Citation Nr: 1301433 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-12 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a residual head injury scar. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to November 1967, to include service in the Republic of Vietnam, from November 9, 1966, to November 5, 1967. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating determination of the Atlanta, Georgia, Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In August 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA) with respect to the Veteran's back disability claim. The requested opinion was received in September 2012. In October 2012, the Board informed the Veteran and his representative that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him and his representative a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. To date, the Veteran has not responded; however, in a December 2012 Informal Hearing Presentation, the Veteran's representative offered further argument in support of the Veteran's claim. Accordingly, the Board will proceed with the consideration of his case. In this case, recent VA medical records were added to the Veteran's electronic Virtual VA folder. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The preponderance of the evidence is shows that the Veteran's forehead disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 2. The preponderance of the evidence shows that the Veteran's current low back disorder is more likely age and activity related and is not related to service or an incident of service origin. CONCLUSIONS OF LAW 1. The criteria for service connection for a residual head injury scar are not met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for a low back disorder are not met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify & Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent in December 2008 prior to the initial rating decision. These letters included notice of the type of evidence necessary to establish a disability rating or effective date for the issues under consideration, pursuant to the recent holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained his service treatment records, VA medical records, and private treatment records. The Veteran was also provided with VA examinations. He has not indicated there are any additional records that VA should seek to obtain on his behalf. In January 2012, the Board remanded the case for further development. The Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). A January 2012 letter requested the Veteran provide approximate dates and location of his fall while in service as well as the approximate date and location of his in-service hospitalization. The January 2012 letter also requested that the Veteran complete and return an authorization for the listed health care providers identified by the Veteran. The Veteran did not respond to either request. The Veteran was then afforded VA examinations and medical opinions were provided on remand. The VA examiners conducted an examination and provided an opinion with a supporting rationale. Because the Board determined that a further medical opinion was necessary to adjudicate the Veteran's back disability claim, as noted in the introduction, the Board sought a specialist's opinion from the VHA and provided the Veteran and his representative a copy of the opinion and an opportunity to respond. As such, the information requested by the Board was provided and there was substantial compliance with the Board's remand instructions and VHA request. Service connection criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. at 511. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 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(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Residual head injury scar The Veteran seeks service connection for a residual head injury scar, which he avers resulted from an in-service fall in the Republic of Vietnam. In the January 2012 Board remand, the Board has conceded that the Veteran's reports of sustaining trauma due to a fall while serving in Vietnam were both credible and probative as he was reporting his history while in the course of seeking medical care and had no claim pending for VA compensation benefits at the time. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While service treatment records (STRs) show no complaints of, treatment for, or other evidence of a fall during the Veteran's service in Vietnam, the Board finds his reports credible. In a July 2009 statement, the Veteran indicated that he went to a specialist for the mark left on his head from the fall and was told that it was caused from broken blood vessels related to the fall; the Veteran related that is has only gotten bigger with time. In March 2012, the Veteran was accorded a traumatic brain injury (TBI) disability benefit questionnaire (DBQ). During the examination, the Veteran reported that he hit his head and fell on his back in 1967 on a ship in Saigon Harbor. He reported that he fell 30 feet onto his rear then fell forward and hit his head on a steel bar. He indicated that he still had a bright red scar from the incident. He further indicated that he was "in and out" for 15 to 20 minutes until he was examined. He denied bleeding or having an open wound at the time and reported that he just experienced pain at the site where the steel bar hit him. He reported that all x-rays taken at the time were normal and showed no fractures or bleeding inside the brain. He was admitted to the local hospital for three days before he was sent home. He was then placed on one month of light duty and resumed normal duty for three to four months. He denied having headaches, mental issues, or any other residuals except the head scar. Physical examination revealed no evidence of a scar but the examiner noted a skin lesion on the forehead. The Veteran reported that he has had this lesion since the 1980's. The diagnosis was closed head injury, by history only with no note in STRs, resolved with no residuals. During a March 2012 skin DBQ, the Veteran reported that in the 1980's he noticed red dots slowly increasing on his forehead and was given some skin cream by a skin specialist. He was informed that he probably hit something and denied that the dots were there when he first went into the military. He had been told that it was caused by blood vessels under the skin. The examiner found no scarring and indicated finding disfiguring bright red capillary hemangioma on the forehead. The diagnosis was capillary hemangioma on the forehead. The examiner opined that no nexus opinion could be made as the Veteran's STRs are silent for any skin condition and the separation examination did not yield a finding of a skin condition. Moreover, the examiner noted that the Veteran reported that he was diagnosed with the current skin condition in the 1980's, more than 10 years after discharge from service. The examiner further found no objective evidence of the claimed condition during military service or shortly thereafter. Based on a review of the evidence, the Board finds that service connection for a residual head injury scar is not warranted. While the Board has already conceded that the Veteran's reports of an in-service fall occurring are credible and probative, these statements fail to demonstrate that the Veteran's diagnosis of capillary hemangioma on the forehead is related to the in-service fall. Further, the Board finds that the Veteran's statements are outweighed by the March 2012 medical finding that the Veteran's skin condition was not a scar, the Veteran's separation examination did not contain any skin condition, and there was no objective evidence of a skin condition shortly after service. Moreover, the March 2012 TBI examiner found no evidence of a scar but noted a skin lesion on the forehead; which the Veteran reported he has had since the 1980's. The examiner based the findings on an examination of the Veteran, the Veteran's statements, a review of the available medical records, medical literature, and clinical experience. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As it relates to the continuity of symptomatology, the Veteran has not specifically indicated that he has had a scar on his head since service. Rather, the Veteran has reported that he began noticing red dots on his forehead beginning in the 1980's that have worsened over time. The Board finds significant that the Veteran reported during the March 2012 VA examination that he first noticed marks on his forehead more than 10 years after he separated from service. In addition, although invited by the Board to do so in the January 2012 remand, the Veteran did not submit lay statements from other individuals who had first-hand knowledge or who were contemporaneously informed his residual head injury scar and any possible relationship to military service. Thus, to the extent that the Veteran alleges that he had an onset of any scar or skin disorder of the head in service, as well as ongoing symptoms since separation to establish both continuity of symptomatology and a nexus between a current skin disorder and service, the Board finds that his statements in this regard are not credible as they conflict with contemporaneous evidence. Further, his lay contention regarding the etiology of his current skin disorder is outweighed by the medical opinion provided by the March 2012 examiner's opinions. In the absence of evidence showing a current skin disorder related to service, service connection must be denied. Low back The Veteran also seeks service connection for a low back disorder, which he avers resulted from an in-service fall in the Republic of Vietnam. As previously stated, the Board has conceded that the Veteran's reports of sustaining trauma due to a fall while serving in Vietnam were both credible and probative as he was reporting his history while in the course of seeking medical care and had no claim pending for VA compensation benefits at the time. See Buchanan, 451 F.3d at 1337; see also Jandreau, 492 F.3d 1372. Private medical records show the Veteran first complained about pain in his low back with numbness in November 1990 but has had the pain for approximately three to four years. See January 1991 report. During treatment, the Veteran reported a 20 year history of falling on his back while in Vietnam. Diagnoses included herniated nucleus pulposus at L2-L3, L5-S1 on the right side, disc degeneration with mild diffuse spondylitic changes and low back pain. In January 1991, the Veteran underwent a percutaneous diskectomy. During a September 2000 consultation, the Veteran indicated that he had a history of low back pain beginning on June 8, 2000, after a lifting episode at work which resulted in the immediate onset of low back pain. In May 2003, the Veteran indicated that he injured his back at work while lifting a 10 pound box with a twisting motion. In March 2008, the Veteran had an epidural steroid injection at L4-5. In March 2012, the Veteran was accorded a back DBQ. During the examination, the Veteran reported that he fell on a ship onto his back from the top of the ship - approximately 30 feet - onto his behind. He indicated that he was admitted to the local hospital for three days after which he was released to light duty for one month and then he resumed normal for at least three to four months with no problems. He then indicated that he reinjured his back a couple of times while fixing or twisting a heavy box. He then reinjured his back in 2003 after falling. He had one surgery for his back in 1992. The diagnosis was degeneration of the lumbar intervertebral disc. The examiner opined that the Veteran's current back condition was not caused by or a result of military service. This opinion was based on a review of the medical records, medical literature, and clinical experience. The examiner noted that STRs were silent for back conditions to include a back injury. The examiner further found no documentation of hospitalization of the Veteran and noted that the Veteran was not diagnosed with multilevel degenerative disc disease until 29 years after separation. Moreover, the examiner noted that the Veteran worked as a manual laborer with at least two self reported back injuries and many more unknown incidental injuries. Finally, the examiner noted o objective evidence of the claimed condition onset in the military or shortly after discharge. In an October 2012 independent medical opinion, the physician opined that he could not make any connection between the Veteran's active duty service and his much later, age-related, activity related spinal condition. Even assuming that the Veteran's reported fall from a ship in Saigon Harbor in 1967 as factual, the physician opined that it was most certain and far more likely that the spinal complaints and conditions the Veteran reported were due to age and activity related degeneration (typical for his age) rather than the remote likelihood that the late changes are related to a fall during active duty in 1967. Finally, the physician indicated that he could not identify a causal relationship between the Veteran's fall in 1967 and his subsequent spinal complaints and treatments years later. There was no medical evidence to support the Veteran's claim that a significant fall in 1967, while on active duty, let to a spinal injury requiring treatment 20-plus years later. Based on a review of the evidence, the Board finds that service connection for a low back disorder is not warranted. While the Board has already conceded that the Veteran's reports of an in-service fall occurring are credible and probative, these statements fail to demonstrate that the Veteran's diagnoses of degeneration of the lumbar intervertebral disc, herniated nucleus pulposus at L2-L3, L5-S1 on the right side, disc degeneration with mild diffuse spondylitic changes, and low back pain are related to the in-service fall. Further, the Board finds that the Veteran's statements are outweighed by the October 2012 medical opinion finding that the Veteran's spinal condition was most certain and far more likely related due to age and activity related degeneration, which is typical for his age, than the remote likelihood that the late changes were related to a fall during active duty in 1967. The October 2012 physician based the findings on a review of the available medical records, complaint and support documents, and his experience in Neurological Spinal Surgery. As it relates to the continuity of symptomatology, the Veteran reported that he was admitted to the local hospital for three days after his fall, after which he was released to one month of light duty then he resumed normal duty for at least three to four months with no problems. During a January 1991 physical, the Veteran complained about pain in his low back with numbness in November 1990 but has had the pain for approximately three to four years. He did report, however, a history of having sustained a back injury in service approximately 20 years earlier, but not a continuity of symptoms since that time. Further, the Board notes that although invited to do so in the January 2012 remand, to date the Veteran has not submitted any lay statements from individuals who have first-hand knowledge of his back problems and any relationship to service. Moreover, during the September 2000 consultation, the Veteran indicated that he had a history of low back pain beginning on June 8, 2000, after a lifting episode at work which resulted in the immediate onset of low back pain. The Board finds the Veteran's account of the onset of his back problems, reported in the context of receiving treatment for his low back, to be more probative than his statements linking his current back disorder to service. Further, the Board finds that his statements regarding a nexus are outweighed by the more probative independent physician's opinion that the Veteran's current low back disorder is more likely age or activity related than service related. There are also no other medical opinions to the contrary. Thus, in the light of the lay and medical evidence, the Board finds that service connection for a low back disorder is not warranted. ORDER Service connection for a residual head injury scar is denied. Service connection for a low back disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs