Citation Nr: 1216004 Decision Date: 05/03/12 Archive Date: 05/10/12 DOCKET NO. 05-34 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a low back disability, for purpose of accrued benefits. REPRESENTATION Appellant represented by: Sean A. Ravin, Esq. WITNESSES AT HEARING ON APPEAL The Veteran and the appellant ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from December 1949 to December 1953. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied a petition to reopen service connection for a low back disability. In June 2007, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge (VLJ), a transcript of which is of record. In August 2007, the Board reopened the Veteran's claim, and remanded the underlying claim on the merits for additional development. The case was remanded again in June 2008. The Board then denied the claim on appeal through a September 2009 decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The Court issued a June 2011 Memorandum Decision vacating the Board's decision and remanding the case back to the Board. The Veteran died in June 2011, during the pendency of his appeal, and his widow filed a timely request to be substituted as the appellant in his place, which the Court granted pursuant to a November 2011 Order. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008); Breedlove v. Shinseki, 24 Vet. App. 7 (2010) (holding that when an appellant dies during the course of an appeal to the Court, substitution may be appropriate if the moving party would be eligible to receive accrued benefits based upon the appeal). Through February 2012 correspondence, the Veteran's attorney raised the issue of the appellant's claim for entitlement to Dependency and Indemnity Compensation (DIC), in addition to the pending matter involving accrued benefits. The issue of entitlement to DIC has been raised by the record, but has not been adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim, and it is referred to the RO for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board has determined that further development of this case is in order in furtherance of the Court's November 2011 Memorandum Decision. As indicated, in November 2011 the Court substituted the appellant as the eligible survivor of the Veteran for purposes of pursuing a claim for accrued benefits. Unlike prior accrued benefits claims, where there has been substitution under 38 U.S.C.A. § 5121A the record is not closed on the date of death of the original claimant, but remains open for the submission and development of any pertinent additional evidence. When the Board previously denied the issue of service connection for a low back disability through a September 2009 decision, at that time the Board acknowledged that two out of three requisite elements of the Veteran's claim were demonstratively proven, those of (1) a current diagnosed low back disability, and (2) an in-service back injury. What remained to be proven, and the Board ultimately found lacking in this case, was the third element of a medical nexus between the present disability and military service. Medical causation is an indispensable criterion to establish service connection. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See too, Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). The Board's denial placed significant emphasis upon the report of a January 2008 VA Compensation and Pension examination of the spine, from which the VA examiner's medical opinion is provided: After review of the medical records contained in the claims file, as well as the outpatient treatment records from the VA hospital, it is apparent that there is a lapse of medical evidence between 1953 and 1987 to show ongoing symptoms of a spine disorder or a diagnosed condition thereof. The Veteran was working as a truck driver during that time period. In the [Indian Health Service] hospital records of 11/16/89, the record indicates that the patient runs every day about two and a half miles. This indicates that the Veteran was very active at that time. Due to the lack of medical evidence to substantiate chronicity during the 34-year period between 1953 and 1987, it is this examiner's opinion that it is less likely than not that the diagnosed spinal disorders currently can be related to the Veteran's service injury to include low back findings in 1953. The Board's decision further considered that the Veteran had offered "self-reported continuity of symptomatology of back pain dating back to his service," but ultimately found that while this was competent evidence of continuity of symptomatology, and entitled to some probative value, the evidence was outweighed by the statements of the VA examiner as a medical professional, in addition to the lack of documented medical treatment between 1953 and 1987. The Board's reference to continuity of symptomatology therein is consistent with principles of established VA law on service connection, providing that for a medical condition manifested in service but not indicated to be chronic, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). See also, Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (the elements of in-service incurrence of a disease or injury, and an association between that and a present diagnosed disability may be substantiated through a demonstration of continuity of symptomatology). Thereafter, the Court's November 2011 Memorandum Decision held that the Board's discussion of the evidence in this case offered an insufficient, or at the very least unclear, assessment of the Veteran's competent lay assertions of continuity of symptomatology. Essentially, the Court found that the Board failed to make an express determination on the credibility of the Veteran's lay assertions of continuity of symptomatology. The Veteran in this case had reported having sought treatment for back pain at a Naval hospital in the 1960s (for which actual medical records were never located) and then from a private chiropractor (records also not found), with alleged consistent back problems from service discharge through the present time period. The Court pointed out that the Board in its role as a factfinder "is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself" (citing to Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006)). The Court further found that the Board's lack of definitive analysis of the credibility of the Veteran's lay statements constituted a prejudicial error, in that the Veteran's statements if deemed credible would be entitled to probative weight. This in turn would mean that the January 2008 VA examiner's opinion could not be deemed adequate, given its having overlooked the Veteran's own lay statements on continuity of symptomatology. Thus, the Court remanded this case to the Board to make an explicit finding on the credibility of the Veteran's assertions, and their overall significance to this case, including obtaining a new VA medical opinion if required. Having reviewed this case again, the Board sees no reason to question the credibility of the Veteran's lay assertions of continuity of symptomatology. Therefore, the VA medical opinion's reliance upon the lack of documented continuity of symptomatology (and absence of addressing the Veteran's lay assertions) is no longer deemed persuasive. A supplemental opinion will be requested from the January 2008 VA examiner that considers all pertinent evidence of record. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c)(4) (2011) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should return the claims folder to the examiner who conducted the VA examination of January 2008 and request a supplemental opinion. The VA examiner is requested to review the contents of the Veteran's claims file. The VA examiner is then requested to provide another opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current low back disability is etiologically related to his military service taking into consideration both the documented medical history, and the Veteran's competent lay assertions of continuity of symptomatology from service discharge to the present time period. (Please consider in this regard that the mere lack of documented treatment for back problems between 1953 and 1987 would not in and of itself likely be a sufficient opinion rationale, given the Veteran's competent lay assertions of having undergone treatment for the same during the intervening time period.) Provided that the January 2008 VA examiner is not available, or is no longer employed by VA, obtain a medical opinion from another examiner that addresses the inquiries set forth above regarding the disability claimed. 2. The RO/AMC should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the RO/AMC should readjudicate the claim on appeal based upon all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant 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. 2011). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).