Citation Nr: 0810962 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-04 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for residuals of a back injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Elizabeth Jalley, Associate Counsel INTRODUCTION The veteran served on active duty from March 1957 to February 1959. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In January 2005, the veteran submitted a written request for a local hearing with a Decision Review Officer. He withdrew this request in writing and instead opted for an informal conference. See 38 C.F.R. § 20.704(e) (2007). FINDINGS OF FACT 1. VA notified the appellant of the evidence needed to substantiate the claim decided herein, explained who was responsible for submitting such evidence, and obtained and fully developed all evidence necessary for an equitable disposition of this claim. 2. There is no competent medical evidence demonstrating that a current back disability is causally or etiologically related to any injury or incident in service, nor is there evidence of arthritis within one year of separation. CONCLUSION OF LAW A back disability is not related to active military service, nor may arthritis be presumed to have been so incurred. 38 U.S.C.A. §§ 1112, 1131, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), enacted on November 9, 2000, emphasized VA's obligation to notify claimants what information or evidence is needed in order to substantiate a claim, and it affirmed VA's duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In August 2001, VA issued regulations to implement the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the agency of original jurisdiction (AOJ) issues the initial unfavorable decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In the present case, the RO provided the veteran with notice of the VCAA in April 2004 and June 2004, prior to the initial decision on the claim in September 2004. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. VCAA notice pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. The basic VCAA notice requirements in this appeal have been satisfied by virtue of the letters sent to the veteran in April 2004 and June 2004. These letters advised the veteran of the information necessary to substantiate his claim and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, these letters expressly told the veteran to provide any relevant evidence in his possession. See 38 C.F.R. § 3.159(b)(1); Pelegrini, 18 Vet. App. at 120-121. A March 2006 letter notified the veteran of the information and evidence necessary to establish a disability rating and an effective date from which payment shall begin. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. VA evidentiary development in the case at hand indicates that the appellant's service medical records were likely destroyed, presumably been lost in a 1973 fire at the National Personnel Records Center (NPRC) facility located in St. Louis, Missouri. VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board also recognizes its heightened duty to explain its findings and conclusions and to consider the benefit of the doubt in such cases. See id.; Dixon v. Derwinski, 3 Vet. App. 261 (1992). In response to an April 2004 records request, the NPRC notified the RO that the veteran's records were destroyed in the fire and that there were no service medical records or Surgeon General's Office records. The RO was told that an "MO5" request could be submitted if the veteran was treated and the necessary information could be supplied. The June 2004 VCAA letter notified the veteran that his records were believed to have been destroyed in the NPRC fire and requested that he fill out and return the enclosed NA Form 13055, "Request for Information Needed to Reconstruct Medical Data." He was expressly notified that he needed to complete this form in as much detail as possible in order for his claim to be processed. The claims file reflects that the veteran did not submit the requested form, and VA was therefore unable to make further records requests on his behalf. The Board believes that the heightened duty to assist has been satisfied in this case, as the RO made every records request that was available based on the information of record. The remaining inquiry could not be made without the veteran's cooperation. The veteran was properly notified that his service medical records had been destroyed and of the actions he needed to take in order to attempt to recreate the information contained in these records. He did not comply with VA's instructions. The duty to assist is not always a one-way street; in order for VA to process claims, individuals applying for benefits have a responsibility to cooperate with the agency in the gathering of evidence necessary to establishing entitlement to benefits. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Kowalski v. Nicholson, No. 02-1284 (Jun. 8 2005). Nonetheless, the Board does not believe that the veteran's claim is ultimately prejudiced by the lack of service medical records demonstrating an in-service injury. As will be discussed below, the Board finds that the competent evidence of record demonstrates that, for the purpose of discussion, if the veteran's claimed in-service back injury is conceded, there is still no etiological link between an in-service back injury and the veteran's current disability. In this respect, the absence of these records does not prejudice the veteran since the Board will assume that the veteran injured his back in service and a VA examination was conducted. Therefore, the Board believes that remanding the veteran's claim in order to request records that will merely confirm what has already been conceded will produce unreasonable delay and will confer no additional benefit upon the veteran. Such remands are to be avoided. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of this appeal based on the evidence that is currently of record. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(a), (d); 38 C.F.R. § 3.159(c), (d). The claims file contains all available evidence that pertinent to the claim, including VA medical records, private medical records, Social Security Administration records, and a May 2005 VA examination report. While the veteran's representative has requested another examination in light of additional medical evidence that has been added to the record, the Board does not believe another examination is necessary. These added records are not contemporaneous records of in-service treatment but are merely the veteran's subsequent descriptions of his medical history when seeking treatment for his current back disability. Moreover, there also does not appear to be any specific information in these records that the veteran did not tell the VA examiner in May 2005. The Board does not believe that there is any reason to remand this claim in order to schedule another examination or obtain another opinion. Therefore, the duties to notify and assist having been met, the Board turns to the analysis of the veteran's claim on the merits. Analysis In general, service connection is warranted on a direct basis where the evidence of record establishes 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 by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Further, if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after service when all of the evidence establishes that the disease was incurred in service. Id. To prevail on the issue of direct service connection there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). For certain chronic disorders, such as arthritis, service connection may be granted on a presumptive basis if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 , 3.309. With respect to the question of whether the veteran has a current back disability, a March 1999 radiology report notes minimal degenerative hypertrophic osteophytic bone spurring and includes an impression of minimal lumbar spondylosis. A June 1999 spectral bone scan finds moderate to marked degenerative changes in the lumbar spine as well as the right sacroiliac joint with no direct evidence of fracture. The May 2005 VA examination report finds lumbar scoliosis. Various medical records also diagnose rheumatoid arthritis with breakthrough low back pain. In providing competent medical evidence of current disability, this evidence satisfies the first requirement of the veteran's direct service connection claim. As discussed above, the veteran's service medical records were likely destroyed in a fire and are unavailable for VA review. The veteran has repeatedly stated that he injured his back at Camp Page while serving in Korea around 1958 and that he was sent to Ascom City Hospital for about 10 days. Significantly, a March 1993 private medical record notes that the veteran fell down a mountain side while in the USA (presumably, the "United States Army") resulting in a bad low back strain which occasionally flares up again. He was told at the time that there was no fracture or dislocation. The Board specifically notes that these statements were made in connection with the veteran's claim for Social Security Disability benefits and that he had no incentive to falsely report having injured his back while in the military. An August 1999 VA medical treatment record notes that the veteran reported a remote history of falling down some steps in the military and injuring his back. The record states that the veteran sought treatment but never filed a service connection claim. The Board considers the veteran competent to give evidence about matters of which he has personal knowledge; for example, he is competent to report that he injured himself during service or that he experienced certain symptoms. See Falzone v. Brown, 8 Vet. App. 398, 405-406 (1995) Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the veteran is competent to testify that he fell and injured his back during service. The Board also considers the veteran's evidence credible, as it was first recorded more than eleven years before the veteran filed for service connection and was not offered in situations in which it was to his benefit to claim he had been injured in the military. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In recognition of the Board's heightened duty to consider the benefit of the doubt in this claim, the Board believes that the veteran's lay testimony is sufficient to establish that he injured his back during service. The Board will next determine whether the competent evidence of record establishes that there is a connection between the veteran's in-service injury and his current disability. To this end, the Board notes that where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, while the Board was able to accept the veteran's lay testimony that he fell and injured his back during service as competent evidence of an in-service injury, it cannot accept the veteran's lay opinion that his current back disability is related to the in-service injury as competent medical nexus evidence. Upon review of the claims file, the Board notes that the May 2005 VA examination report is the only professional medical etiology opinion of record. This report is quite detailed, including a review of the veteran's claims file and a discussion of the examination findings and pertinent medical history. Even though the veteran's service medical records were not available, the examiner was able to form an opinion based on the veteran's statements regarding his medical history and on the results of a thorough physical examination and review of x-rays. The veteran reported being hospitalized for approximately seven days after slipping down a hillside in Korea. He was told that he had a "twisting" of his L5 lumber vertebra. He was later sent back to his unit once the pain subsided and he was able to perform his duties. The veteran claimed he never fully recovered; nevertheless, he performed his duties until the end of his service and went on to have a productive career. He reported that he never missed work because of back pain and never sought formal treatment. On examination, the veteran presented as a frail elderly man with obvious rheumatoid changed. Upon standing, he had what appeared to be a right lumbar scoliosis, but he appeared compensated and his shoulders were level. He had somewhat kyphotic posture. There was tenderness to palpation at the lumbosacral junction. There was some paraspinal muscle spasm but no tenderness was noted. The veteran's range of motion was observed to be limited by pain and fatigue. Neurological examination revealed the veteran to be grossly neurologically intact. Gait was visualized to be slow and slightly unsteady, and the veteran walked with a very rigid spinal posture and exaggerated lumbar kyphosis. X-rays were performed and reviewed, and the examiner noted that the veteran appeared to have lumbar scoliosis which appeared to have an idiopathic type of curvature. The examiner stated that no significant degenerative changes were noted, suggesting degenerative scoliosis. The examiner also noted that there was no evidence of previous trauma to suggest post-traumatic scoliosis. On oblique radiograph, there did not appear to be significant foraminal stenosis, and the overall disc height was maintained with the exception of the L4-5 and the L5-S1 disc spaces. There did not appear to be any significant anterior retrolisthesis of these vertebrae, but there did appear to be a slight sagittal as well as coronal plane deformity, primarily at L5. While the examiner found it difficult to sort out how debilitating the veteran's back condition was on the face of his rheumatic condition, he concluded that the veteran's examination and history without question demonstrate that he does have significant disability as a result of his back condition. He also concluded, however, that it was less likely than not that the veteran's current back disability was related to his military service. The VA examiner's impression was that the veteran had chronic back pain with lumbar scoliosis. He noted that the in- service injury described by the veteran as slipping down a hillside could easily have resulted in a traumatic disc herniation or ligamentous injury, but without any documentation of any neurologic deficits or any examination findings suggesting significant ligamentous injury and no formal treatment such as bracing or permanent medical profile, the examiner was unable to say what the significance of the in-service injury was. He did, however, ultimately conclude that this injury was less likely than not related to service. The examiner noted that the fact that the veteran was told that his lumbar 5 vertebra was "twisted" at the time of the 1959 injury suggested that his scoliosis pattern was recognized by the doctors who treated the veteran during service, implying that the veteran's back condition was an idiopathic type of curving in general. The fact that no treatment was initiated in service also suggested to the examiner that the veteran's scoliosis was thought to be an idiopathic curve at the time. The examiner suspected that a more aggressive treatment would have been initiated if the in-service injury had been traumatic scoliosis. The examiner also stated that the natural history of idiopathic scoliosis is to likely progress to degenerative disc changes leading to possible chronic low back pain. The Board considers this portion of the opinion, finding that the veteran's back condition was not related to service, to be highly probative to the issue at hand, as it was offered by a medical expert with the proper expertise, education, and training to examine the veteran and render the requested opinion. See Espiritu, supra. Even though the veteran's service medical records were not themselves available for review, the examiner was nonetheless able to draw a conclusion that could be thoroughly explained and justified based on the evidence that is of record. In particular, it appears that the examiner was able to infer from his own findings, including a grossly normal neurologic examination and a lack of significant degenerative changes on x-rays, that the veteran's scoliosis was idiopathic rather than traumatic. Thus, while the examiner's opinion partly relies on the veteran's own description of what he was told by doctors during his course of treatment, it is also based on current, objective findings that are consistent with idiopathic, but not traumatic, scoliosis. The Board also considered the portion of the examiner's opinion allowing for "the possibility that the injury precipitated the natural course of events and/or accelerated the [veteran's] condition" as suggesting possible entitlement to service connection based on aggravation. This aspect of the opinion, however, is too speculative and is therefore not sufficient to justify a finding that the veteran's in-service fall aggravated his scoliosis, as it indicates a mere possibility rather than any probability. See Bostain v. West, 11 Vet. App. 124, 127- 28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of 'may' also implies 'may or may not' and is too speculative to establish medical nexus); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as 'could have been' is not probative). Therefore, based on the competent medical opinion finding a link between the veteran's in-service back injury and his current back disability, direct service connection must be denied. With respect to the question of presumptive service connection, the Board notes that a preponderance of the evidence discussed above finds any degenerative changes to the veteran's lumbar spine to be minimal. Furthermore, the veteran has neither alleged nor informed the VA of the existence of post-service medical evidence demonstrating that he actually had arthritis within one year of his separation from service. Instead, the evidence suggests that the veteran did not suffer a fracture or disc injury as a result of his in-service fall and that, while he may have experienced occasional flare-ups of back pain that may or may not have been related to his in-service injury, he was not diagnosed with arthritis of the low back in service or within one year of separation. Therefore, entitlement to presumptive service connection for arthritis of the low back must be denied. The evidence in this case is not so evenly balanced so as to allow this claim through application of the benefit-of-the- doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102. The preponderance of the evidence is against the veteran's claim, and it must be denied. ORDER Entitlement to service connection for residuals of a back injury is denied. ____________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs