Citation Nr: 1136167 Decision Date: 09/26/11 Archive Date: 10/03/11 DOCKET NO. 07-10 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a right hip disability. 3. Entitlement to service connection for a left leg disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and a friend ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from November 1943 to June 1946 and from August 1947 to February 1965. This matter comes before the Board of Veterans' Appeals (Board) from August 2005 and June 2007 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). In August 2011, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in September 2011. In light of the positive opinion expressed by the VHA medical specialist, without delay the Board will proceed with the consideration of his case. In October 2009, the Veteran testified at a Board hearing before the undersigned. In December 2009 and again in October 2010, this matter was remanded to the RO for additional development. While the Board regrets the delay, an additional remand is required as to the claim for entitlement to service connection for a right hip disability. That issue 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. Competent medical and lay evidence establishes that the Veteran's degenerative joint disease and degenerative arthritis of the thoracolumbar spine had its onset in service. 2. Competent medical and lay evidence establishes that the Veteran's left leg radiculopathy is as likely as not causally connected to his lumbar spine disability. CONCLUSIONS OF LAW 1. Degenerative disc disease and degenerative arthritis of the thoracolumbar spine was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). 2. Left leg radiculopathy was caused by the service-connected thoracolumbar spine arthritis. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for degenerative disc disease and degenerative arthritis of the thoracolumbar spine and for left leg radiculopathy, which represent complete grants of the benefits sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The second and third elements may be established by showing continuity of symptomology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Additionally, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the Veteran, because it does not require the establishment of a baseline before an award of service connection may be made. The Board must fully consider the lay assertions of record. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Regulations also provide that service connection may 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 determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Further, the Court has held that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this case, while symptoms of a back disorder and left leg disorder are not noted in service, there is competent and credible evidence, through several lay statements, as well as a medical opinion, that the back symptoms began in service and continued ever since, as well as evidence that the left leg disability is causally connected to the back disorder. For these reasons, described with more particularity below, the Veteran's claim is allowed. The Veteran provided testimony before the undersigned Veterans Law Judge in October 2009, during which he suggested that he exerted his joints in service by lifting bodies, and that he experienced symptoms such as pain at that time. VA examination reports dated in February 2010 and December 2010 failed to adequately address the etiology of the Veteran's claims. Essentially, the opinions wholly disregarded the Veteran's statements as to pain experienced in service, along with his testimony as to being on a hospital ship and in pharmaceuticals during his many years in service. He testified as to experiencing certain types of pain, discussing that pain with his colleague physicians, and receiving certain types of medication. As noted in the previous two remands, the Veteran asserts that his claimed disability had its onset during his period of active duty, when he worked as a Navy medic and was tasked with lifting sick and wounded service members and other heavy objects. In support of the Veteran's claim, a friend who has known him since his period of active duty testified at his hearing that the Veteran has complained about the above conditions since the time of his service. Thus, the Board obtained a VHA opinion in September 2011. The VHA physician reviewed the claims folder and, based upon this review of the record, opined that the low back disability should be service connected because of repeated bending and lifting heavy litters containing patients or dead bodies when he worked as a corpsman during active military service. Thus, the evidence shows that the Veteran had in-service instances of back pain, as described by him in his competent and credible hearing testimony, followed by back pain continuously ever since, which has culminated in the diagnosis of degenerative arthritis of the thoracolumbar spine, which is shown by a VHA physician to be causally connected to his time of service. Thus, the evidence shows that service connection is warranted for degenerative disc disease and degenerative arthritis of the thoracolumbar spine. As to the left leg, the VHA physician opined that the left leg condition may be related to the referred pain from his low back to his left leg, as shown in the body of medical evidence in the claims folder. The Board observes that the Veteran reported pain radiating from his back to his left lower extremity at the time of his February 2010 VA examination. The examiner, at that time, confirmed the diagnosis as radiculopathy. Thus, with a diagnosis of left leg radiculopathy, which the VHA physician opined as due to the lumbar spine disability, now service connection, service connection is warranted under 38 C.F.R. § 3.310, because the left leg disability was caused by the now service-connected back disability. ORDER Service connection for degenerative disc disease and degenerative arthritis of the thoracolumbar spine is granted. Service connection for a left leg disability is granted. REMAND The Veteran is seeking to establish service connection for a right hip disability. In addition to suggesting that his hip disability was causally connected to his already service-connected cervical spine disability, he provided testimony before the undersigned Veterans Law Judge in October 2009 suggesting that he exerted his joints in service by lifting bodies, and that he experienced symptoms such as pain at that time. In December 2009, and again in October 2010, the Board remanded these issues for an examination and for a complete and thoroughly explained opinion as to the etiology of any current right hip. The Veteran was afforded a VA examination in February 2010. The report shows that the examiner rendered an opinion as to whether the claimed disabilities were caused by or aggravated by the service-connected cervical spine disability. The examiner did not provide a medical opinion as to whether these claimed disabilities are related to the Veteran's period of service. Thus, the matter was again remanded in October 2010 so that the VA examiner could provide an adequate opinion as to a nexus on a direct basis, with consideration of the Veteran's lay statements. In a December 2010 addendum, the VA examiner restated the question and followed it with the following addendum: "In my opinion, it is less likely as not (less than 50/50 probability), that the Veteran's [right hip disability had its] clinical onset in service or that [it is] medically related to disease or injury in the service. The C-file has been reviewed and the opinion was based on review of the C-file and finding no evidence of significant injury or complaints in regards to these areas to be documented in the record. It is my opinion that the service connected cervical disability is not the causative reason for these stated problems." This opinion did not take into account the Veteran's competent report of having had pain in service, along with his testimony as to being on a hospital ship and in pharmaceuticals during his many years in service. He testified as to experiencing certain types of pain, discussing that pain with his colleague physicians, and receiving certain types of medication. As noted in the previous two remands, the Veteran asserts that his claimed disability had its onset during his period of active duty when he was tasked with lifting sick and wounded service members and other heavy objects. In support of the Veteran's claim, a friend who has known him since his period of active duty testified at his hearing that the Veteran has complained about the above conditions since the time of his service. Following this opinion, the Board obtained a VHA opinion with regard to the Veteran's claim. The September 2011 report notes that the VA physician reviewed the claims folder, including service treatment records. The physician, however, made no mention of the Veteran's competent lay testimony as to the initial onset of symptoms related to his hip, as found in the Veteran's hearing testimony. By stating that the C-file contains "no evidence of significant injury or complaints," the 2010 VA examiner did not take into account the Veteran's and his friend's lay testimony, which the Board finds no reason to deem less than credible and competent, especially considering the Veteran's in-service Military Occupational Specialty (MOS). And, by not considering this lay testimony, the September 2011 VHA physician also made clear that the Veteran's and his friend's testimony was not considered. Ignoring such evidence renders the reports inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury, but relied on the service treatment records to provide a negative opinion). The Board finds that the Veteran needs a current VA examination to determine the current nature of any right hip disability, as well as to assess its etiology, taking competent lay testimony into account. For this reason, another remand is required. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. After associating any pertinent, outstanding records with the claims folder, afford the Veteran an appropriate VA examination to assess the nature, onset and etiology of any right hip disability found to be present. The examination report, in addition to confirming the current diagnosis, should address whether it is at least as likely as not that the Veteran's right hip disability had its clinical onset in service and whether the disability is medically related to disease or injury in service. In doing so, the examiner must specifically acknowledge and discuss the in-service notations of treatment, as well as any current findings, and any of the competent and credible lay reports from both the Veteran and his hearing witness regarding the symptoms both in service and since. See Dalton v. Nicholson, 21 Vet. App. 23 (examination found inadequate where examiner did not comment on the Veteran's report of in- service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). The claims folder should be made available to and reviewed by the examiner. The examiner should provide a rationale for all conclusions. If the examiner determines that he or she is unable to provide the requested medical opinion without resorting to speculation, he or she should indicate this in the report. 2. Then readjudicate the issue in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be issued a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter 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. 2010). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs