Citation Nr: 0811191 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-22 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for coronary artery disease. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. Kessel, Associate Counsel INTRODUCTION The veteran had active military service from August 1971 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In August 2007, the veteran filed informal claims of service connection for hearing loss, tinnitus, and diabetes. The RO acknowledged the claims by issuing a notice letter in October 2007. As these issues have not been developed for appellate review, they are referred to the agency of original jurisdiction for appropriate further action. REMAND Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). In addition, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). The veteran contends that he has a disability manifested by low back pain that is the result of injuries that occurred during active military service. Specifically, the veteran asserts that he hurt his back lifting eighty-pound chain bags while serving aboard the USS Oriskany. He states that he had to lift the bags daily over the period of several months. The veteran maintains that his current back pain is related to those in-service back injuries. Thus, he believes that service connection is warranted. A review of the veteran's service medical and personnel records is negative for references to the veteran's alleged back injuries. There are also no documented complaints of, or treatment for, low back pain or a low back disability. The July 1975 separation examination was normal regarding the spine. Despite the absence of direct evidence of the in-service injuries in the records, the veteran is competent to report factual matters of which he had first hand knowledge, such as the lifting of heavy bags. See Washington v. Nicholson, 19 Vet. App. 362 (2005). Moreover, the veteran can attest to symptoms that are capable of lay observation, such as back pain. See, e.g., Savage v. Gober, 10 Vet. App. 488, 495 (1997). The veteran's recollection of the in-service back injuries is supported by a June 2005 statement from B.T., a fellow service member who stated that he was also aboard the USS Oriskany. B.T. stated that all plane captains, such as the veteran, routinely carried eighty-pound chain bags on their backs, which he believed caused damaged to their backs. Neither the veteran, nor B.T., is competent to provide a probative opinion on a medical matter such as the relationship between any current back pain and carrying eighty-pound chain bags in the past. See Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992)). However, based on their statements, the Board finds it likely that the veteran carried eighty-pound chain bags and experienced back pain while performing those duties. The veteran states that he received treatment for back pain at the VA Medical Center (VAMC) in Oklahoma City, Oklahoma, in October 1975. Post-service medical records do not contain such documentation, but they do reveal that the veteran has sought intermittent treatment for various medical conditions through the Oklahoma City VAMC since July 1980. Since approximately 1999, the veteran has received regular treatment at the facility. The records indicate that the veteran was first prescribed pain medication for arthritis in June 1999, but the joints involved were not evident. In June 2001, the veteran first complained of low back pain. A June 2001 x-ray report showed degenerative disc disease at L4. In February 2002, the veteran was seen for low back pain after he experienced a fall over a tree limb. X-rays at that time reflected degenerative disc disease and facet joint arthropathy at L4-5 and L5-S1. The records document continued treatment for low back pain subsequent to 2002. Thus, current low back disability is shown by the competent medical evidence. 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 insufficient competent medical evidence on file for the VA to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The United States Court of Appeals for Veterans Claims (Court) has held that the third element sets a low threshold when assessing the need for a medical examination. When an in-service injury and a current disability have been established, the evidence need only "indicate" that there "may" be a nexus between the two for an examination to be warranted. McLendon, 20 Vet. App. at 83. In the veteran's case, he has submitted statements that he has experienced low back pain ever since military service. To the same effect, the veteran also submitted statements from his mother and sister indicating a long history of back pain. Given this indication that there may be a nexus between the veteran's current symptom of low back pain and his military service, the Board finds that an examination is warranted. Accordingly, the veteran should be scheduled for a VA examination in order to determine the nature and etiology of any identified low back disability, such as arthritis and degenerative disc disease of the lumbar spine. A medical opinion should also be requested to determine whether the veteran has a low back disability that is related to his active military service, including the carrying of eighty- pound chain bags. The Board finds that a remand is also necessary for further development of the claims of service connection for hypertension and coronary artery disease. A review of the claims file reveals that the veteran was never provided adequate notice of the information and evidence needed to substantiate the claims. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In October 2003, the veteran was sent a VCAA letter by which notification was provided regarding a claim of service connection on a direct basis. However, in addition to service connection on a direct basis, the veteran primarily contends that service connection is warranted for hypertension and coronary artery disease on a secondary basis. Under 38 C.F.R. § 3.310, service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The veteran asserts that he has hypertension as the result of post-traumatic stress disorder (PTSD). The veteran also asserts that he has coronary artery disease as the result of either PTSD or hypertension. Because the veteran was not properly notified of how to substantiate a secondary service connection claim, a remand is necessary for issuance of a corrective VCAA letter. The RO primarily denied the veteran's secondary service connection claims in the first instance because, at that time, the veteran had not been awarded service connection for any disability. Under that rationale, he was appropriately not afforded a medical examination in connection with the two claims. However, the Board notes that the veteran was awarded service connection for PTSD, which occurred in July 2007, during the pendency of the appeal. On remand, because the veteran is now service connected for PTSD, he should be scheduled for a VA examination in order to determine whether he has hypertension or coronary artery disease that was caused, or made worse, by his service- connected PTSD. It appears that the veteran continues to receive regular treatment at the Oklahoma City VAMC. Updated treatment records should be obtained in light of the remand. Accordingly, this case is REMANDED for the following actions: 1. Send a new VCAA notice letter to the veteran. The letter should notify the veteran of the information and evidence necessary to substantiate claims of service connection for hypertension, coronary artery disease, and a low back disability. Notice regarding secondary service connection must be included. The veteran must be told to provide any evidence in his possession that pertains to his claims. The letter should also contain notice of the manner in which both disability ratings and effective dates are assigned for awards of disability benefits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran and his representative should be given a reasonable opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 2. Obtain the veteran's VA treatment records prepared since September 2007 and associate the records with the claims folder. 3. Schedule the veteran for an orthopedic examination and an examination with a physician who is qualified to address questions relative to the relationship between cardiac disabilities and psychiatric disorders. The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, the examiners designated to examine the veteran. All appropriate tests and studies should be performed and all clinical findings should be reported in detail. The examiners must provide the complete rationale for any conclusions reached-to include, as appropriate, citation to specific evidence of record and/or medical authority. The examiner who is addressing the orthopedic issue should determine the current diagnosis of any disability manifested by low back pain. The diagnoses of arthritis and degenerative should be confirmed. Based on a thorough review of the evidence of record, the examiner should provide an opinion as whether it is at least as likely as not (probability of 50 percent or greater) that the veteran has a current low back disability that is related to his period of military service, particularly his stated in-service back injury (carrying eighty-pound chain bags). The examiner should also indicate whether any such disability is more likely than not of post-service onset. The second examiner should determine the current diagnoses of all cardiac disabilities and confirm that the veteran has hypertension and coronary artery disease. Based on a thorough review of the evidence of record, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (probability of 50 percent or greater) that any cardiac disability was caused or aggravated by his PTSD. If it is determined that aggravation beyond the natural progress of disorders exists, the examiner should be asked to identify the baseline level of severity of the symptoms prior to aggravation and the level of severity of symptoms due to service connected aggravation. If no such relationship between the veteran's cardiac disability and PTSD is found, the examiner should opine as to whether any current cardiac disability is related to military service or any event that occurred therein. After the requested examinations have been completed, the reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. If a report is deficient in any manner, it should be returned to the examiner. (The veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim. See 38 C.F.R. § 3.655 (2007).) 4. After undertaking any other development deemed appropriate, re- adjudicate the issues on appeal. Consider secondary service connection with respect to the hypertension and coronary artery disease claims. If any benefit sought is not granted, furnish the veteran and his representative with a (SSOC) and afford them an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by VA. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2007).