Citation Nr: 0814316 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 03-10 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES Entitlement to service connection for residuals of low back, upper back and neck injuries. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Osborne, Counsel INTRODUCTION The veteran served on active duty from April 1974 to July 1977. This matter was most recently before the Board of Veterans' Appeals (Board) in August 2004, at which time the issues of the veteran's entitlement to service connection for residuals of a back injury and a psychiatric disorder were remanded to the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, through the VA's Appeals Management Center (AMC) in Washington, DC. The purpose of such remand was to accomplish certain procedural and evidentiary development. While the case remained in remand status, the AMC's Resource Center in Cleveland, Ohio, by its rating decision of February 2006, granted entitlement to service connection for post- traumatic stress disorder and assigned a 30 percent evaluation therefor, effective from December 11, 2002. Such action effectively terminates the veteran's pending appeal for service connection for a psychiatric disorder. It is noted that a separate and distinct appeal as to the initial rating assigned for post-traumatic stress disorder was initiated by the veteran in April 2006, when he submitted a notice of disagreement with the initial rating of 30 percent assigned in February 2006. In December 2006, the RO increased the rating for the veteran's PTSD to 70 percent, effective December 11, 2002 or the date of receipt of the original claim for service connection, and issued a statement of the case on the matter. The veteran did not perfect an appeal for a higher initial or staged rating for his PTSD by submitting a substantive appeal. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely notice of disagreement to a rating decision denying the benefit sought, and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2007); Roy v. Brown, 5 Vet. App. 554 (1993). (Emphasis added.) Accordingly, the Board does not have jurisdiction over this latter issue. Notice is taken that the veteran was afforded a video conference hearing before the Board in February 2004, a transcript of which is of record. The Board employee who conducted such hearing has since retired, and the veteran was advised of this fact by the Board in its June 2006 letter to him, wherein he was further informed of his right to appear for another hearing either before RO or Board personnel. It was also indicated to him that if he failed to respond within a 30-day period, it would be assumed that no further hearing was desired. No response was received from the veteran with respect to the Board's correspondence of June 2006. Hence, the veteran's hearing request is deemed withdrawn and the Board herein proceeds to address the merits of the certified issue. The Board denied the veteran's claim for service connection for residuals of a back injury by an October 24, 2006 decision. However, additional relevant evidence was received by the RO just days prior to the issuance of that Board decision. Such evidence was accompanied by a waiver of RO review signed by the veteran. An appellate decision may be vacated by the Board at any time upon the request of the appellant or his representative, or on the Board's own motion, when there has been a denial of due process. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2007). In view of the foregoing, the Board must vacate its October 24, 2006 decision denying service connection for residuals of a back injury. A new decision is rendered below that reflects consideration of the additional evidence in question and this decision will be entered as if the October 24, 2006 Board decision had never been issued. Id. In reviewing the procedural history of this case, to include the veteran's original claim for service connection, the RO decision that was appealed, the statement and supplemental statements of the Case issued, and the veteran's notice of disagreement and substantive appeal, the veteran's claim for service connection for "residuals of a back injury" involve his lumbosacral (low back), thoracic (upper back) and cervical (neck) segments of the spine. Hence, the issue is as styled on the first page of this decision. The issues of entitlement to service connection for residuals of injuries to the upper back and neck are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT It is at least as likely as not that the veteran's current low back disability is due to in-service trauma. CONCLUSION OF LAW Residuals of a low back injury were incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of these claims. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with a claim. Inasmuch as the benefit sought by this appeal is granted to the extent indicated below, and the remaining issues on appeal are addressed in the remand appended to this decision, discussion of the VA's attempts to comply with the VCAA, its implementing regulations, and body of jurisprudence interpretive thereof, is obviated with respect to the claim addressed herein. Merits of the Claim for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a veteran served 90 days or more during a period of war, or during peacetime after December 31, 1946, and a chronic disease, such as arthritis, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection requires medical evidence of a current disability; medical, or in some cases, lay evidence of the in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in- service disease or injury and the current disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In oral and written testimony offered by the veteran, including that set forth at the time of a video conference hearing before the Board in February 2004, it was indicated that he sustained significant injuries to his back in December 1974 when his car was hit broadside by a train at an unmarked railroad crossing and totally demolished. He further described his involvement in subsequent motor vehicle accidents, including two in which he was rear-ended. Service medical records identify a single injury to the veteran's back. The injury occurred in late December 1974, when the automobile he was driving was struck by a train. Examination at that time showed multiple soft tissue injuries and abrasions, as well as a muscle strain of the low back. No further complaints or findings with respect to any residuals of such injury or other back disability are demonstrated in the veteran's service medical records, including those compiled during reserve duty subsequent to his release from active service. After service, evidence of arthritis of the spine is not shown during the one-year period immediately following the veteran's discharge from service or for many years thereafter. Beginning in or about 1986, complaints of neck pain are initially documented (the neck or cervical spine is not at issue) and in 1990, or approximately 13 years after service, the veteran is shown to have sought medical assistance due to lumbar spine problems. In November 1990, he set forth a four to five-year history of neck cricks to a physical therapist. He was treated in December 1991 for a lumbosacral contusion following a fall while skiing. Diagnostic testing in August 1996 identified findings consistent with degenerative disc disease at C5-6 and C-6, secondary to C4-6 and C5-6 spondylosis with central C4-5 disc herniation, and disc bulges with associated osteophyte formation and resulting left neural foraminal narrowing. A period of private hospitalization followed in November 1996 for a cervical discectomy for cervical radiculopathy and the admitting history was to the effect that his cervical spine and upper extremity complaints had begun in August 1996 in connection with a lifting injury and near fall. When evaluated by a private neurologist in July 2001, the veteran reported that, in 1976, the vehicle in which he was traveling was struck by a train in which he sustained a whiplash injury. Also noted was the veteran's involvement in several motor vehicle accidents since that time, the last of which occurred in 1985; all were noted to entail whiplash injuries. Since the 1976 accident, the veteran indicated that he was experiencing frequent tightening and spasm of the neck. A ten-day history of right arm pain and other symptoms was also set forth; the formulation was of right forearm pain with hypesthesia in the C-5 and C-6 distribution and a question of brachial plexus irritation versus C-5, C-6 lesion. Further diagnostic testing disclosed a large herniated disc at C5-6 and C4-5. During a neurosurgical consultation that followed, prior to further cervical spine surgery in November 2002, it was noted by a clinician that the veteran's history of spinal problems dated to 1995. Of record are lay statements submitted by the veteran's mother and ex-wife. Therein, it was noted by both lay affiants that the veteran had sustained injuries to his upper and lower back in an in-service car accident and that he had complained of back symptoms subsequent thereto. In order to better assess the relationship between the veteran's in-service back injury and current back disablement, the Board by its August 2004 remand requested that a VA orthopedic examination be afforded the veteran. Such evaluation was undertaken in October 2004 without the benefit of the veteran's claims file. Without the claims folder, the examiner concluded that it was at least as likely as not that the veteran's disc disease of the cervical spine and lumbosacral strain were related to his military service. Such examiner was thereafter provided with the veteran's claims file, and upon its review, she set forth in an October 2005 addendum to her earlier report that, despite an in- service low back muscle strain, no documentation of an ongoing back disability was found following the acute in- service event. In the opinion of that VA physician, the veteran's chronic lumbar and radicular symptoms originated much later, and, as such, it was concluded that the veteran's low back pain was not at least as likely as not to be related to his military service. The veteran underwent a VA examination of his back in October 2007. Following a thorough orthopedic evaluation, the physician concluded that it is at least as likely as not that the veteran's low back disability is linked to in-service trauma. The claims file was available and reviewed by the physician who proffered this opinion. There is no question that the veteran sustained a back injury in a motor vehicle accident while on active duty. Competent evidence linking such injury to the veteran's current back disability is conflicting. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998). In so doing, the Board may accept one medical opinion and reject others. Id. At the same time, the Board cannot make its own independent medical determinations, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Thus, the Board must determine the weight to be accorded the various items of evidence in this case based on the quality of the evidence and not necessarily on its quantity or source. The Board accords equal weight to the two conflicting opinions noted above. Both opinions were based upon a review of the record and supported by a rationale. Accordingly, and with application of the doctrine of reasonable doubt, the Board finds that service connection for residuals of a low back injury is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303; Hickson, supra. See also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001) regarding the application of the doctrine of reasonable doubt. ORDER Service connection for residuals of a low back injury is granted. REMAND As noted in the introduction to the above decision, the claims in appellate status include service connection for residuals of injuries to the upper back (thoracic spine) and neck (cervical spine). The physician who conducted the October 2007 VA examination addressed the question of whether the veteran's low back disability was related to in-service trauma but he did not address the questions of whether the veteran's upper back and neck disabilities are due to his injuries sustained while on active duty. Accordingly, the Board finds that the case must be returned to this physician to address these questions. Accordingly, the case is REMANDED to the RO via the AMC in Washington, DC., for the following action: 1. Please send the veteran a VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) specific to the claims for service connection for residuals of injuries to his upper back (thoracic spine) and neck (cervical spine). Specifically, the letter should: (a) inform the appellant about the information and evidence not of record that is necessary to substantiate the claims; (b) inform the appellant about the information and evidence that VA will seek to provide; (c) inform the appellant about the information and evidence the appellant is expected to provide; and (d) request that the appellant provide any evidence in the appellant's possession that pertains to the claims. 2. Return the claims file to the physician who performed the October 2007 VA examination of the veteran, Carmo Trinidade, M.D. Following a review of the relevant medical and radiological evidence of record, the physician is asked to address the following questions: a.) Is it at least as likely as not that the veteran's upper back or thoracic spine disability is due to the injuries he sustained during service? b.) Is it at least as likely as not that the veteran's neck or cervical spine disability is due to the injuries he sustained during service? The physician is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship; less likely weighs against the claim. The physician is requested to provide a rationale for any opinion provided. If the clinician is unable to answer any question presented without resort to speculation, he should so indicate. 3. Thereafter, the RO/AMC should review the claims file, paying particular attention to whether Dr. Trinidade has answered the questions presented by the Board. If any development is incomplete, or if the addendum does not contain sufficient information, the RO/AMC should take corrective action before readjudication. 38 C.F.R. § 4.2 (2005). 4. The RO/AMC should readjudicate the claims for entitlement to service connection for residuals of injuries to the upper back (thoracic spine) and neck (cervical spine). If any benefit sought remains denied, the RO/AMC should prepare an SSOC and send it to the veteran and his representative. An appropriate period of time to respond should also be provided. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals