Citation Nr: 1300339 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 06-21 018 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to an increased rating for the residuals of a fracture of the right distal radius and ulnar styloid process, currently rated as 10 percent disabling. 3. Entitlement to an initial rating in excess of 10 percent for right carpal tunnel syndrome (CTS). 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 5. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance. 6. Entitlement to disability pension and special monthly pension (SMP) based on the need for regular aid and attendance. REPRESENTATION Veteran represented by: Kathy A. Lieberman, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran had active service from October 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of April 2003, April 2006 and June 2009 rating decisions by the RO in Roanoke, Virginia. In a February 2009 decision, the Board denied entitlement to service connection for a back disability, entitlement to an evaluation in excess of 10 percent for the residuals of a fracture of the right distal radius and ulnar styloid process, and entitlement to a TDIU rating. The Veteran appealed the February 2009 decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2010 Order, the Court granted a September 2010 Joint Motion for Remand (JMR), vacated the Board's February 2009 decision, and remanded the case for compliance with the directive stipulated in the JMR. The Board remanded those claims for additional development in March 2011 and they return now for appellate consideration. The issue of an initial rating in excess of 10 percent for right CTS was appealed from the April 2003 rating decision. The Board remanded this issue for a Statement of the Case pursuant to the rule of Manlincon v. West, 12 Vet. App. 119 (1998). The appeal as to the CTS rating has been perfected by a timely September 2011 Substantive Appeal following a July 2011 Statement of the Case. The issues of SMC and disability pension and SMP arise from a June 2009 rating decision. Furthermore, the Veteran testified at a March 2005 hearing at the RO and testified before a Veterans Law Judge (VLJ) at a November 2007 hearing in Washington, D.C. Copies of the transcripts of the aforementioned hearings are of record. The VLJ who conducted the November 2007 hearing has retired from employment at the Board. The Board notes that the Veteran was not specifically notified that the VLJ retired but has been offered another opportunity to testify before the Board. The Veteran's previous representative requested a videoconference hearing before the Board in connection with the SMC claim. The Veteran switched representatives and postponed the hearing in March 2012. The Board contacted the current representative in October 2012 to determine whether the Veteran still wanted a hearing. The representative responded in November 2012 that the Veteran wished to proceed on the evidence of record, with no new hearing. The Board will proceed on the appeal. In this regard, it is important for the Veteran to understand that the undersigned has reviewed the transcript of the prior hearing. The issues of an increased rating for radius and styloid process fracture residuals and for right wrist CTS and for TDIU and SMC are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT A low back disability was not manifested during active service or for many years thereafter, nor is current low back disability otherwise related to such service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this case, the Veteran contends that while he was in the military, he injured his back. He maintains that his back disability, currently diagnosed as degenerative joint and degenerative disc disease, is related to his claimed in-service back injury. For the reasons that follow, the Board finds that the Veteran's current disability is not related to any incident of service and was not manifest to a compensable degree within one year of separation. The Board concludes that service connection is not warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may 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). In order to establish service connection for the claimed disorder, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Private medical records from the Veteran's previous employment show that in November 1971, it was noted that the Veteran had chronic low back pain for two years. As noted above, the Veteran had active service from October 1965 to November 1967. Therefore, this report clearly indicates a problem that began after service ended, sometime in 1969, providing highly probative evidence against this claim. Additional private medical records reflect that in June 1975, he was diagnosed with herniated disc at L-5, and underwent a lumbar laminectomy with excision of the herniated disc. He subsequently underwent lumbar disc surgeries in 1980, 1981, 1984, 1986, and 1996. An August 2008 VA examination report states that he was diagnosed as status postoperative lumbosacral vertebra with x-rays showing extensive degenerative joint and degenerative disc disease. The current disability element is well-established. See Hickson. The Veteran testified before the Board in September 1987 that in January 1966, he was at a firing range when he slipped and fell on his back and leg while stationed at Fort Dix. He notes that the next day, he could not get out of bed. According to the Veteran, when he was finally able to stand, he went to the hospital where he was examined and sent back to duty. He reports that due to the in-service back injury, he developed chronic pain in his back. The Veteran's service treatment records are negative for any complaints or findings of a back disability or injury. The records do reflect that in January 1966, the Veteran was treated for pain in the left upper femur area after falling in a ditch the previous day. An x-ray was reported to be negative and it was noted that the Veteran had a bruise. The Veteran has also submitted a series of letters sent during service between him and his family. To the extent that they are relevant, a July 1967 letter from the Veteran states that his back hurt. A service Report of Medical Examination dated in August 1967 for separation purposes reflects that the Veteran's spine and other musculoskeletal were clinically evaluated as normal. A service Report of Medical History dated in August 1967 for separation purposes reflects that the Veteran checked the 'no' box for recurrent back pain. There are no other service treatment records related to the back. A 2011 search for additional inpatient records from the Fort Dix base hospital recovered nothing. In light of the above, although the Veteran's service treatment record are negative for any complaints or findings of a back disability or injury, they do show that he fell in January 1966 and developed pain in his left upper femur area. In addition, the Veteran is competent as a layperson to report that on which he has personal knowledge, which would include the claimed in-service injury and his subsequent pain in his back. See Layno v. Brown, 6 Vet. App.465, 470 (1994). Thus, the Board accepts as true that the Veteran injured his back during service and subsequently developed recurrent back pain. VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. The VA needs to identify a disability, not symptoms of a disability. The Veteran's mere complaints of pain are not tantamount to incipient disc disease that began during service and exist to this day. The Veteran left service in November 1967 and sought to return to employment with Hercules Incorporated. The company kept medical records on its employees; the Veteran's records have been associated with the claims file. The Veteran had a December 1967 re-examination in which he was found fit for employment with an "A" physical rating. He was noted to have a weak hand secondary to fracture of his wrist. The report was detailed. The first records showing chronic low back pain are dated in 1971. A November 1971 entry shows that the Veteran had chronic low back pain over the previous two years. A December 1971 letter from Dr. C.F.W. reflects that the Veteran reported that he first injured his back two or three years earlier, and then again in November 1971. This indicates a back injury in 1968 or 1969, after his 1967 separation from service and well after the January 1966 injury which the Veteran now claims caused his back disability. In effect, the Veteran has supplied at this time factual evidence against this own claim of high probative weight, indicating a problem that began well after service. In a June 1975 letter from Dr. J.D.V., it was noted that the Veteran underwent a lumbar laminectomy with excision of a herniated disc at L-5 on the left in May 1975. Dr. J.D.V. diagnosed herniated disc, L-5, left. Private medical records from Dr. J.D.V. dated in April 1980 reflect that the Veteran underwent a partial hemilaminectomy, L-4 and L-5, right, and excision of disc at 4. The examiner diagnosed herniated disc, L-4, right. In July 1981, the Veteran underwent a partial hemilaminectomy L-4 right, excision of disc with magnification. Dr. J.D.V. diagnosed recurrent disc L-4 right. In December 1984, the Veteran underwent a partial hemilaminectomy L-3, left, with excision of disc with microdissection. Dr. J.D.V. diagnosed herniated disc L3. In April 1986, the Veteran underwent a partial hemilaminectomy, L-3, L-4 and L-5 on the left with excision of disc at L-3 and L-5 with micro dissection. Dr. J.D.V. diagnosed recurrent disc at L-3, possibly L-5, left. Private medical records from Dr. J.A.F. dated in May 1996 reflect that the Veteran underwent a left L3-4 laminotomy with lysis of epidural adhesions and excision of recurrent disc herniation. Dr. J.A.F. diagnosed recurrent left L3-4 disc herniation with epidural fibrosis, multi-level spondylosis, post laminectomy syndrome. In August 2008, the Veteran underwent a VA examination. At that time, he was diagnosed as status postoperative lumbosacral vertebra with x-rays showing extensive degenerative joint and degenerative disc disease. The examiner opined that the Veteran's currently diagnosed back disability was not related to or caused by any problems he had while on active duty. However, the rationale for the examiner's opinion was that there was no documentation of any back injuries or back problems noted in the Veteran's service treatment records. During the course of this appeal, the Veteran submitted copies of treatment records for his siblings. These records show that they all developed back disabilities. The Board does not find this persuasive evidence as it suggests that the Veteran's family history shows that a back disability was likely even in the absence of military service, in effect providing some highly limited evidence against this claim. The Board remanded this case in March 2011 in part for a new VA examination. He was seen in January 2012. The Veteran was again diagnosed with degenerative joint and disc disease status post multiple surgeries. The examiner reviewed the claims file. The examiner found that the current disability was not at least as likely as not related to the Veteran's claimed back injury during service. The examiner pointed to the lack of treatment records showing a back injury or back pain, the Veteran's denial of recurrent back pain at separation in 1967 and normal clinical examination and to Dr. C.W.'s statement that the Veteran had a back injury in 1968. The Board finds that the preponderance of the evidence is against a relationship between the Veteran's present back disability and any incident of service. The Veteran is not competent to relate etiologically his present disability to any incident of service. Ongoing pain may not result in the present back disability; the Veteran has no way of knowing that. He has not stated that a medical professional related them together. At best, the Veteran offers a post hoc rationalization; he had pain since the 1966 fall, so the two must be related. The Board simply cannot accept this as sufficient for service connection. No medical evidence of record relates the present disability to the 1966 fall. The 1971 entry related back problems to a post-service injury. The VA examination opinions are similarly against the claim. The Board emphasizes that the purpose of the separation physical examinations is to elicit disabilities which may have been incurred inservice. The 2008 and 2012 opinions focus on that report because no disability was discovered when one should have been. Similarly, the Veteran was seen for a private physical just after separation which found his wrist disability but not a back disability. The Board finds that the contemporaneous physical evaluations and the medical opinions finding the back disability not related to an inservice fall greatly outweigh the Veteran's incompetent contentions. The Board concludes that service connection is not warranted on a direct basis. See Hickson. Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and degenerative joint disease becomes manifest to a degree of 10 percent within 1 year from date of termination of such 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. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. While the Veteran has been diagnosed with degenerative changes of the spine, the earliest identification of such changes by x-ray was not until decades after his separation from service. The Board concludes that the presumption is not applicable. As such, the Board finds that the preponderance of the evidence is against the Veteran's back disability claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Compliance with the first Quartuccio element requires notice of the five service connection elements for service connection. See 38 U.S.C. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). Prior to initial adjudication of the Veteran's service connection claim, a February 2003 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. In March 2006, the Veteran was provided with notice of the types of evidence necessary to establish a disability rating and the type of evidence necessary to establish an effective date. See Dingess. Although this letter was not sent prior to initial adjudication of the Veteran's back disability claim, this was not prejudicial to him, since he was subsequently provided adequate notice in March 2006, he has had more than six years to respond with additional argument and evidence and the claim has been readjudicated repeatedly, most recently in an additional supplemental statement of the case (SSOC) provided in February 2012. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Board also concludes VA's duty to assist in obtaining records has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The September 2010 JMR instructed that VA conduct a search of the Fort Dix base hospital clinical records in connection with his back disability claim. The Board notes that clinical records of the type maintained in clinical record libraries at service department hospitals are for inpatient treatment. The Veteran did not allege and the evidence did not otherwise suggest that he had been hospitalized following his alleged in-service back injury. On the contrary, he testified that he went to the hospital, went through an evaluation and was sent back to his unit. In short, the Veteran was not hospitalized. Because of this, there was no reason to suspect that the clinical record library at the Fort Dix base hospital would contain any relevant information. However, the Board is required to conduct all development agreed to by a JMR. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Thus, the Board remanded in March 2011 for a records search. The RO sent a request for Fort Dix base hospital inpatient clinical records search through the Personnel Information Exchange System (PIES) in September 2011. Following a search, a PIES response indicated in October 2011 that the Fort Dix hospital records for 1966 had been conducted and that no conforming records were located. The Veteran's representative objects to this development and insists that remand is necessary to conduct an adequate search. In a July 2012 submission, she provides a copy of a public document to the effect that a set of Army hospitals, including Walton Army Hospital at Fort Dix, which had clinical record libraries where records may be kept longer than normal and may be available. She contends that this requires a specific search of Fort Dix hospital records not a general PIES search. The Board has reviewed the contention and finds it misplaced. First, the document on which the representative relies pertains to inpatient treatment in the mid 1950's. The document is meant to assist in records development for those veterans affected by the 1973 NPRC archive fire which destroyed records for certain veterans separating between 1912 and 1960. This is simply not relevant to the instant case. Second, all military hospitals, even if they have clinical records libraries, do retire records to the NPRC on a regular schedule. Importantly, the PIES response indicates that the Fort Dix hospital records were actually searched. The Board finds that the search conducted on remand was adequate to uncover any outstanding inpatient records from the Fort Dix base hospital. No such records were found. The Board finds that the remand instruction was complied with substantially. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). If VA provides a claimant with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The Veteran was afforded a 2012 medical examination to obtain an opinion as to whether his back disability was the result of the January 1966 back injury. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history and listened to the Veteran's assertions. The examiner laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. See Nieves-Rodriguez. The Board is obligated by law to ensure that the RO complies with its directives; 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. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded the service connection and initial rating issues in March 2011 for additional development. The Board instructed that an additional records search for clinical records kept at the Fort Dix base hospital and additional VA examinations be conducted. The records search was both adequate and uncovered nothing. The VA examinations were provided in 2012 and are adequate, as discussed above. The Board finds that the RO complied substantially with March 2011 remand instructions. Further remand for additional development of the prior remand instructions is not warranted. See Stegall. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). ORDER Entitlement to service connection for a back disability is denied. REMAND The Board must remand the remaining claims for additional development and due process. The Veteran is in receipt of a 10 percent rating for residuals of a fracture of the right distal radius and ulnar styloid process under Diagnostic Code (DC) 5215. See 38 C.F.R. § 4.71a. He is also in receipt of a 10 percent rating for right wrist CTS under DC 8515. See 38 C.F.R. § 4.124a (2012). The Board remanded the fracture residuals issue to obtain a complete VA examination. The representative argued in a July 2012 brief that the 2012 VA examination report did not address limitation of supination or pronation with regard to the fracture residuals issue and contained contradictory findings regarding the CTS issue. In particular, the Veteran alleges that he has limited motion in the wrist. The VA examination did not address supination or pronation, only flexion and extension. The examiner also stated that the Veteran had numbness, paresthesias and dysthesias of the right upper extremity with decreased sensation to light touch in bilateral forearms, hands and fingers yet the findings for each individual nerve were normal. Although his representative did not argue it, these findings raise the possibility of additional non service-connected neurological disability in the upper extremity which must, if possible, be separated from the impairment caused by the service-connected CTS. See Mittleider v. West, 11 Vet. App. 181 (1998). The Board remands for an adequate VA examination which measures supination and pronation in the right wrist and to identify why the Veteran has signs of neurological impairment in both arms and to identify the signs and symptoms caused by the CTS alone, if possible. The Veteran's only service-connected disabilities are his right wrist fracture residuals and CTS. The TDIU and SMC issues are predicated on the schedular and extraschedular (where warranted) ratings assigned for and severity of the Veteran's service-connected disabilities. These claims are inextricably intertwined with the claims for increased ratings. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Hence, a remand of these matters is warranted as well. The Veteran's claim for disability pension and SMP due to aid and attendance were denied in a June 2009 decision. While the RO exhibited confusion as to the Veteran's pension filings, the Board considers them quite clear. The Veteran's former representative was explicit in challenging the disability pension and aid and attendance claims in the June 2009 Notice of Disagreement. The claim must be remanded to allow the RO to provide the Veteran with a statement of the case (SOC) on this issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). However, the issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his right wrist disabilities. Sufficient evaluations should be scheduled to evaluate the Veteran's orthopedic and neurological symptomatology. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should identify the limitation of activity imposed by the Veteran's service-connected right wrist disabilities with a full description of the effect of the disabilities upon his ordinary activities. The examiner should fully describe any weakened movement, excess fatigability, and incoordination present. The examiner must include measurements of the ranges of supination and pronation of the right wrist. In the neurological examination (a neurologist is not required), the examiner should identify if any other neuropathies are present and describe the extent to which any neurological symptoms are distinguishable from the right CTS for which the Veteran is service-connected. If it is not possible to separate the effects of a nonservice-connected condition from the service-connected CTS, the examiner should so state. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 2. Then, the RO should readjudicate the increased ratings claims on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 3. Provide the Veteran with a statement of the case as to the issue of disability pension and SMP due to the need for regular aid and attendance. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. If a timely substantive appeal is not filed, the claim should not be certified to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs