Citation Nr: 1004579 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 05-00 180A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for postoperative residuals of a diskectomy and fusion, cervical spine. 2. Whether the injuries sustained by the Veteran on May 22, 1974, including a laceration on the right forehead, were not in the line of duty and were the result of the Veteran's own willful misconduct. 3. Entitlement to service connection for a scar on the right forehead. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B.W. Hennings, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to September 1974. This appeal arises from a December 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Pittsburgh, Pennsylvania. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2007. A transcript of the hearing is associated with the claims file. The Board remanded this case in February 2008 for additional evidentiary development. The case has been returned to the Board for further appellate action. The issues of whether the injuries sustained by the Veteran on May 22, 1974, including a laceration on the right forehead, were not in the line of duty and were the result of the Veteran's own willful misconduct and entitlement to service connection for a scar on the right forehead 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. FINDINGS OF FACT The Veteran's postoperative residuals of a diskectomy and fusion, cervical spine is not etiologically related to active service. CONCLUSION OF LAW The Veteran's postoperative residuals of a diskectomy and fusion, cervical spine was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110; 1131 (West 2002); 38 C.F.R. § 3.303 (2009). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). Certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Recitation of Evidence There are no service treatment records reflecting any chronic cervical spine or neck injury or condition in service. Service treatment records from May 1974 show the Veteran was treated for a lacerated upper lip, a lacerated lower left eyelid, a laceration on the right forehead, an abrasion on the right neck, and multiple minor lacerations on the mucosa of the mouth. The examiner reported that the wounds were caused by the Veteran having been involved in an altercation with a shipmate. The injuries were noted to be not in the line of duty and 'due to own misconduct.' Deck logs from May 1974 show the same The Veteran's discharge examination is not of record. The remainder of the Veteran's service treatment records are negative for any complaint, diagnosis or treatment of a cervical spine or neck disability. The Veteran was afforded a VA general medical examination in February 1976. There were no findings pertaining to his cervical spine or neck. The diagnoses were small one (1) inch stab wound scar of the left thigh and post-operative 'knee surgery 1975' with good results. Medical records from Medical College of Virginia dated from September 1976 to July 1979 are associated with the claims folder. The Veteran reported that he had hurt his back, but there was no indication of any neck pain. The date of the back injury was not legible. There were no findings with regard to the Veteran's military service. A July 1995 private treatment record shows notes that it had been two months since he last saw the Veteran for a work related injury to his back, right, elbow, right foot, left knee and right knee. A treatment note in October 1995 by the same examiner notes that the Veteran was seen in follow- up for his neck, back, right shoulder and both knees and was essentially unchanged. The examiner diagnosed the Veteran with cervical strain. Medical records from the Mercy Hospital of Pittsburgh and Jefferson Orthopedic Associates dated from May 1995 to March 1996 show that the Veteran received evaluations and treatment for a cervical spine condition. In March 1996, the Veteran underwent a cervical diskectomy and a bone graft fusion, C5-C6 and C6-C7. Again, there were no references to his military service. A March 1996 operative report for the Veteran's anterior cervical disckectomy and bone graft fusion notes that the Veteran was originally injured in late 1995. A March 1996 discharge report from when the Veteran received his spinal fusion shows that the Veteran reported he was originally injured in November 1994, when he was asleep in a truck and it was struck by a car. The report indicated that the Veteran reported he was thrown around with resultant neck pain. The Veteran also reported he was re-injured in 1995 when he slipped and fell on his buttock and a television landed on him. The Veteran was suffering from persistent pain across his posterior cervical spine. A May 1996 private treatment letter indicated that the Veteran was suffering from chronic back and left leg pain, as well as a chronic cervical spine condition which recently required a two level cervical disc removal. The Veteran was afforded a VA general medical examination in August 1996. He stated that he was shot in the right hip and left thigh in Naples, Italy, by the shore patrol. He admitted that he had been drinking during the incident, and that he had had illegal drugs in his system. He said that he was treated at the Philadelphia Naval Hospital. The Veteran also gave a history of low back pain since leaving the military. He stated that he had repeatedly hurt his low back secondary to normal work strain. Following a physical examination, he was diagnosed as having status post gunshot wound to the right hip and 'right thigh,' status post left knee reconstructive surgery, left knee degenerative joint disease, and a history of low back pain, lumbar strain. There was no discussion of a cervical spine disability, although the Veteran mentioned that his neck continued to hurt. A September 1996 VA psychological examiner noted that the Veteran generally occupied himself moving furniture. The examiner also noted that the Veteran had developed some sort of worker's compensation injury and claim on almost ever job that he had and that he was complaining about pain associated with his cervical spine. The Veteran was afforded a VA orthopedic examination in October 1996. The examiner noted the Veteran's disc surgery and neck pain and back pain. The Veteran also reported that he hurt his back when a heavy load slipped and fell on him while working as a mover. Recent VA treatment records from 2006 to 2007 show the Veteran has a current diagnosis of status post anterior cervical disc surgery with chronic cervical pain. At his December 2007 Board hearing, the Veteran testified that, while in service in February 1974, he was shot in the right hip and right side by shore patrol, which caused him to fall and injure his cervical spine. He testified that it has bothered him ever since. Service connection for postoperative residuals of a diskectomy and fusion, cervical spine In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for postoperative residuals of a diskectomy and fusion, cervical spine. The Board notes that there are no service treatment records reflecting any chronic cervical spine or neck condition. The Veteran was treated for an abrasion on the right neck in service. However, the remainder of the Veteran's service treatment records are negative for any complaint, diagnosis or treatment of a cervical spine or neck disability. Furthermore, the medical evidence of record does not show that the Veteran sought treatment for a cervical spine or neck disability immediately following his period of service or for many years thereafter. The first available treatment records showing a diagnosis or treatment for cervical spine or neck pain are from 1995. This would be over twenty years after discharge from service. Therefore, the Board finds that a chronic cervical spine or neck condition did not manifest in service or within one year thereafter. Specifically in statements and testimony during the course of this appeal, the Veteran contended that he first injured his cervical spine in service and it has bothered him ever since then. Competent lay evidence is evidence provided by a person who has personal knowledge of facts or circumstances and conveys such matters that can be observed and described by a lay person. See Layno v. Brown, 6 Vet. App. 465, 471 (1994). Lay evidence is acceptable to prove symptomatology over a period of time when such symptomatology is within the purview of, or may be readily recognized by lay persons. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). T Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Id.; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). While the Veteran is competent to report matters which a layperson may perceive, the Board finds his account is not credible when evaluated in light of the totality of the record. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (Observing that "[o]nce evidence is determined to be competent, the Board must determine whether such evidence is also credible.") A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380- 81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). The Veteran has testified that he has suffered from his chronic cervical spine condition since service. However, there is an absence of any chronic cervical spine or neck condition noted in service and a gap of 20 years between service and any contemporaneous medical records documenting a cervical spine or neck condition. There is also a March 1996 hospital discharge report where the Veteran attributes his cervical spine condition to a 1994 car accident, aggravated by a 1995 work accident. The March 1996 operative report indicates that the Veteran injured his back in late 1995. The treatment records where the Veteran discusses his cervical spine injury are highly probative, as they were generated with the specific purpose of diagnoses and treatment, which enjoy a recognized high probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Further, there are no lay statements from others documenting cervical spine problems in service or subsequent to service and the Board notes that the Veteran reported to multiple medical providers that he hurt himself at work, as a mover. Therefore, the Veteran's report of a continuity of symptoms since service does not appear credible. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition to the lack of evidence showing that a chronic cervical spine disability manifested during service or within close proximity thereto with a continuity of symptomatology since service, the competent and probative medical evidence of record does not link the Veteran's current neck and back condition to his military service. As was noted above, VA and private treatment records show and the Board acknowledges that the Veteran has a current diagnosis of status post anterior cervical disc surgery with chronic cervical pain, although the Veteran may sincerely believe that his current cervical spine disability began in or is related to service, the Veteran, as a lay person, is generally not qualified to render a medical opinion as to etiology or diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); see also Voerth v. West, 13 Vet. App. 117, 119 (1999) (unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus to service). Therefore, the Veteran's statements regarding etiology do not constitute competent medical evidence on which the Board can make a service connection determination. Further, the Veteran is inconsistent on this point, as he reported in 1996 that his cervical spine injury was due to causes such as a car accident and a work mishap. As such, a nexus to service has still not been shown. Therefore, taking into consideration all of the foregoing, the Board finds that the Veteran's current chronic cervical spine disability did not manifest during service or within one year thereafter, there is no continuity of symptomatology shown and the disability has not been shown to be etiologically related to an event, disease, or injury in service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for postoperative residuals of a diskectomy and fusion, cervical spine. Because the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt provision does not apply. Therefore, the Board concludes that service connection for postoperative residuals of a diskectomy and fusion, cervical spine is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). 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) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Formerly, the elements of proper notice included informing 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 and (3) that the claimant is expected to provide. Section 3.159 was amended, effective May 30, 2008 as to applications for benefits pending before VA or filed thereafter, to eliminate the requirement that VA will request the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 C.F.R. § 3.159 (2009). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In this case, the Veteran was notified of the respective duties of the claimant and of VA, as well as of the evidence needed to substantiate his claims for service connection for a neck condition for a back condition by a letter in August 2003, before the adverse rating decision that is the subject of this appeal. Updated notice duty to assist letters were provided in March 2006, October 2006 and March 2008. The March 2006 letter provided the Veteran with the specific notice required by Dingess, supra. The most recent subsequent re-adjudication followed in October 2009. The Board concludes that VA has met its duty to notify the Veteran concerning his claim. The Board also concludes that VA has met its duty to assist the Veteran in developing the evidence to support his claims. The record contains his service treatment records and VA medical records. Private treatment records are contained in the claims file. The Veteran testified before the undersigned Veterans Law Judge. Statements of the Veteran and his representatives have been associated with the record. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. Neither the Veteran nor his representative has indicated that there are any available additional pertinent records to support his claims. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service- connected disability. This requirement could be satisfied by competent evidence showing post-service treatment for a condition, or other possible association with military service. 38 C.F.R. § 3.159(c)(4). In this case, the medical evidence shows that the Veteran's cervical spine disability did not manifest itself in service or within a year after service and was first clinically shown 20 years after active military service. The Veteran himself in 1996 attributed his cervical spine injury to a car accident in 1994 and a work accident in 1995 and there is no competent evidence that suggests it is related to any established event, injury, or disease in service. The Board, therefore, concludes that the elements of 38 C.F.R. § 3.159(c)(4) are not met and examination is not required in this instance. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Service connection for postoperative residuals of a diskectomy and fusion, cervical spine is denied. REMAND Unfortunately, the Board must again remand the case. The Board's Remand in February 2008 explained certain procedural issues that will be again repeated below verbatim; however, the crux of the matter is that paragraph 3 of the remand was not effectuated and must be. It does not appear that the Veteran was provided with a written notice of the May 2005 Administrative Decision as ordered by the Board and there is no indication that the issue of entitlement to service connection for a scar on the right forehead has been adjudicated. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. Stegall, supra. What follows is the pertinent text of the February 2008 Remand. The Board observes that in a December 2003 rating decision the RO denied the Veteran's claim seeking entitlement to service connection for a scar on the right forehead. In March 2004, the Veteran filed a Notice of Disagreement (NOD) contesting the denial of that claim. Without issuing a Supplemental Statement of the Case (SOC) on this discrete issue, the RO entered a May 2005 Administrative Decision and determined therein that the injuries sustained by the Veteran on May 22, 1974, including a laceration to the right forehead, were not in the line of duty and were the result of his own willful misconduct. Instead of providing the Veteran written notice of his right to appeal this Administrative Decision, or issuing a SOC as it pertained to the right forehead claim, the RO announced the Administrative Decision (and also initially responded to the Veteran's NOD regarding the denial of the right forehead scar claim) in a May 2005 Supplemental SOC. However, pursuant to 38 C.F.R. § 19.31(a) (2009), a Supplemental SOC may not be used to announce a decision by the Agency of Original Jurisdiction (AOJ) on an issue not previously address in the SOC, or to respond to a NOD on a newly appealed issue that was not addressed in the SOC. Accordingly, the RO's action to announce in the May 2005 Supplemental SOC both the Administrative Decision and its decision to continue to deny the Veteran's right forehead scar claim was improper. As a result, the Veteran and his representative are entitled to written notice of any decisions made by VA affecting the payment of benefits or the granting of relief, and such notice must clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation, and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision. 38 C.F.R. § 3.103(b). Thus, the RO must provide the Veteran and his representative such notice, along with a copy of the Administrative Decision concerning the issue of "line-of-duty and willful misconduct." Therefore, a remand for corrective action is warranted. Because the resolution of the "line-of-duty and willful misconduct" issue, as decided in the May 2005 Administrative Decision, may be determinative of the Veteran's the claim of entitlement to service connection for a right forehead scar, the Board finds that these two issues are inextricably intertwined. The RO should defer action, including the furnishing of a SOC, on the issue of entitlement to service connection for right forehead scar until the Veteran has had an opportunity to exercise his right to appeal the May 2005 Administration Decision concerning the issue of "line-of- duty and willful misconduct" in accordance with 38 U.S.C.A. § 7105 (West 2002). Therefore, any further action by Board at this time would be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). (Note: By a rating decision, dated December 24, 2003, the RO denied service connection for a right forehead scar. The Veteran initiated an appeal concerning this disability in March 2004. However, this same disability appears to be improperly recorded in rating decisions dated March 27, 2007, and September 21, 2007, as the only listed service connected condition. Please note that the March 27, 2007, rating decision listed only two issues for adjudication: (1) service connection for hepatitis C, and (2) entitlement to special monthly pension. These were the only two issues decided and the only two issues for which reasons for the decision were provided. The September 21, 2007, rating decision listed only one issue: entitlement to special monthly pension. This was the only issue decided and the only issue for which reasons for the decision was provided. Absent a formal adjudication resolving the discrete issue of service connection for "a right forehead scar," either before or after the December 24, 2004, rating decision, the notation of "scar, right forehead" as a service connected condition in the March 27, 2007, and September 21, 2007, rating decisions is nothing more than a typographical error. Thus, this matter is referred to the RO for appropriate corrective action). Accordingly, the case is REMANDED for the following action: 1. Please provide the Veteran and his representative with written notice of the Administrative Decision, dated May 2005, wherein it was determined that the injuries sustained by the Veteran on May 22, 1974, including a lacerated right forehead, were not in the line of duty and were due to his own willful misconduct, and they must be provided with notice of the Veteran's right to appeal. 38 C.F.R. § 3.103(b) (2007); 38 U.S.C.A. § § 7105 (West 2002). (Note: The matter addressed in the May 2005 Administrative Decision should be returned to the Board if, and only if, the Veteran perfects an appeal of the same in accordance with 38 U.S.C.A. § 7105). 2. If the benefits sought on appeal are not granted to the appellant's satisfaction, or if a timely notice of disagreement is (or has been) received with respect to any issue raised by or on behalf of the appellant, the AOJ should furnish a Statement of the Case and/or a Supplemental Statement of the Case on all issues in appellate status, and the appellant and his representative should be provided an opportunity to respond in accordance with applicable statutes and regulations. This case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs