand are to comply with due process of law and to further develop the veteran's claims. No action by the veteran is required until he receives further notice; however, the veteran is advised that failure to cooperate by reporting for examination may result in the denial of the claim. 38 C.F.R. § 3.655 (2007). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that claims 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs