Citation Nr: 1237346 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 06-39 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1975 to October 1978, from September 1983 to October 1991, and from September 1998 to June 1999. He received the Army Commendation Medal. These matters initially came before the Board of Veterans' Appeals (Board) from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO denied entitlement to service connection for neck and back pain. In his December 2006 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge at the RO (Travel Board hearing). In January 2007, he clarified that he wished to be scheduled for a hearing before a Decision Review Officer at the RO. A hearing was scheduled for a date in August 2007 and the Veteran was notified of the date and time of the hearing in a letter dated in July 2007. This letter was sent to his address of record and was not returned as undeliverable. A copy of this letter was also sent to his representative. The Veteran failed to appear for the scheduled hearing. He has not explained his absence or requested to reschedule the hearing. VA has complied with its duties to afford the Veteran an opportunity for a hearing. In October 2010, the Board remanded these matters for further development. The Veteran had also perfected an appeal with regard to the issues of entitlement to service connection for gallbladder and bilateral knee disabilities. In October 2011, the Appeals Management Center granted service connection for these disabilities, and thereby resolved the appeal as to those issues. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. In his January 2005 notice of disagreement, the Veteran raised the issue of entitlement to service connection for a bilateral foot disability. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran experienced low back pain in service and there is post-service continuity of symptomatology demonstrating a nexus between the current low back disability and the in-service low back symptoms. 2. The Veteran experienced neck pain in service and there is post-service continuity of symptomatology demonstrating a nexus between the current neck disability and the in-service neck symptoms. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(b) (2012). 2. The criteria for service connection for a neck disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). As the Board is granting the claims of service connection for low back and neck disabilities, the claims are substantiated and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 ; 38 C.F.R. § 3.303. Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (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. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between 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")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2012). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b) (West 2002); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A May 2011 VA examination report includes diagnoses of lumbosacral strain, mild degenerative disc disease L5-S1, and degenerative changes/osteophytosis from C3 through C4 with disc space narrowing at C3-C4. Thus, current low back and neck disabilities have been demonstrated. There is also evidence of in-service symptoms of low back and neck disabilities and of a continuity of symptomatology linking the in-service symptoms to the current low back and neck disabilities. The Board notes that the Veteran reported in an August 2005 statement that he had been treated for back pain in November 1978 prior to his second period of service from September 1983 to October 1991. However, 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Veteran is competent to report a history of back pain prior to service. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. However, a veteran's report of history, even when related by a medical professional, without an independent basis in the record, is insufficient to rebut the presumption of soundness. Miller v. West, 11 Vet. App. 345 (1998). The presumption applies in this case, because the Veteran's September 1983 entrance examination was normal and there is evidence of back and neck pain during service. Gilbert v. Shinseki, No. 11-2355 (U.S. Vet. App. Oct. 24, 2013). There is no other evidence that a back disability existed prior to service and was not aggravated. Board concludes that the evidence is not clear and unmistakable that a low back disability existed prior to the period of service from September 1983 to October 1991 and the Veteran is therefore presumed to have been sound. 38 U.S.C.A. § 1111. Service treatment records include December 1987 and November 1990 reports of chronic low back pain. VA treatment records dated from September 2001 to May 2004, the Veteran's February 2004 claim (VA Form 21-526), his January 2005 notice of disagreement, and his August 2005 statement include reports of neck, mid-scapular, and back pain and neck discomfort. The Veteran did not report any acute low back injury, but noted that he had been treated for back pain as early as 1978, that he had jumped from aircraft in service, and that he had been prescribed medication for muscle pain at Fort Bragg from 1984 through 1987. Low back symptoms had persisted ever since service. During an August 2003 VA primary care evaluation, the Veteran reported radiating pain in the left arm and hand. The physician who conducted the evaluation opined that such symptoms were likely, at least in part, related to acute cervical strain from the Veteran's use of a digging tool at work. A physician who conducted an October 2003 VA primary care evaluation noted that the Veteran had been a parachutist while on active duty and that this activity was undoubtedly "part of the etiology of his chronic pain" (including back pain). No further explanation or reasoning for this opinion was provided. Examinations revealed pain in the left trapezius area with left lateral extension of the neck. X-rays and MRIs showed minimal marginal osteophyte formation at the vertebra of L2 and L3 anteriorly from degenerative changes, central disc protrusion at C4 and C6 with spinal stenosis, mild osteophytic ridging at C3 without stenosis, and localized degenerative disc disease and arthritis at C4-C5. Diagnoses of back pain, unspecified degenerative disc disease and degenerative joint disease, degenerative disc disease of the neck, and cervical radiculopathy were provided. During the May 2011 VA examination, the Veteran reported that low back and neck pain had begun in service in 1989. He was given medications in service for the pain which provided effective relief and resolved the neck pain. Ever since that time, he had experienced intermittent low back and neck pain with periods of remission (described as every other month for 3 days with regard to the neck and 4 days a week with regard to the low back). Such symptoms were treated with moist heat, stretching, and medications. Flare ups of low back pain occurred every 1 to 2 months and lasted for 1 to 2 days at a time. He also experienced decreased motion, stiffness, weakness, and muscle spasms. Examination of the low back and neck revealed guarding, pain with motion, and tenderness, decreased ranges of low back and neck motions, and pain on active motion and following repetitive motion. X-rays revealed degenerative changes/osteophytosis from C3 through C5 with disc space narrowing at C3-C4, straightening of the normal lordotic curve of the cervical spine, and mild degenerative disc disease at L5-S1. The Veteran was diagnosed as having lumbosacral strain, mild degenerative disc disease L5-S1, and degenerative changes/osteophytosis from C3 through C4 with disc space narrowing at C3-C4. The nurse practitioner who conducted the May 2011 VA examination opined that the Veteran's current low back and neck disabilities were not likely ("less likely as not") caused by or a result of service. The examiner reasoned that although the Veteran reported that he had participated in jumps from aircraft in service, there was no written documentation of any complaints of a back injury or back pain in his service records. Also, there was no documentation or complaints during the Veteran's discharge examination of any neck problems or pain. He was reportedly able to manage his neck and back pain with over the counter (OTC) medications and had been able to perform his job duties as a county environmental inspector during the previous 15 years with very limited time taken off for illness, despite his low back and neck problems. Thus, the Veteran's claimed conditions were "rejected by the examiner" due to the testimony of the Veteran that his low back and neck conditions/pain were fully relieved by OTC medication. The May 2011 opinion pertaining to the Veteran's current low back disability is inadequate because it is based on an inaccurate history. Although the examiner reasoned that there was no written documentation of any complaints of a back injury or back pain in the Veteran's service records, service treatment records include December 1987 and November 1990 reports of chronic low back pain. As the May 2011 opinion pertaining to the Veteran's low back disability was based, at least in part, on an inaccurate history, it is of little probative value. Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994) (finding that presumption of credibility of evidence did not arise as to medical opinion that a veteran's disability was incurred in service because it was based on an inaccurate history, one which failed to acknowledge an injury well-documented in the record, and hence holding such evidence not "material"); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that presumption of credibility did not arise because physician's opinion was based upon "an inaccurate factual premise" and thus had "no probative value"). The May 2011 opinion pertaining to the Veteran's neck disability is also of little probative value because it was based, at least in part, on the absence of any documentation of neck problems in the Veteran's service treatment records and did not reflect consideration of his report of neck pain in service and since that time. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Moreover, as noted by the Veteran's representative in its September 2012 statement, it is unclear how the remainder of the examiner's rationale (i.e. that the Veteran was able to control his neck symptoms with OTC medications and was able to continue working despite such symptoms) is pertinent to a conclusion that his neck disability was not related to service. The Veteran is competent to report the symptoms of his low back and neck disabilities, such as pain, as well as a continuity of symptomatology. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Although there is no contemporaneous medical evidence of neck symptoms in service or of low back and neck symptoms in the years immediately following service, there is no affirmative evidence to explicitly contradict the Veteran's reports and they are not inconsistent with the evidence of record. The Board therefore finds that his reports are credible. Although the October 2003 opinion that the Veteran's duties as a parachutist in service were undoubtedly part of the etiology of his back pain is of limited probative value because it is not accompanied by any explanation or reasoning, it appears to have been based on an accurate history and supports a conclusion that his current low back disability is related to service. In sum, the weight of the evidence reflects that the Veteran experienced low back and neck pain in service, that he has been diagnosed as having current low back and neck disabilities, and that there has been a continuity of low back and neck symptomatology in the years since service. In light of this evidence and resolving reasonable doubt in favor of the Veteran, the criteria for service connection for the currently diagnosed low back and neck disabilities have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for a neck disability is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs