Citation Nr: 1216547 Decision Date: 05/08/12 Archive Date: 05/16/12 DOCKET NO. 03-22 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for degenerative joint disease of multiple joints, including the shoulders, hands, and knees. 2. Entitlement to service connection for a back disability, including degenerative disc disease of the lumbar spine with right leg radiculopathy. REPRESENTATION Veteran represented by: Sean Kendall, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1970 followed by service in the Reserves. This matter come before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for degenerative joint disease of the shoulders, hands and knees, and degenerative disc disease of the lumbar spine. In July 2004, the Board issued a decision which, inter alia, denied entitlement to service connection for degenerative joint disease, and remanded the issue of service connection for degenerative disc disease to the RO (via the Appeals Management Center (AMC)) for further evidentiary development. After completion of the requested development, the AMC has returned the issue of service connection for degenerative disc disease to the Board for appellate review. The Veteran appealed the denial of his claim for service connection for degenerative joint disease to the U.S Court of Appeals for Veterans Claims (Court). In an Order dated February 2007, the Court vacated the July 2004 Board decision denying service connection for degenerative joint disease, and remanded that issue to the Board for readjudication consistent with its Order In December 2008, the Board remanded this case for further development, which has been completed. Subsequently, in January 2012, the Veteran testified in a video conference hearing before the undersigned. A copy of the transcript has been associated with the claims folder. The issue of service connection for degenerative joint disease of multiple joints, including the shoulders, hands, and knees 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. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's current back disability is related to service. CONCLUSION OF LAW A back disability was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Stegall Considerations As noted above, the Board remanded this case in July 2004 and December 2008. The Board instructed the RO/Appeals Management Center (AMC) to obtain outstanding VA treatment records since 2002 and another medical opinion, and to readjudicate the claim. Subsequently, outstanding VA medical records dated after 2002 were associated with the claims folder, the Veteran was provided an examination in March 2010, and the claim was readjudicated in an October 2011 supplemental statement of the case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in August 2002, January 2003, July 2004, and June 2009, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2011). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The June 2009 letter notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated in the October 2011 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2011). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. While the Veteran has identified several sources of evidence (e.g. VA medical records dated from January 1970 to December 1978, Social Security Administration records, and records from the Mississippi Workers' Compensation Commission prior to February 1996), the RO has determined that all of these records are unavailable and all efforts to obtain these records had been exhausted. In various letters, the Veteran and his attorney were apprised as to the efforts made to obtain these records and their unavailability. The Board finds that additional efforts to obtain these records would be futile, and as such, the Board finds that VA has fulfilled its duty to assist in obtaining such records. As the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations, most recently in March 2010. This examination report was rendered by an examiner who reviewed of the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate opinion consistent with and taking into consideration the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his attorney have not contended otherwise. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2011). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He presented testimony before the undersigned in a videoconference hearing in January 2012. Therefore, the duties to notify and assist have been met. Analysis The Veteran essentially contends that he has a current back disability, claimed as degenerative joint disease, due to service. He specifically asserts that he fell backwards from a truck during service thereby injuring his back. The Veteran testified at his hearing that he had had constant back pain since that incident. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). If arthritis becomes manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As will be discussed in detail below, this presumption is not warranted as the evidence does not show that arthritis manifested until many years after service discharge. In this case, there is no dispute that the Veteran has degenerative joint disease of the spine. See e.g. August 2004 VA examination report. Therefore, Hickson element (1) is met. With respect to Hickson element (2), in-service disease or injury, review of the service treatment records shows that in July 1968 the Veteran complained of chest and back pain for six days, which was aggravated by sitting. An impression of no pathology was noted. Additionally, the Veteran has provided competent and credible testimony regarding the incurrence of back pain during service from his fall from a truck. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Accordingly, Hickson element (2) is met. With respect to crucial Hickson element (3), nexus, the question presented, i.e., the relationship, if any, between the Veteran's current hand disability and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). There are several opinions addressing this issue. The Veteran was provided a VA examination in August 2004. Upon review of the claims folder and evaluation of the Veteran, the examiner opined that it was more likely than not that the Veteran's current spine disability was unrelated to the fall in July 1968. In a May 2006 letter, C.N.B., M.D. noted that the Veteran's current back problems were due to his spine trauma in service. The bases for the opinion was that the Veteran entered service fit for duty, he had a major fall in service for which he sought medical attention and from which he had intermittent muscle spasms, radiological evidence shows degenerative disc disease out of proportion to his age without an antecedent injury (the antecedent injury was the service injury), current findings are consistent with a remote fall in service, literature supports a link between trauma to the spine at a young age and development of advanced degenerative arthritis, and there was no other likely etiology in the Veteran's medical records. The Veteran was afforded another VA examination in March 2010. Upon review of the claims folder, evaluation of the Veteran, and extensive review of the medical literature, the examiner opined that the preponderance of the evidence did not support a conclusion that the Veteran's degenerative disk disease is directly or proximately the result of any in-service injury. In addressing Dr. B's citation to medical literature, the VA examiner noted that the referenced text book was over 20 years old and that a more recent edition was now available. The examiner then cited to nearly a dozen medical articles and reference books noting that it was difficult to link lumbar disk disease and trauma as disk disease was very common. It was also noted that hereditary factors, as well as factors including age, gender, occupation, weight, smoking history etc. played an important role in the development of such disability and that the Veteran had a history of smoking. The examiner further noted that because there was no documentation in the service treatment records as to the fall described by the Veteran, such injury was most likely a strain-type injury. It was observed that the Veteran did not seek further medical attention in service and the Veteran reported no more than a minor nagging type of pain afterwards. Given the Veteran's age at service entry (25) and discharge (28), the examiner found that it was extremely unlikely that he would have had degenerative disk disease at that age. Additionally, it was noted that lumbar strains are self limited soft tissue injuries and there was no evidence that strain type injuries caused/predisposed/accelerated the development of degenerative changes in the spine. The examiner found that in order for a direct relationship, the degenerative changes would require a traumatic etiology and degenerative changes increased with age. The examiner also noted that there was an on the job injury in the 1980's, for which the Veteran took six months off of work and received workers' compensation benefits, and the Veteran sought medical care in 2008 after being involved in a motor vehicle accident. While the Board may not reject a favorable medical opinion based on its own unsubstantiated medical conclusions, the Board does have the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). When assessing the probative value of a medical opinion, the access to claims file and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet App 295, 304 (2008). In this case, the Board finds that the March 2010 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file, consideration of the Veteran's reported history, and thorough research of the contemporary medical literature. Additionally, the March 2010 VA examiner provided a detailed rationale for the conclusion reached and addressed the deficiency of the private medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Additionally, he cited to numerous current medical articles and treatises in support of his opinion, and even addressed the literature cited by Dr. B and indicated that such information was outdated as a more updated edition was now available. In light of the foregoing, the Board has placed greater probative weight on the findings of the March 2010 VA examination report that the Veteran's current spine disability is not related to service. As such, the preponderance of the competent evidence weighs against a finding that the Veteran's current spine disability is related to service. The Board acknowledges that it must fully consider the lay assertions of record. In this regard, 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) (noting that 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). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, No. 09-3525 (U.S. Vet. App. June 15, 2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Competency of evidence differs, however, from the weight and credibility assigned to evidence. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination that addresses the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify as to his observations and lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See supra Jandreau at 1376-77; Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, the question of the etiology of the Veteran's spine disability is a question unlike testimony as to the presence of a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of his spine disability as such is not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render an opinion regarding orthopedic or medical issues regarding the etiology of his current spine disability. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, in the present case, the Board gives more credence and weight to the March 2010 opinion rendered by a VA medical doctor. This examiner rendered her findings after extensive review of the claims folder and evaluation of the Veteran. The Board notes that while the Veteran's reports of having pain ever since his service are competent, upon consideration of the evidence of record to include the Veteran's testimony during his hearing before the undersigned, the Board does not find his assertions regarding a continuity of symptoms since service to be credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("In the case of oral testimony, a hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the [V]eteran."); Jones v. Derwinski, 1 Vet. App. 210, 217 (1991) (finding that "the assessment of the credibility of the veteran's sworn testimony is a function for the BVA in the first instance"). Specifically, his contention that he has had spine pain continually since service is contradicted by the findings of an August 1974 examination report which lacks any complaints and physical finding pertaining to the spine. On the contrary, his spine was noted at that time to be within normal limits. Additionally, on the Report of Medical History at that time, the Veteran specifically denied having/having had recurrent back pain. It is significant that prior physical examination of the Veteran likewise revealed normal findings. Despite the Veteran's complaints of continual pain since service, the Board notes that there is no evidence of complaints related to the spine until May 1988, which is over 14 years after service discharge. Supporting medical evidence is required. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) (finding that there must be medical evidence on file demonstrating a relationship between the Veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent). Such evidence is lacking in this case. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). The Veteran indicated that he sought workers compensation and was off of work for six months in 1980 due to his back. Giving the Veteran the benefit of the doubt, the Board finds that this would be on onset of back complaints six years after service discharge. Further, the nature of the workers compensation claim would strongly suggest that the Veteran injured his spine at that time at work. The Veteran's assertions regarding a continuity of symptomatology since service are outweighed by the objective evidence of record. 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 claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for a back disability, including degenerative disc disease of the lumbar spine with right leg radiculopathy, is denied. REMAND Unfortunately, additional remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. The Board notes that the record shows that the Veteran had reserve service from April 1970 to December 1978 and there are both service treatment and personnel records in the claims folder corresponding to his reserve service. However, there is no indication that these dates have been verified, and his dates of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are unknown. On remand, all of the Veteran's reserve duty dates, including ACDUTRA and INACDUTRA dates should be ascertained. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2011). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran essentially contends that he currently has degenerative joint disease of multiple joints related to service. He appears to indicate that his disabilities resulted from falling from a truck during service. Review of the service treatment records is negative for any notations as to an in-service injury involving a fall from a truck, or degenerative joint disease involving the shoulders, hands, and knees. However, the Board notes that the Veteran is competent and credible with regards to his contention that he fell during service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Additionally, on the Report of Medical History in August 1974, during a period of service in the reserves, the Veteran indicated in the affirmative as to the inquiry whether he has or had "trick" or locked knee. Also, post-service treatment records show that the Veteran has been diagnosed with degenerative joint disease of the knees and shoulders. On remand, the Veteran must be afforded an examination to determine the nature and etiology of any current joint disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates that the claimed disability may be associated with in-service injuries for the purposes of a VA examination). Accordingly, the case is REMANDED for the following actions: 1. Contact the appropriate service department and verify the exact dates of the Veteran's service dates, and also confirm the all dates of ACDUTRA/INACDUTRA therein. 2. Schedule the Veteran for an examination to ascertain the nature and etiology of any joint disabilities in the shoulders, knees, and hands. The entire claims file should be made available to and be reviewed by the examiner in conjunction with the examination, and the examiner should confirm that such records were available for review. The examiner must indicate: a. whether the Veteran currently has degenerative joint disease of the shoulders, knees, and/or hands; b. whether there is a 50 percent probability or greater that any of these disabilities are related to service; c. whether there is a is a 50 percent probability or greater that any of these disabilities had their onset during a period ACDUTRA (as verified by the RO) or are otherwise etiologically related to a period of ACDUTRA; d. whether of the disabilities were aggravated beyond the natural progression of the disabilities during a period of active service or ACDUTRA; or e. whether the disabilities are due to an injury during a period of INACDUTRA. In rendering the requested opinion, the examiner must specifically acknowledge and discuss the competent and credible lay evidence regarding the in-service incident of falling from a truck as reported by the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23 (noting that an examination was found inadequate where the 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 examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The report must be typed. 3. Notify the Veteran that it is his responsibility to report for the scheduled VA examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 4. After undertaking any additional development deemed necessary and ensuring that the VA examination report obtained as a result of this Remand complies with the instructions set forth herein, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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. 2011). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs