Citation Nr: 1036727 Decision Date: 09/28/10 Archive Date: 10/05/10 DOCKET NO. 06-08 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a thoracic spine disorder. 4. Entitlement to service connection for a left arm disorder. 5. Entitlement to an initial evaluation in excess of 10 percent for residuals of a left hand injury with numbness in the fourth and fifth fingers. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Jessica J. Wills, Counsel INTRODUCTION The Veteran served on active duty from December 1989 to May 1998. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. That decision denied the claims for service connection for a cervical spine disorder, a thoracic spine disorder, a left arm disorder (other than a left shoulder disorder), and a left knee disorder. The June 2005 rating decision also granted service connection for residuals of a left hand injury with numbness in the fourth and fifth fingers and assigned a noncompensable evaluation effective from January 25, 2005. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. A hearing was held on April 13, 2007, in Little Rock, Arkansas, before Kathleen K. Gallagher, a Veterans Law Judge (VLJ), sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. Upon receipt of the Veteran's claims file after the hearing, the Board noted that the written transcript of the April 2007 hearing was incomplete. The Board notified its Hearing Division of the incomplete transcript but was advised that there was no backup of the hearing tape. Thus, the Board sent the Veteran a letter in December 2007 in which he was offered the opportunity to appear at another hearing. The Veteran did elect to have another hearing. Since that time, however, the Hearing Division was apparently able to locate a backup of the hearing tape and provide a complete transcript of the April 2007 Board hearing. Thus, the Board is able to proceed with consideration of this appeal with no further delay or inconvenience to the Veteran. The Board subsequently remanded the case for further development in February 2008. That development was completed, and the case has since been returned to the Board for appellate review. The Board notes that a rating decision was issued during the pendency of the appeal in November 2009, which increased the Veteran's evaluation for his service-connected left hand disability to 10 percent effective from January 25, 2005. However, applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the Veteran's claim for an increased evaluation remains on appeal. The issues of entitlement to service connection for a thoracic spine disorder and for a left arm disorder as well as to an increased evaluation will be 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 1. The Veteran has been shown to currently have a cervical spine disorder that is related to his military service. 2. The Veteran has been shown to currently have a left knee disorder that is related to his military service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, a cervical spine disorder was incurred in active service. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 2. Resolving reasonable doubt in favor of the Veteran, a left knee disorder was incurred in active service. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In the decision below, the Board has granted the Veteran's claims for service connection for a cervical spine disorder and for a left knee disorder. Therefore, the benefits sought on appeal have been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Analysis 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, 1131. 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 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). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for a cervical spine disorder and for a left knee disorder. He has contended such disorders developed as a result of injuries that he sustained when he fell from an aircraft in February 1997. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a cervical spine disorder and a left knee disorder. However, those records do show that he sought treatment in February 1997 after he fell approximately six feet from a parked plane. He landed on the posterior lateral aspect of his left shoulder and immediately sought treatment for left shoulder pain, but no additional complaints were recorded. Subsequent service treatment records show that the Veteran underwent physical therapy during which he complained of continuing left shoulder and arm pain, tingling in his left upper extremity, and numbness in the fourth and fifth digits of the left hand. EMG and nerve conduction studies were performed in July 1997, but they were normal with no evidence of a median or ulnar neuropathy, a brachial plexus lesion, or an active cervical radiculopathy. At an August 1997 physical examination, the Veteran's neck, spine, and lower extremities were normal, and he denied having a medical history of a trick or locked knee or recurrent back pain. The post-service medical evidence includes clinical records dated from July 1998 to January 2006. In pertinent part, these records include a July 1998 pre-employment physical performed in connection with the Veteran's application for employment as a firefighter. On examination, he once again denied having a history of a trick or locked knee and recurrent back pain. Subsequent annual examinations performed in July 1999, September 2000, August 2001, and September 2002, are also negative for complaints or abnormalities pertaining to the cervical spine and left knee. The Veteran later sought treatment in September 2004 following a work-related left shoulder injury. The assessment was an acromioclavicular (AC) joint injury and a rotator cuff strain. In October 2004, the Veteran underwent MRI studies of the cervical spine, which showed minimal disc disease. More recent MRI studies show tiny disc bulges at T2-3 and T3-4, but EMG testing has been normal. In January 2005, the Veteran submitted a claim for service connection for numerous disabilities, which he claimed were associated with the February 1997 fall, including disabilities of the cervical spine and left knee. He claimed that he had fallen approximately 15 to 20 feet and landed on his head, left shoulder, left arm, and left knee. The Veteran was afforded a VA examination in April 2005 at which he claimed that he fell backwards from a plane approximately ten to twenty feet and landed on his head, neck, and shoulders. He indicated that his helmet was shattered and that he sustained "multiple injuries in the fall, including both shoulders, neck, left arm, left hand, left knee, and his thoracic spine." Following a physical examination, the examiner diagnosed the Veteran, in pertinent part, with residuals of injuries to the cervical spine and left knee. The Veteran was also provided a VA examination in April 2009 during which the examiner noted that the Veteran's February 1997 injury was documented in his service treatment records. In particular, he observed that the Veteran injured his left knee and neck areas and that he developed stiffness and pain in his neck, which radiated down his arm. Following a physical examination, the Veteran was diagnosed with a chronic cervical sprain and left knee patellofemoral pain syndrome with chondromalacia. The examiner opined that it is at least as likely as not that the diagnoses are related to the Veteran's fall and injuries in February 1997. The April 2009 VA examiner later submitted an addendum to his report in July 2009 in which he indicated that the Veteran had told him that he injured his neck and left knee during his fall in February 1997. He also noted that there were no intervening circumstances and that he was later seen for and diagnosed with a cervical sprain and left knee patellofemoral pain syndrome. The examiner indicated the rationale for his previous opinion was based on the fact that the Veteran injured his neck and left knee in service and later complained of problems in the same areas. As such, the Board notes that the April 2009 VA examiner based his opinion primarily on the fact that the Veteran injured his neck and left knee in service. As previously discussed, there is no medical evidence of any actual complaints, treatment, or diagnosis of a cervical spine or left knee disorder in service. However, there is documentation of the fall in 1997, and the Veteran is competent to report his experience and symptoms in service. While lay persons are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A veteran can attest to factual matters of which he or had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). There is no reason to doubt the credibility of the Veteran's statements that he injured his neck and left knee during his fall in service other than a lack of contemporaneous medical evidence documenting such complaints. The Board may not reject the credibility of the Veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Moreover, there is no evidence of any intercurrent injury. Based on the foregoing, there is at least an approximate balance of positive and negative evidence regarding the issues at hand. The Board also observes that the Court has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's current cervical spine disorder and left knee disorder are causally or etiologically related to his period of service. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for a cervical spine disorder and for a left knee disorder is warranted. ORDER Subject to the provisions governing the award of monetary benefits, service connection for a cervical spine disorder is granted. Subject to the provisions governing the award of monetary benefits, service connection for left knee disorder is granted. REMAND Reasons for Remand: To obtain additional treatment records, to afford the Veteran a VA examination, and to notify him of the pertinent rating criteria. As discussed above, the law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 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); 38 C.F.R. § 3.159 (2009). In this case, it appears that there may be additional treatment records that are not associated with the claims file. In this regard, the Board notes that the claims file contains invoice statements from a private physician dated from January 2007 to August 2008. Those invoices indicate that treatment was rendered for various disorders, including shoulder pain and back pain. However, the evidence of record does not include any of the actual treatment records from that private medical provider. Such records may prove to be relevant and probative. Therefore, the RO should obtain and associate with the claims file any and all treatment records pertaining to a thoracic spine disorder, left arm disorder, and residuals of a left hand injury. Moreover, the Board observes that the Veteran has not been provided the rating criteria pertinent to his claim for a higher initial evaluation for residuals of a left hand injury with numbness in the fourth and fifth fingers. In this regard, the Board notes that the Veteran is currently assigned a 10 percent disability pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8599- 8516. The January 2006 statement of the case (SOC) and the July 2006, September 2006, and November 2009 supplemental statements of the case (SSOC) did not provide the Veteran with any diagnostic codes, and a May 2008 letter only notified him of the rating criteria under Diagnostic Code 8514. Therefore, the Board finds that a remand is necessary for the issuance of a SSOC and to ensure due process. In addition, the Board notes that the Veteran was afforded VA examinations in April 2005 and April 2009 in connection with his claim for service connection for a left arm disorder. In pertinent part, the examiner diagnosed the Veteran with residuals of an injury to both shoulders and residuals of an injury to left hand with numbness in the fourth and fifth fingers. Following that examination, service connection was granted for residuals of injuries to the left and right shoulder and to the left hand with numbness in the fourth and fingers. Nevertheless, the Board notes that the April 2005 VA examiner did not specifically address whether the Veteran had a current left arm disorder that was separate from his service-connected left shoulder and left hand disabilities. The April 2009 VA did later comment that the Veteran did not have any orthopedic diagnosis. However, it was noted that he his left arm did have nerve involvement and radiation. As such, it is unclear as to whether the Veteran may have a current diagnosis of a left arm disorder other than an orthopedic one. Therefore, the Board finds that an additional VA examination is necessary for the purpose of determining the nature and etiology of any and all left arm disorders that may be present. Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following actions: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a thoracic spine disorder, a left arm disorder, and residuals of a hand injury. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. A specific request should be made for the actual treatment records from Dr. B.G. (initials used to protect the Veteran's privacy), who is identified on invoice statements dated from January 2007 to August 2008. 2. After completing the development in the foregoing paragraph, the Veteran should be afforded a VA examination to determine the nature and etiology of any left arm disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, private medical records, and statements. It should be noted that the Veteran did have a documented injury to his left arm in 1997 and that service connection has already been established for a left shoulder disorder and a left hand disorder. The examiner should identify all current left arm disorders, including all orthopedic and neurological diagnoses. For each disorder identified, the examiner should state whether it is at least as likely as not that the current disorder is causally or etiologically related to the Veteran's military service, including his fall and injury in 1997. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2009), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the above actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. Further development may include affording the Veteran VA examinations in connection with his clam for service connection for a thoracic spine disorder and his claim for an increased evaluation for his service-connected left hand disability. 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth all applicable laws and regulations, including Diagnostic Code 8516. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs