Citation Nr: 1002003 Decision Date: 01/12/10 Archive Date: 01/22/10 DOCKET NO. 05-31 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for grade III spondylolysis, lumbosacral spine status post fusion L4-S1, with internal fixation and bone graft (a low back disorder). 2. Entitlement to service connection for a psychiatric disorder, to specifically include anxiety disorder and depression. Additional claims on appeal consisting of entitlement to ratings in excess of 10 percent for residuals of a right inguinal hernia and for residuals status post right ilioinguinal nerve stimulator implantation, will be addressed in a separately issued Board decision. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from March 1999 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May and August 2008 rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran provided testimony at a travel board hearing held before the undersigned Acting Veterans Law Judge at the RO in August 20009. A transcript of that hearing is of record. The Board notes that the Veteran also provided testimony at a prior travel Board hearing held in February 2009, before a different Veterans Law Judge; a transcript of that hearing is of record. At that hearing, the Veteran addressed two increased rating claims also on appeal. The law requires the VLJ who conducted the hearing to participate in the decision on appeal. 38 C.F.R. § 20.707 (2009). Accordingly, a separate Board decision will be issued by the VLJ who conducted the February 2009 hearing, addressing the claims on appeal consisting of entitlement to ratings in excess of 10 percent for residuals of a right inguinal hernia and for residuals status post right ilioinguinal nerve stimulator implantation. A review of the file reflects that the Veteran has raised several additional claims, as detailed in a duty to assist letter issued in June 2009. These claims are not in appellate status before the Board and are referred to the RO for action and adjudication, as appropriate. The issue of entitlement to service connection for a psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A currently manifested low back disorder has been etiologically linked by competent medical evidence to the Veteran's period of active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a low back disorder are met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements) Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the Veteran with notice of what evidence not previously provided will help substantiate the claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A VCAA notice letter was sent to the Veteran regarding his service connection claim in July 2008. This letter appears to have satisfied the requirements of the VCAA. The Board also notes that the July 2008 letter provided the Veteran with notice as required by the United States Court of Appeals for Veterans Claims in Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board need not, however, discuss in further detail the sufficiency of the letter or VA's development of the claim in light of the fact that the Board is granting the service connection claim for a low back disorder. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefits sought on appeal. Factual Background The Veteran filed a service connection claim for a low back disorder in April 2007. The Veteran's service treatment records (STRs) do not reflect that any abnormality of the spine was identified upon enlistment examination of October 1998 and are negative for documentation of a low back injury or for complaints, treatment or a diagnosis of a low back disorder. He was treated for right inguinal hernia during service. The December 2003 separation examination report revealed that clinical evaluation of the musculoskeletal system and spine were normal and the Veteran denied having any arthritis of recurrent back pain or problems. On VA examination conducted in February 2004, the Veteran had no complaints relating to the low back and no clinical findings in this regard were made. Private medical records reflect that the Veteran was seen in April 2006 with complaints of low back pain, providing a several year history of this problem. Similarly, a VA record dated in December 2006 notes a 3 to 4 year history of back pain. VA records reflect that MRI studies of the lumbar spine were undertaken in September 2006 which revealed bilateral L5 spondylolysis and grade 2-3 L5-S1 anterolisthesis with resultant severe L5-S1 central canal stenosis and bilateral neural foramen narrowing. A December 2006 entry indicated that plain films and CT scans of the lumbar spine showed a grade III spondylolisthesis at L5-S1 and the Veteran was advised about L4 through S1 fusion. The entry indicated that the Veteran would be scheduled for surgery as soon as possible. Upon private evaluation conducted in April 2007, the diagnoses included radiculitis, intervertebral disc syndrome without myelopathy and myofascitis. VA records reflect that in May 2007 the Veteran underwent L4 through S1 fusion to treat spina bifida occulta and grade 3 anterolisthesis, L5 over S1. The file contains lay statements from the Veteran's wife, a former military co-worker and a military supervisor, all attesting to the fact that the Veteran had been complaining of and experiencing back problems since about 2001/2002. On file is a medical report dated in June 2007 from a VA doctor (chief of neurosurgery). She indicated that the Veteran had a long history of chronic low back pain that worsened during military service and noted that his duties as a military policeman included lifting a 120 pound shield and carrying roadblocks weighing 105-150 pounds, in addition to requiring regular training. She indicated that the constant lifting requirements resulted in the development of a right inguinal hernia, which required surgical repair in 2002 and indicated that he had recently undergone a surgical correction from L4 through S1 spinal fusion. The doctor characterized the current diagnosis as chronic low back pain secondary to grade III spondylolisthesis and observed that repetitive physical activity leads to a worsening of the slip of the lumbar spine and to increased chronic low back pain. She opined that a pre-existing disorder was likely aggravated during active duty. A VA examination of the spine was conducted in October 2007 and the claims folder was reviewed. The Veteran reported that he initially experienced low back pain and other symptoms in 2002. A diagnosis of status post fusion L4-S1 for grade 3 spondylolysis of the lumbosacral spine with internal fixation and bone grafting and residual radicular symptoms. The examiner explained that grade 3 spondylolysis of the lumbosacral spine was a congenital-type condition, which existed prior to service; further explaining that there was no evidence that this condition was aggravated by military service, in light of STRs which were negative for any low back problems. The examiner concluded that it was less likely than not that the low back disorder was caused by or the result of military service. The file contains a May 2008 statement from a VA doctor in the neurosurgical unit, indicating that he last saw the Veteran in February 2008 due to back, groin and leg pain. The doctor documented that the Veteran reported that his training exercises included carrying a 70 pound shield on a weekly basis. The doctor indicated that as a result of carrying the shield, the Veteran developed an inguinal hernia and subsequently chronic back and leg pain. The doctor opined that it was highly likely that the same activity which caused the inguinal hernia (carrying the 70 pound shield) also caused direct and permanent damage to the lumbar spine. The Veteran presented testimony at a travel Board hearing held in August 2009. He reported experiencing low back pain in service from 2000 to 2004, which went unreported so the Veteran could pursue a career in law enforcement. Analysis The Veteran primarily maintains that service connection is warranted for a low back disorder, claimed as attributable to the duties associated with being a military police officer during service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2009). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from 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 C.F.R. § 3.307(a)(1). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b) (2009). A veteran who served during a period of war is presumed to be in sound condition when he entered into military service except for conditions noted on entrance medical examination. 38 U.S.C.A. §§ 1111, 1132 (West 2002). Where there is "clear and unmistakable" evidence that the injury or disease claimed pre-existed service, the presumption does not attach, and the issue becomes whether the disease or injury was aggravated during service. Id. The law further provides that the burden to rebut the presumption and show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 117, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3- 03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The Board must follow the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c) (West 2002). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2009). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 C.F.R. § 3.102 (West 2002). In order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Status post fusion L4-S1 for grade 3 spondylolysis of the lumbar spine with internal fixation and bone graft, with radicular symptoms was specifically diagnosed upon VA examination conducted in 2007. As a currently manifested low back disorder is clearly shown, Hickson element (1) is satisfied. The initial inquiry in this case is whether the Veteran had a low back disorder which existed prior to service. A veteran will be presumed to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1132 (West 2002 & Supp. 2009); 38 C.F.R. § 3.304 (2009). Under Wagner and VAOPGCPREC 3-03, VA has the burden to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability pre-existed service. At entry into active duty, in October 1998, the Veteran had a physical examination which included a normal finding of the spine and no notation on his induction examination report that noted a past, present or pre-existing low back disorder. As such, the presumption of soundness attaches and the Board will inquire whether clear and unmistakable evidence exists to rebut such a finding. As noted in a recent decision of the U.S. Court of Appeals for the Federal Circuit, Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004), when, as in this case, no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under § 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. However, presumption of soundness is not rebutted by clear and unmistakable evidence in this case. The evidence on file includes a VA medical statement (June 2007) and a VA examination report (October 2007), both of which described the Veteran's low back disorder, as "pre-existing." However, also on file is a May 2008 statement from a VA doctor which included no such finding and in no way described the Veteran's low back condition as pre-existing. As previously mentioned no pre-existing low back disorder was noted on the enlistment examination report or anywhere in the STRs. In light of this conflicting evidence, the Board cannot conclude that clear and unmistakable evidence establishes a pre-existing low back disability; therefore, the Veteran is presumed to have entered service in sound condition. 38 U.S.C.A. § 1132; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Having found that the Veteran was in sound physical condition at the time he entered service, the Board's inquiry must then ascertain whether the Veteran incurred a low back disorder as a result of any incident of such service. Technically, there was no evidence in the STRs of any low back pathology during service, although his credible testimony includes reference to back symptoms experienced during service. A veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). While the Veteran's back problems did not materialize during the first post-service year; they were clearly documented even prior to the end of the second post-service year. The file contains two medical opinions in favor of the claim. Both the June 2007 and May 2008 statements from VA medical specialists, who have been treating the Veteran, stand for the proposition that the Veteran's currently manifested low back disability is etiologically linked to service-related activities, such as heavy lifting associated with his duties as a military policeman. In contrast, the file contains one negative opinion provided by a VA examiner in October 2007. The examiner explained that grade 3 spondylolysis of the lumbosacral spine was a congenital-type condition, which existed prior to service; further explaining that there was no evidence that this condition was aggravated by military service, in light of STRs which were negative for any low back problems. The examiner concluded that it was less likely than not that the low back disorder was caused by or the result of military service. The RO has previously denied the claim, essentially assigning less probative weight to the favorable VA medical opinions of 2007 and 2008, explaining that there was no indication that the doctors providing the opinions had the benefit of review of the claims file. However, to the extent that historical information and reports of current manifestations and symptomatology made by the Veteran were relied on in conjunction with issuing and crafting those medical statements/opinions, the Court has held that VA can not reject a medical opinion simply because it is based on a history supplied by the Veteran and that the critical question is whether that history was accurate. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran). In this case, there is no indication that the history and symptoms reported by the Veteran as recorded in those medical statements are in any way incredible, inaccurate or incomplete, or that the opinions provided by the VA doctors would have been enhanced in any way with the benefit of the review of the claims folder. Moreover, the opinions were provided by the Veteran's VA treating doctors. As such, the Board believes that the opinions represent the most probative evidence on file regarding the matter of service incurrence. Essentially, all of the elements as discussed in the Hickson case have been established. The Board could remand this case for another opinion that reconciles all of the medical information and opinions on file; however, the record as it stands implicates the Veteran's service-related duties as the etiological root of his low back problems. Therefore, the Board concludes that remand is not necessary here. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose.) Resolving any benefit of the doubt in favor of the Veteran, the Board concludes that service connection for a low back disorder is warranted. Accordingly, the claim is granted. ORDER Service connection for a low back disorder is granted. REMAND With respect to the service connection claim for a psychiatric disorder, it is the Board's belief that further development is required. The Veteran's service treatment records are negative for any diagnosed psychiatric disorder. However, the December 2003 separation examination report does reflect that the Veteran acknowledged having nervous trouble, further described as occasional anxiety attacks. Post-service records disclose that conditions including: major mood disorder, PTSD and depressive disorder have been diagnosed. However, the record currently contains no medical opinion addressing the relationship between any currently diagnosed psychiatric disorder and service. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009). For the reasons explained herein, additional information is required in this case so that the Board can render a fully informed appellate decision addressing all of the Veteran's theories of entitlement. Therefore, a medical opinion will be sought in this case addressing the viable theories of entitlement (essentially, direct and secondary service connection) raised in this case. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see also 38 C.F.R. § 3.159(c)(4) (an examination or opinion is necessary if the evidence of record does not contain sufficient medical evidence to make a decision on the claim). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an opportunity to submit or identify any additional evidence relevant to his service connection claim for a psychiatric disorder. 2. The Veteran should be afforded VA psychiatric examination. The Veteran's claims files should be made available to, and reviewed by, the examiner, to including evidence obtained on Remand. The examiner should review the service treatment records, post-service medical records, and relevant evidence of record, including any evidence obtained during the course of this Remand. Any necessary diagnostic testing should be conducted. Then, the examiner should provide the following information: a) Assign a diagnosis for each current psychiatric disorder and describe the manifestations of each diagnosed disorder; b) For each diagnosed psychiatric disorder, state whether it is at least as likely as not (a 50 percent, or greater, likelihood), or, is less than likely, or, is unlikely, that the disorder was incurred during or first manifested during the Veteran's active service extending from March 1999 to July 2004 or during the first-post service year; in this regard the examiner should address the more general question of whether it is at least as likely as not that any currently manifested psychiatric disorder is etiologically related to the Veteran's period of active service; c) The provider is also asked to address the question of whether it is at least as likely as not that any currently manifested psychiatric disorder is causally related to or is aggravated by any service connected disorder - if a service-connected disability aggravates (i.e., permanently worsens) the psychiatric disorder, the examiner should identify the percentage of disability which is attributable to the aggravation. The medical basis for all opinions expressed should be discussed for the record. It would be helpful if the examiner, in expressing his or her opinion, would use the language "likely," "unlikely" or "at least as likely as not." The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 3. The RO/AMC is requested to then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim for a psychiatric disorder to include consideration of all viable theories of entitlement to include direct and secondary service connection. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 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. 2009). ______________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs