Citation Nr: 1117455 Decision Date: 05/06/11 Archive Date: 05/17/11 DOCKET NO. 06-25 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a lumbar spine disorder. 3. Entitlement to increased evaluations for posttraumatic stress disorder (PTSD), initially evaluated as 30 percent disabling from June 27, 2005 and as 50 percent disabling from July 9, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in January 2006 and June 2007. The Veteran appeared for a Travel Board hearing in February 2011. In March 2011, he submitted additional medical evidence to the Board, accompanied by a waiver of RO review. See 38 C.F.R. § 20.1304(c) (2010). The issue of entitlement to increased evaluations for PTSD 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. FINDINGS OF FACT 1. The Veteran's current cervical spine disorder has not been shown to be etiologically related to injuries incurred in service. 2. The Veteran's current lumbar spine disorder has not been shown to be etiologically related to injuries incurred in service. CONCLUSIONS OF LAW 1. A cervical spine disorder was not incurred in or aggravated by service, nor may it be presumed to have been. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2010). 2. A lumbar spine disorder was not incurred in or aggravated by service, nor may it be presumed to have been. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the Veteran received an initial notification letter as to the service connection claims in October 2005. A March 2006 letter addressed VA's practices in assigning disability evaluations and effective dates for those evaluations, and the claims have since been readjudicated multiple times (most recently in a February 2010 Supplemental Statement of the Case). The elements of the claims on appeal, as well as the types of evidence that would contain pertinent findings, were discussed during the February 2011 hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA has obtained relevant in-service, private, and VA records of treatment of the Veteran for the claimed disabilities. There is no indication of available treatment records that have not been obtained, and, as noted above, the most recent VA treatment records were obtained following the February 2011 hearing. In this regard, the Board noted treatment from chiropractors in 1983 and 1991. As to the 1983 treatment, however, the Veteran did not identify the chiropractor but instead indicated that the chiropractor had "moved out of town." As to the 1991 treatment, from "Dr. Bruce," the Board notes that, in a statement received in February 2007, Dr. Henry E. Bruce, III reported treating the Veteran in the early 1990s but stated that all of his files more than 10 years old had been destroyed. The Board accordingly finds that a remand in furtherance of obtaining records of the noted treatment from these providers would be fruitless and would result only in delay. See Counts v. Brown, 6 Vet. App. 473, 477 (1994) (there is no duty to assist when the appellant acknowledges the unavailability of records); Porter v. Brown, 5 Vet. App. 233, 237 (1993) (VA has no duty to seek to obtain that which does not exist). The Veteran has also been afforded multiple VA examinations addressing the nature and etiology of these spine disorders, with the examiners providing etiology opinions based upon a claims file review and consideration of the Veteran's reported medical history. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including arthritis and organic neurological disorders, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In this case, the Veteran's service treatment records contain no findings concerning the cervical spine or the lumbar spine. A July 1970 separation examination report indicates normal findings as to the spine, although the claims file does not include a medical history report. The Board has considered the Veteran's reports of spinal injuries resulting from helicopter jumps. Given the fact that the Veteran served with the 196th Assault Support Helicopter Company in Vietnam during service, the Board finds this reported history of injuries to be fully credible. The question remains, however, whether current cervical spine and lumbar spine disabilities are etiologically related to service. Subsequent to service, the Veteran was not treated for any spinal symptoms until January 2006, when he was seen at a VA facility for low back pain and paresthesias to the upper extremities. A private patient history questionnaire from February 2006 indicates complaints of lower neck pain and back/lower back pain. An undated chiropractic report from Dr. Bruce, received by the RO in February 2007, indicates that the Veteran reported unspecified "injuries sustained to him," and he was diagnosed with cervicalgia/neck pain, cervical disc displacement, sciatica, and muscle spasm. The examining chiropractor found that "the symptomatology presented is consistent with the injuries sustained in the above mentioned accident." As noted above, in another statement received on the same date, Dr. Bruce reported treating the Veteran in the early 1990s for "these symptoms" but stated that all of his files more than 10 years old had been destroyed. The Veteran underwent two VA examinations in July 2008, with the first being a spine examination with an examiner who reviewed the claims file. During the examination, the Veteran reported being involved in a hard landing when he came under enemy fire in Vietnam, hurting his neck and lower back. Following an examination, the examiner diagnosed spondylosis of the cervical spine with favorable ankylosis with subjective reports of radiculopathy without objective findings, and spondylosis of the lumbar spine of L3 through L5 with subjective complaints of radiculopathy without objective findings. The examiner rendered the opinion that the Veteran's diagnoses were less likely than not related to the injuries 38 years earlier. The examiner noted "no new material evidence beyond confirmation of chronic conditions that were not shown while on active duty or within the one-year threshold for presumptive conditions." Also, the examiner stated that there were no civilian records to show any link specifically between the Veteran's current condition and military service, despite his credible report of wartime hard landings. The examiner further noted that his other comorbid conditions may have kept him from seeking medical care. Also, in July 2008, the Veteran underwent a VA neurological examination. The examiner, who reviewed the claims file, noted that there were no complaints of back pain in service or at separation from service, although the Veteran's reported history of hard landing injuries was noted. The examiner diagnosed chronic low back pain without evidence of radiculopathy or neuropathy and found that it was less likely than not that the current low back complaints were related to military service. The rationale for this opinion was that the current physical examination revealed no objective abnormalities, and the current lumbar and cervical spine x-rays showed no more osteoarthritis than would be expected in any patient at age 60. The Board also notes that, in a June 2009 psychiatric examination report, Patrick B. Mullen, M.D., rendered an Axis III diagnosis of "[b]ack and spine problems - chronic back strain with an unfavorable ankylosis - kyphotic secondary to injuries in Vietnam." These were further described "[a]nother aspect" of the Veteran's injuries. In weighing the above evidence, the Board notes that the unfavorable etiology opinions from the aforementioned VA examination reports were based upon a claims file review, full medical examinations, and consideration of the Veteran's lay history of disability. The examinations, and the ensuing reports, were complete and thorough, and the opinions offered accordingly represent evidence of very considerable probative value. By contrast, the notations of service-related injuries from the two cited private reports are not accompanied by a rationale and do not reflect a review of the claims file. There is also no indication whatsoever that these treatment providers had treated the Veteran for an extended period of time dating back to service. Such notations are accordingly of no more than minimal probative value. But see generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the claims file "is not a magical or talismanic set of documents, but rather a tool to assist VA examiners to become familiar with the facts necessary to form an expert opinion to assist the adjudicator in making a decision on a claim"; there are other means by which a private physician can become aware of critical medical facts, notably by treating the claimant for an extended period of time). The remaining determination for the Board concerns the competency and probative value of the Veteran's reported history of cervical spine and lumbar spine disabilities. As noted above, the Board finds this history to be credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. at 308-09 (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. In the present case, the Board finds no basis to question the Veteran's reports of spinal symptoms since service. However, "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). The determination that ongoing pain represents a chronic musculoskeletal or neurological disability is a medical determination that must be made by a medical professional possessing credentials and training not demonstrated by the Veteran, including through medical testing in several instances. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010 (concerning degenerative and traumatic arthritis "established" or "substantiated" by x-ray findings). On this count alone, the Board must find that the Veteran's lay contentions are very substantially outweighed by the VA examiners' opinions. Also weighing against the Veteran's claims is the fact that he had no documented medical treatment for any of his claimed disabilities for many years subsequent to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Overall, while the Board acknowledges the Veteran's in-service injuries, the preponderance of the evidence is heavily against the finding that his current cervical spine and lumbar spine disabilities are etiologically related to service. The claims for service connection for those disabilities must therefore be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a cervical spine disorder. Entitlement to service connection for a lumbar spine disorder. REMAND The Veteran has been afforded several VA psychiatric examinations in conjunction with this appeal, most recently in June 2009. At that time, the Veteran denied suicidal ideation, and he was described as having a moderate to severe degree of impairment in social functioning, a moderate degree of impairment in occupational functioning, and moderate disability overall. Subsequent evidence shows a worsening, however. A November 2009 examination repot from Dr. Mullen indicates suicidal thoughts and a severe disability level. A February 2010 VA treatment record contains a notation of a report of increased PTSD symptoms, although at that time the Veteran denied suicidal ideation. At his February 2011 hearing, the Veteran reported obsessional rituals, unprovoked anger, memory loss, delusions, and suicidal ideation. He also described an unstable employment situation, where he was self-employed as a furniture reupholsterer but was only doing "piecemeal work." Under these circumstances, a further VA examination addressing the current symptoms and severity of PTSD is necessary. 38 C.F.R. § 3.159(c)(4); VAOPGCPREC 11-95 (April 7, 1995). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA psychiatric examination, with a psychiatrist or psychologist, to determine the symptoms and severity of the service-connected PTSD. The examiner must review the claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. A multi-axial diagnosis must be rendered, with a Global Assessment of Functioning score assigned. The examiner must address the presence and extent of suicidal ideation, obsessional rituals, unprovoked anger, memory loss, and delusions and must address when those symptoms (if present) first arose. The examiner must also question the Veteran about the terms of his self-employment (i.e., hours worked, money earned) and address the extent of social and occupational impairment resulting from PTSD. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 2. After completion of the above development, the Veteran's claim for higher evaluations for PTSD should be readjudicated. If the determination remains less than fully favorable to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. The Veteran has the right to submit additional evidence and argument on this matter. 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. 2010). ______________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs