Citation Nr: 1300306 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-22 397A ) DATE ) MERGED APPEAL ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for a back disability, encompassing the thoracic and lumbosacral spinal segments. 2. Entitlement to service connection for a lung disorder. 3. Entitlement to service connection for a hiatal hernia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from July 1976 to October 1976, and from October 1978 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In June 2010, the Veteran testified at a hearing conducted before a Decision Review Officer (DRO) at the RO. A transcript of those proceedings has been associated with the claims folder. The issues of entitlement to service connection for a lung disorder and for a hiatal hernia 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 A back disability, encompassing the thoracic and lumbosacral spinal segments, was first demonstrated several years after the Veteran's discharge from active duty and is unrelated to such service. CONCLUSION OF LAW A back disability, encompassing the thoracic and lumbosacral spinal segments, was not incurred in or aggravated by service, and arthritis of the thoracolumbar spine may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a letter dated in November 2008, prior to the initial adjudication of the claim, the RO advised the claimant of the information necessary to substantiate the claim for service connection for a back disability, and of his and VA's respective obligations for obtaining specified different types of evidence. He was advised of various types of lay, medical, and employment evidence that could substantiate his service connection claim. He was also provided with information regarding ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Under the VCAA, the VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). In this case, VA obtained the Veteran's service treatment records and post-service VA treatment records, the most recent of which are included in the Veteran's Virtual VA file. State Department of Corrections medical records were obtained. Requests were made to St. Joseph's Hospital for records of the Veteran's claimed treatment, but the hospital responded that there was no record of the Veteran having been treated at that facility. He has not authorized the release, or provided copies, of any other records of private post-service treatment. Concerning the service connection issue decided in this decision, an opinion is not warranted, because, as discussed below, there is no credible evidence of a back disability or injury in service. Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (which stipulates that, where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required.). Thus, the Board finds that all necessary development has been accomplished and that therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Moreover, there is no possibility that any additional notice or development would aid the appellant in substantiating his claim, and any deficiency of notice or of the duty to assist constitutes merely harmless error. 38 U.S.C.A. §§ 5103, 5103A (West 2002). II. Service Connection For A Back Disability Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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 manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that he has a back disability which began while he was in service. To establish service connection, a Veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The first element, existence of current disability, is clearly established by VA treatment records, including December 2008 X-rays which reveal mild degenerative changes in the lumbar and lower thoracic spine as well as September 2010 and May 2011 magnetic resonance imaging (MRI) scan reports which show prior hemilaminectomy at L5-S1. There was also a suggestion of scar tissue and/or disc protrusion with a degenerative annular tear, which contacted the left S1 nerve root without definite compression. As to the remaining elements, in his original compensation claim received in November 2008, the Veteran claimed service connection for disabilities including lower back strain, which he said began in basic training in the 1970's. He indicated that he received treatment in service. At the June 2010 DRO hearing, the Veteran said that he had back problems from lifting artillery rounds during his first period of service, in 1976. He said he went to sick call and was told that it was just the muscles. But, the muscles never straightened out, and the problem continued. He said he was given a physical fitness waiver to graduate from basic training. He said that he was having back problems. He said he was seen at the Denver VA Medical Center (VAMC) in about 1977, or possibly 1979 or 1980, for his back. He said his physical fitness waiver continued until his discharge in 1979. Service personnel records show that his occupational specialty was that of a cannoneer. Service treatment records, however, do not show any complaints or abnormal findings concerning the back. On an "overseas" examination in October 1978, the Veteran denied a history of recurrent back pain. This is inconsistent with his history of a back disability beginning during basic training in 1976. Moreover, service treatment records do not show any complaints concerning the back during his period of active duty from October 1978 to October 1979, and there is no indication that any type of fitness waiver or profile was issued due to back problems. Subsequent evidence indicates that the Veteran did not file a claim for service connection for a back disability until 2008, approximately 29 years after service discharge. In this regard, the Board observes that VA treatment records dated from June 1980 to August 1981 do not show complaints or abnormal findings pertaining to the back. In August 1980, he was in an auto accident, but his complaints, while including the head and right shoulder, did not refer to the back. Department of Corrections medical records dated from May 1990 to December 1995 note, in a May 1990 transfer summary, that his current diagnoses/problems included chronic low back pain due to disc problem. Back complaints were noted on numerous subsequent occasions, although X-rays in July 1990 and November 1991 were normal. In November 1994, he complained of back pain, but the back was normal on examination. On a VA enrollment examination in August 2007, there were no complaints or findings concerning the mid or lower back. In September 2008, he was seen for pains throughout the body, including the lower back, with no history noted. These records prior to the Veteran's November 2008 claim do not contain any histories relating the onset of a back disability to service, nor do they report any history of an injury or back problems during service. He did, however, report numerous post-service injuries. There is considerable mention in the file of the Veteran's being a poor historian. For example, in February 1993, it was noted that it was difficult to get an accurate history. In July 2010, it was noted that the Veteran's complaints initially focused on back pain, but they progressed rapidly and nonstop as he described one symptom leading to and affecting and building on another. It was noted to be "basically impossible to focus on any single area of pain complaint long enough to arrive a working diagnosis to proceed with." Some complaints did include thoracic back pain since 1967 [sic; presumably, this is meant to read 1976], which he said started while handling artillery shells in the Army. In August 2010, it was noted to be "nearly impossible to get things separated out or fully clarified." This difficulty is also evident in the July 2010 hearing transcript. However, by carefully reviewing the various histories, a number of specific claimed injuries can be identified. A VA record dated in September 2008 noted that he said his pains had started in 1981. In July 1990, he reported a history of a fall. In May 1990 and June 1993, he reported that he had fallen on his head 300 feet. On a VA orthopedic consult in December 2008, it was noted that he had a history of a fall off a mountain. These complaints can be consolidated into a single injury, reported by the Veteran in March 2009 as having occurred in 1981 when he was mining. He elaborated at that time that he had fallen 350 feet down a mountainside, sustaining injuries including ruptured discs in his back. Thus, the Veteran claims that in 1981, after service, he injured his back in a fall of a considerable distance down a mountainside. In addition, a number of motor vehicle accidents have been reported. In a July 1990 Department of Corrections record, he reported a prior history of at least one car accident. At that time, a report of a chronic backache since an auto accident in 1981 was reported. It was also noted that he had had another accident the previous year, in 1989. He said that he had worn a TENs unit from May to October 1989, and that he had worn a back brace for 5-6 months. In November 1991, he reported chronic low back pain, with disc problems, due to motor vehicle accidents, which he said had occurred in 1981, 1983, and 1989. In his July 1990 history of back pain, the Veteran also reported that he had been shot twice. In December 1992, he said that he had been shot in the back, rupturing a disc. In May 1993, he complained of low back pain, stating that he had slipped and fallen in the shower. Notwithstanding the number of complaints and severity of claimed injuries, the record shows only mild objective abnormalities, however. The Department of Corrections records show that, despite complaints of chronic pain, disc problems, muscle spasms, and the history of motor vehicle accidents, gunshot wounds, and a fall down a mountain, X-rays were normal, and, in November 1994, the Veteran's back was normal on examination. When seen at the VA in August 2007, for an enrollment examination, he did not mention any complaints regarding the back. In November 2008, the Veteran's original compensation claim was received. A VA primary care note in December 2008 reported that the Veteran "now" brought up the issue of chronic back pain in the thoracic and lumbar levels since trauma in 1974 and 1981. He said that he was treated with 2 weeks of traction in a hospital in 1981 when he refused surgery for "ruptured discs." He described variable but constant lumbar pain. Concerning the musculoskeletal symptoms, with stated multiple traumas, the primary care provider noted that his reported lifestyle and activity level (to include working mining claims in the Black Hills) would seem to belie the level of pain and discomfort he manifested in the clinic. Also, imaging studies to date had reported only minimal findings and no evidence of significant trauma residuals. VA records indicate that in May 2009, the Veteran was in another motor vehicle accident, in which he sustained injuries necessitating lumbosacral spine surgery, performed at a private hospital in October 2009. At the June 2010 hearing, he indicated that he already had a chronic back condition at the time of that accident, and the Board agrees that at least some chronic back disability was present prior to that injury. Not only was there a considerable history of back pain by that time but mild degenerative changes had been shown on X-rays in December 2008. While most of the subsequent treatment records pertaining to the back concern complaints related to the May 2009 accident and subsequent post-surgical residuals, including recurrence of back pain, a history of back pain prior to the injury was also reported. Since then, he was in another motor vehicle accident, in November 2011, although it appears from the records that this involved primarily the cervical spine. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, in such cases, the Board still must weigh that testimony and make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). In determining credibility, 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, 510-511 (1995). A monetary interest may also affect the credibility of a claimant's testimony. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Here, the Veteran has consistently reported numerous injuries to his back which occurred after service. Moreover, no report of an in-service back injury is noted in the service treatment records, nor does the record contain any mention an in-service back injury prior to his claim. Although an appellant's testimony cannot be rejected simply because it was not reported contemporaneously to service, or noted in the service medical records, the Board still must determine whether lay evidence is credible, in light of factors such as possible bias or conflicting statements, and the absence of contemporaneous medical evidence is a factor that may be weighed against the lay evidence of record. See Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (Fed. Cir. 2006) In this case, there are several instances in which the Board does not find credible the Veteran's statements purporting to associate back problems with service. For example, when seen at the VA from June 1980 to August 1981, he did not report any back complaints. He had been discharged from service in October 1979, and he testified that he was seen at that facility for his back problem at around that time. Records of treatment from 1990 to 1995, during an incarceration, do not report a history of an in-service back injury or disability, despite numerous references to back pain and other prior injuries. In the detailed medical history obtained when enrolling with a VA treatment provider in August 2007, he did not report a history of a back disorder. His complaints, which included back pain, reported in September 2008, included a history of onset in 1981, which was over a year after his 1979 discharge from service. Even in his December 2008 evaluation for back pain, he related the onset to trauma in 1974 (before service) and 1981 (after service). At that time, he did not provide any more information concerning the purported 1974 injury, and the health care provider reported that there was no evidence of significant trauma residuals. In sum, the Board finds that records created closer in time to the events in question are more probative than later records. In addition, statements made in a therapeutic context are generally more credible than statements made in connection with a claim for monetary benefits. In this case, the most probative evidence, which includes histories given on many occasions over the years, establishes that the onset of the Veteran's low back disability, which was mild prior to the May 2009 accident, was no earlier than 1981. In this regard, although the record contains reports of many injuries, nearly all of the histories obtained from the Veteran up to, and even slightly after, the date of his claim relate the onset to an injury in 1981, although the nature of his injury has varied from a motor vehicle accident to a fall down a mountainside. Given these factors, the Board finds that the Veteran's statements concerning service inception and continuity of symptomatology are not credible. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, because the Board does not find the evidence of in-service injury or continuity of symptomatology to be credible, an examination or opinion is not required. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (which stipulates that, where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). Simply stated, there is no competent and credible evidence of record associating a current back disability to service. Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for a back disability. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the claim is denied. 38 U.S.C.A § 5107 (West 2002 & Supp. 2012). ORDER Service connection for a back disability, encompassing the thoracic and lumbosacral spinal segments, is denied. REMAND The Veteran contends that, as a result of his proximity to a gun powder explosion or blast during service, he has lung scarring, which has resulted in lung damage with symptoms including a chronic cough and obstructed breathing. He maintains that VA treatment records show lung scarring related to this incident. Service treatment records do not show the incident as described by the Veteran. However, chest X-rays taken in March 2012 reveal a dense nodule in the right mid lung, likely granuloma, unchanged, indicating it had been found previously as well. According to the July 2012 CT scan report, there was a calcified right lower lobe granuloma. A granuloma is sometimes described as a type of scar on the lungs. In view of these factors, the Board finds that an examination should be provided to determine whether the granuloma is related to service, and, if so, whether there is resulting disability. In addition, the representative has argued that the Veteran's current COPD may be related to the gunpowder explosion. Although the Veteran indicated, in October 2010, that the RO had mistakenly considered his claim as for service connection for COPD, he said that he did not have COPD, but rather lung scarring which created an obstruction in his lungs. He states that his air tubes are blocked by scar tissue of the lungs. However, this is not a matter subject to lay observation, and the Veteran does in fact have a diagnosis of COPD. Moreover, although identifying the issue as "lung scarring," the RO has coded the issue on the rating sheet to include COPD. In view of these factors, the examination should include whether COPD is due to the claimed in-service gunpowder explosion. With respect to the hiatal hernia claim, this claim was denied by the RO in the July 2009 rating decision. The Veteran did not include this issue in his February 2010 notice of disagreement (as to his back claim). However, at the DRO hearing in June 2010, he said he still had a hiatal hernia, which was from the military. The DRO noted that this claim had been previously denied, and told the Veteran that he could have that reconsidered. Accordingly, the Veteran submitted a statement received in June 2010, stating that he wanted the hiatal hernia disability reconsidered. The RO again denied the claim in August 2010, and the Veteran submitted a notice of disagreement with that decision later that month. However, a statement of the case addressing this issue has not been furnished. He must be furnished with a statement of the case, and provided with an opportunity to perfect the appeal as to that issue. See Manlincon v. West, 12 Vet. App. 238 (1999) (where a notice of disagreement has been filed with regard to an issue, and no statement of the case has been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case). Additionally, the Board finds that the June 2010 request for reconsideration should be construed as a notice of disagreement with the July 2009 rating decision, because it was timely, and expressed dissatisfaction with the July 2009 rating decision. See 38 C.F.R. § 20.201 (2012). Although it did not expressly request appellate review, it must be noted that the Veteran was using language recommended by the DRO, who did not advise him of any other options. Further, the Veteran was unrepresented at the time of the hearing and "reconsideration" request, and, according to his testimony, he apparently did not even recall that he had filed a claim for service connection for hiatal hernia, let alone that he had received a decision. Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran and his representative with a statement of the case concerning the issue of entitlement to service connection for hiatal hernia. The Veteran and his representative should also be informed of his appeal rights and of the actions necessary to perfect an appeal on this issue. This issue should only be returned to the Board if the appeal is perfected. 2. Accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of his lung condition. His claims file, including a copy of this Remand, must be made available to the examiner for review in conjunction with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that his COPD and granuloma in his lungs-as well as any other lung disorder diagnosed on examination-had its(their) clinical onset in service or is(are) otherwise related to service. If only one of these conditions is found to be of service onset, the examiner should identify the symptoms associated with that condition. In providing this(these) opinion(s), the examiner must give due consideration to the Veteran's contentions that he was exposed to a blast from a gunpowder explosion in service, and that this caused his lung conditions. The opinion should not be based solely on the absence of a report of the incident it the service treatment records. The claims folder, to include access to the Veteran's Virtual VA folder, which contains VA treatment records dated from September 2010 to August 2012, must be furnished to the examiner in conjunction with the examination. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 3. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 4. Thereafter, readjudicate the issue of entitlement to service connection for a lung disorder. If the claim remains denied, the Veteran and his representative should be provided with a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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 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. 2012). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs