Citation Nr: 1237190 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 04-42 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a spine disability. 2. Entitlement to an increased rating for chronic nonunion, left navicular fracture (minor left wrist), rated 20 percent disabling prior to October 17, 2008, and rated 30 percent disabling effective October 17, 2008. 3. Entitlement to total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active military service from January 1972 to January 1992. The appeal comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which confirmed and continued the August 2003 denial of service connection for a low back disability, and which continued the previously assigned 20 percent rating for service-connected chronic nonunion, left navicular fracture (a left wrist disability). In April 2005, the Veteran testified at a personal hearing before a Veterans Law Judge (VLJ). The VLJ who conducted the hearing is no longer employed by the Board, and the Veteran indicated that he wished to appear before another VLJ. In June 2012, he presented testimony to the undersigned AVLJ. Transcripts of both hearings have been associated with the claims file. The Board remanded the Veteran's claims in February 2007 and in July 2009 for additional development. Briefly, subsequent to the June 2011 supplemental statement of the case, the Veteran submitted additional evidence with a waiver of RO review. The Board has reviewed the Veteran's physical claims file and file on the "Virtual VA" system to ensure a total review of the evidence. The issues of entitlement to an increased rating for chronic nonunion, left navicular fracture and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's congenital spine disability was aggravated beyond the natural progression of the disease as a result of service, and such aggravation hastened the development of lumbar degenerative changes and stenosis. CONCLUSION OF LAW The criteria for service connection for lumbar degenerative changes and stenosis have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION 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, 1131; 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). Congenital or developmental defects are not considered diseases or injuries within the meaning of applicable legislation pertaining to disability compensation for VA purposes and provide no basis for service connection. See 38 C.F.R. § 3.303(c), 4.9. Therefore, such disorders require more than an increase in severity during service in order to warrant a grant of service connection. The evidence must instead show that the congenital or developmental defect was subject to a superimposed disease or injury during military service that resulted in increased disability. VAOPGCPREC 82-90 (July 18, 1990). In that opinion, the term "disease" was characterized as "any deviation from or interruption of the normal structure or function of any part, or system of the body that was manifested by a characteristic set of symptoms or signs and whose etiology, pathology and prognosis may be known or unknown." A congenital or developmental "defect," however, is not service-connectable in its own right, though service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. The term "defect" was defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." The VA General Counsel explained that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital "diseases" may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. Id. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A pre-existing disorder will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the "correct standard for rebutting the presumption of soundness under Section 1111 requires the government to show by clear and unmistakable evidence that (1) the Veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service." The Federal Circuit noted that the lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progress of the pre-existing condition. See Wagner v. Principi, 370 F. 3d 1089, 1096-97 (Fed. Cir. 2004). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (regarding credibility). 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. 303, 308-09 (2007) (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. The Veteran's September 1971 entrance examination shows that he had a limp but that it was not of the severity to detract from appearance in marching. The consulting physician found that the Veteran had a compensated upper motor neuron lesion of congenital origin. The site of origin is the spinal cord. He was considered qualified for service. A periodic evaluation dated January 1978 notes a congenital hip malformation resulting in a left leg limp. An examination conducted for the initial medical board revealed decreased strength in the left foot and moderate limitation of motion and marked stiffness with moderate limitation of flexion of the left knee. Both conditions were attributed to the congenital condition. A July 1991 service treatment record shows that the Veteran reported hip and back pain. His complaints were not assessed or diagnosed. A July 1998 treatment record from Dr. J.A.B. states that the Veteran had an acute onset of right low back pain while playing golf in June 1998. His past medical history was reported as unremarkable. Lumbar films showed mild degenerative changes. A March 2001 letter from Dr. N.R.F., a neurologist, indicates that the Veteran reported suffering occasional low grade pain prior to his golf injury in June 1999. He said the Veteran had a congenital or hereditary neurological problem affecting his gait and that while he might have cerebral palsy, the degree of worsening of the Veteran's condition is more than he is used to seeing from the effects of age superimposed on cerebral palsy. A May 2001 letter from Dr. J.A.B. states that the Veteran sought treatment with him in July 1998 for acute right low back pain which occurred while playing golf. He assessed lumbar strain of attachment of the musculature to the right iliac crest and possibly cerebral palsy. In March 1999, the Veteran reported right lower extremity pain, and he was assessed with mild stenosis of L4-5 with foraminal stenosis, which was moderate to severe. Also found was advanced facet arthrosis at L4-5 and L5-S1. The impression was facet arthrosis producing low back pain with foraminal stenosis producing radicular pain. Subsequently, the Veteran had injections and surgical intervention. Dr. J.A.B. indicated that the Veteran has long-standing upper motor neuron disorder, possibly a diplegic cerebral palsy pattern with subsequent facet arthrosis L4-5 and L5-S1 caused by the abnormal gait, which led to foraminal stenosis and nerve root compression. A March 2003 letter from Dr. J.A.B. states that he had treated the Veteran since 1998 for advances degenerative changes of the lumbar spine. He said the Veteran has underlying diplegic pattern of cerebral palsy which has produced a lifelong gait abnormality. He said that the condition predisposed the lumbar spine to accelerated wear and that the Veteran's service exacerbated the back pain. In November 2003, Dr. J.A.B. opined that a portion of the Veteran's problems stem in part from his 20 years of service. The Veteran submitted buddy statements from friends and colleagues who attest to being aware of his back pain during service. In his April 2003 claim, the Veteran said he started having back problems in 1986 at which time he started feeling stiffness and occasional shooting pain. He treated his condition with non-steroidal anti-inflammatory drugs. By 1989, he could tell that he had lost some mobility. During his April 2005 hearing before the Board, the Veteran testified that he started having back spasms after 13 to 14 years in service. During that time he sought treatment with private providers so that his military career would not be impacted by his condition. He reported pain to the physician conducting his retirement examination. In September 2009, Dr. J.A.B. submitted a letter stating that the Veteran has a diplegic pattern of cerebral palsy and that his multiple years in service, which required going to sea on small vessels and suffering the rolling and pounding from the ship, exacerbated his problem by placing unusual stress on the lumbar spine. He opined that the Veteran's duties as a vessel inspector also placed undue stress on the spine. In his opinion, the stresses the Veteran suffered during service and in his capacity as a vessel inspector contributed to the degeneration of his spine causing worsening of his degenerative condition beyond that expected of a normal person. In a September 2009 letter, Dr. D.B.H., the Veteran's primary physician, indicated that he had reviewed records dating back to 1971 and noted that the Veteran was accepted to service with a slight limp. He said service treatment records did not note a congenital disease other than saying he had "drop foot." He stated that Coast Guardsmen who spend a career at sea must compensate for the severe pounding and rolling of the boats while underway in inclement weather and/or heavy seas. Such conditions place unusual stress on the lower extremities and their joints. He also opined that the duties required of a commercial vessel inspector would put unusual stress on the back, hips, and lower extremities. Dr. D.B.H. opined that the physical requirements of the Veteran's Coast Guard career would result in worse than normal deterioration of his back, hips, knees, joints and legs. During his June 2011 VA examination, the Veteran reported having suffered severe back pains radiating down his legs in 1986. He said the wear and tear of being on a boat put heavy strain on his back. The nurse practitioner diagnosed spinal stenosis and opined that the Veteran had a congenital defect of the hips and spine and that while the condition was aggravated by service, the condition was not aggravated beyond the natural progression of the disease. She said that the condition was aggravated because at entry, he was found medically fit for sea duty, and the Veteran reported being in excellent physical condition in September 1971. She pointed out that the Veteran served 20 years with the Coast Guard and worked a civilian job until 2003 and that, had the congenital condition been aggravated beyond a natural progression, the Veteran would not have been able to maintain his military duty or gainful employment as a civilian for over 30 years. She concluded that the congenital hip and back condition was not aggravated beyond its natural progression due to service. In a July 2011 opinion letter, Dr. J.A.B. stated that the Veteran's condition worsened beyond the natural progression of the disease due to service and that, had he worked a non-sea-going duty such as an office-type position, his condition would not have worsened to the current degree. In June 2012, the Veteran appeared before the Board and testified as to all of the evidence previously discussed. In an August 2012 letter, Dr. D.B.H. said he essentially had access to all information in the claims file and opined the Veteran's twenty years of service more likely than not caused him to be far more debilitated than if he had not experienced such harsh duties. In an August 2012 letter, Dr. J.A.B. said that he has reviewed records dating back to 1971, including some service treatment records and records from the Veteran's private providers. He noted the Veteran's mild case of cerebral palsy, which pre-existed service, and opined that his twenty years of service exacerbated or worsened the lumbar spine condition beyond the natural cause of the disease, or beyond what he would expect from a person that did only sedentary work. In this case, the evidence shows that the Veteran has a congenital condition of the hips and spine and that, by their very nature, congenital conditions exist at or prior to birth. Thus, the Board finds that the Veteran's condition clearly and unmistakably pre-existed service. The Board also notes that this condition was characterized as a defect by the examiner who conducted the June 2011 VA examination. Accordingly, the finding of aggravation of the defect by service would not, in and of itself, be sufficient to grant service connection. This determination does not end the Board's inquiry, however. Private treatment records from Dr. J.A.B., dating since July 1998, indicate degenerative changes of the lumbar spine. Subsequent treatment records also confirm stenosis of the lumbar spine. Dr. J.A.B.'s statements consistently reflect that the stresses of service upon the Veteran's preexisting condition predisposed him to a degree of disability of the lumbar spine beyond its natural cause. By all indications, Dr. J.A.B. reviewed sufficient portions of the claims file to make an informed assessment about the effects of service on the Veteran's condition. The statements from Dr. D.B.H. are consistent with this, and this doctor also had access to relevant portions of the claims file. The Board has also taken into account the Veteran's very lengthy period of service. All of this evidence reflects that aggravation of the congenital defect during service hastened the development of lumbar degenerative changes and stenosis. Overall, the Board finds that the Veteran's currently diagnosed lumbar degenerative changes and stenosis are proximately due to the aggravation beyond natural progression of his congenital spine defect. For that reason, and in light of VAOPGCPREC 82-90, the Board finds that the evidence supports service connection for this disorder. The claim is thus granted. The United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for a lumbar spine disability, encompassing degenerative changes and stenosis, is granted. REMAND The Veteran seeks an increased rating for chronic nonunion, left navicular fracture (minor left wrist), rated 20 percent disabling prior to October 17, 2008, and rated 30 percent disabling effective October 17, 2008. In October 2011, the Veteran's representative indicated that his left wrist condition had deteriorated. Therefore, since the Veteran asserts that his left wrist condition has worsened, the Board finds that a remand is warranted to schedule a VA examination to determine the current severity of the left wrist disability. The Board has considered whether this appeal raises a claim of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation). Per the Veteran's testimony in June 2012, without consideration of his now service-connected spine disability, he would have difficulties obtaining and maintaining substantially gainful employment due to his service-connected left wrist disability. See Transcript, p. 17. The evidence submitted in support of the service connection claim for the spine specifically states that the Veteran is unemployable due to his spine disability. Accordingly, the Veteran should be provided with appropriate notice as to how to substantiate a claim for TDIU and afforded a general medical examination. The examiner is asked to render an opinion as to whether it is at least as likely as not (fifty percent or greater) that the Veteran's service connected disabilities alone, without reference to any non-service connected disabilities, prevent the Veteran from maintaining substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with 38 C.F.R. § 3.159(b) notice regarding his claim for TDIU, and ask him to identify any outstanding VA or private treatment records pertaining to his service-connected disabilities. 2. Schedule the Veteran for a VA orthopedic examination to determine the nature and severity of his service-connected left wrist disability. The claims file (with all relevant Virtual VA documentation) and a copy of this remand must be provided to the examiner, and he or she must indicate review of these items in the examination report. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Range of motion testing (in degrees) must be conducted. When citing range of motion, the examiner should clearly state at which degree pain begins. The examination report should include findings consistent with criteria of DeLuca v. Brown, 8 Vet. App. 202 (1995). The examiner should also indicate whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, to include his left wrist disability, actinic keratosis and scars, and his lumbar spine disability. All opinions must be supported by a complete rationale in a typewritten report. 4. Then, readjudicate the Veteran's claims on appeal, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). Allow an appropriate period of time for response. The Veteran has the right to submit additional evidence and argument on the 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 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). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs