Citation Nr: 1137293 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 05-25 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for residuals of a brain injury (to include headaches.) REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to March 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at an RO hearing in February 2006 and at a Board hearing in May 2008, and transcripts of the hearings are associated with his claims folder. The Board last remanded the case to the RO in April 2010. The residuals of brain injury issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT Chronic low back disability was not manifest in service or to a degree of 10 percent within one year of service discharge and is unrelated to any incident of service, including the Veteran's in-service back symptoms. CONCLUSION OF LAW The criteria for service connection for low back disability are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Board initially observes that service connection for low back disability and for residuals of a head injury was denied by rating decision in July 1977. The Veteran did not initiate an appeal from that determination, and it became final. 38 U.S.C.A. § 7105(c). The Veteran subsequently attempted to reopen the claims, but his request was denied by rating decision in September 1998. He did not appeal and that decision also became final. At attempt to reopen the head injury claim was denied by rating decision in September 2000. The Veteran did file a timely notice of disagreement, but failed to complete his appeal with a timely substantive appeal in response to a statement of the case. The present appeal arises from a November 2004 rating decision. Review of that determination, the statement of the case and subsequent supplemental statements of the case show that the RO has effectively reopened the claims and addressed the issues under a merits analysis. Although the RO may have effectively determined that new and material evidence was received to reopen the claim, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). This does not appear to have been addressed in prior remands which were in large part issued for the purpose of obtaining records. At this time the Board observes that the July 1977 rating decision denied the claims on the basis of no current disability. Evidence subsequently received clearly shows current low back disability and some evidence suggesting a possible post-traumatic brain disorder. Such evidence must be viewed as new and material. Therefore, the Board at this time formally and expressly finds that new and material evidence has been received and that both claims have been reopened. Veterans Claims Assistance Act of 2000 (VCAA) Before turning to a consideration of the merits of the issues, the Board acknowledges that upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in August 2004. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, as is required by Dingess, the Board notes that the RO sent the Veteran an August 2008 correspondence that fully complied with Dingess. VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for low back disability in June 2010; and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's remand directives for obtaining evidence, examining the Veteran, and readjudicating the claim. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis Low Back Disability The Board now turns to consideration of the merits of the Veteran's low back service connection claim. Service treatment records show instances of the Veteran having complaints of back pain in December 1976 and January 1977, with impressions of low back pain and rectus spasm in January 1977. The Veteran reported few problems with his back and side on service discharge examination in February 1977, and he was found to be neurologically normal. His musculoskeletal system and spine were normal as well. The examiner indicated that he had a history of back strain. The Veteran complained of back pains on VA examination in May 1977, indicating that his back had not improved and that he still had plenty of pain in his lower back. However, on examination, his carriage, posture, and gait were normal. He had no back guarding, forward bent to reach the floor, fully squatted, heel and toe walked, had equal circumferences of his lower extremities, and had no atrophy, swelling, or joint enlargement. The diagnosis was that there were no objective findings on examination for a back injury. VA records dated from 1994 refer to back complaints. A May 1996 VA medical record refers to complaints of back pain and cites a 1988 back injury. A June 1996 private medical report documents complaints of headaches and back pain for 8 years. A private medical report dated in July 1996 documents treatment for (among other things), back pain, learning impairment and depression. It was noted that the Veteran had a history of back pain for many years. It was noted that in 1988 the Veteran was working for a die casting plant when a piece of iron hit him in the back. The report did not refer to any back problems during service. A May 1998 response to a request for information from a private doctor identified by the Veteran includes notations to the effect that the Veteran saw an orthopedist in 1988 and was seen for complaints of back pain in the early and mid 1990's. On VA examination in June 1998, minimal osteophytes at L3, L4 of the lumbar spine were reported; the lumbar spine was otherwise normal. Further, a VA examiner found in June 2010 that the Veteran had mild degenerative disc disease and arthritis of his lumbosacral spine currently. The examiner reviewed the claims folder including the Veteran's service treatment records and found that he most likely had had a lumbar paraspinal muscle strain during service. He also noted a documented injury in 1996. The examiner concluded that the Veteran's current degenerative disc disease and arthritis of his lumbosacral spine was not causally related to his back strain during service. Instead, the radiographic findings of disc space narrowing and facet hypertrophic changes currently shown are related to the natural process of the Veteran's aging. The examiner also felt that the injury in 1996 had contributed to the Veteran's current low back disability. There is no question that the Veteran had back symptoms during service, and there is no question that he has current low back disability. The determinative question is whether there is a link or nexus between the inservice back symptoms and his current low back disability. After reviewing the entirely of the evidence, the Board must conclude that the current low back disability is separate from and unrelated to the back problems during service. The medical evidence suggests that the Veteran only had a back muscle strain in service. Although he complained of pain on VA examination in May 1977, there was no objective disability at that time. The first indication of a low back complaints after that time appears to be in 1988 in connection with a job-related back injury. Although not entirely clear, there is some evidence which even suggests another back injury in the mid-1990's. At any rate, there does not appear to be any documentation of low back complaints from shortly after discharge from service in 1977 until 1988. It is significant that a medical examiner, after examining the Veteran and reviewing the file, has attributed the Veteran's current degenerative disc disease and arthritis of his lumbosacral spine to his natural aging process, and felt that it was not causally related to the Veteran's service manifestations. He is a physician who considered the Veteran's history, service treatment records, and medical records post-service in doing so. Accordingly, his opinion is considered probative. Prejean v. West, 13 Vet. App. 444 (2000) (factors for determining probative value of medical opinions include their thoroughness and detail, whether they discussed why contrary opinions were not persuasive, and the opinion-writer's access to relevant records). The Veteran is certainly competent to report a continuity of symptoms since service for purposes of showing a nexus. The Veteran has testified in May 2008 that he has seen many doctors for his back problem. However, his assertions of back complaints from the time of service to the present is inconsistent with the overall evidence of record and thus of diminished credibility. The Board believes it significant that the medical records dated in the 1990's repeatedly refer to a 1988 back injury in the context of reporting the history of the Veteran's back problems. There does not appear to be any evidence showing that the Veteran was reporting to medical personnel that he had in fact had back symptoms since service. Based on the current record, the Board finds that a case for continuity of symptomatology since service is not made out but is instead refuted by the overall evidence. Although the Veteran did have back symptoms during service, examination shortly after service showed no objective evidence of low back disability, and there is no supporting evidence of low back complaints for approximately 10 years after service. At that time (1988), the record shows a work-related low back injury. Evidence since 1988 appears to refer to that 1988 injury as the time of onset of the Veteran's current disability. The Veteran's statements and testimony regarding low back problems continuing since service are not shown to be credible when viewed against the overall evidence. The Board must conclude that the preponderance of the evidence is against service connection for his current low back disability. ORDER Service connection for low back disability is not warranted. To this extent, the appeal is denied. REMAND Residuals of a brain injury The Veteran fell and hit his head in service in January 1977 and was felt to possibly have a concussion. He is claiming entitlement to service connection for residuals of that injury. There was an unfavorable VA medical opinion on the matter of service connection for residuals of a brain injury in June 2010. The examiner was asked to review the claims folder, and at the time, the examiner indicated that the Veteran's claims folder did not contain his service treatment records or any records earlier than 1999. However, the Veteran's service treatment records (including a January 1977 service treatment record) are now in the claims file as well post-service records from as early as 1977. It appears, therefore, that the June 2010 medical opinion was based on an incomplete review of the claims file. As such, this issue must be remanded for another examination and opinion to fully assist the Veteran. Accordingly, the case is REMANDED to for the following action: 1. The RO should schedule the Veteran for an appropriate VA examination to address the nature and etiology of any current residuals of an in-service brain injury (to include headaches). The claims folder must be made available to and reviewed by the examiner in conjunction with the examination. Any medically indicated tests should be performed, and examination findings clearly reported. Based upon the examination results and a review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or more probability) that there are any current residuals (to include headaches) of the inservice head injury. The examiner should provide a rationale for the opinion. 2. After completion of the above, the RO should review the expanded record and determine if service connection is warranted for the claimed disability. The Veteran and his representative should be furnished a supplemental statement of the case addressing any issue which remains denied. After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review. 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. 2006). ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs