Citation Nr: 1305457 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 07-32 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for pulmonary nodules. 3. Entitlement to a payment start date earlier than November 1, 2010, following the award of service connection for hearing loss and tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The appellant and Dr. C.B. ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran had active service from January 1980 to October 1982 and October 1993 to June 1994. He also had periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (ACDUTRA) with the Air National Guard and Air Force Reserve. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In July 2007, the Veteran testified at a RO hearing before a Decision Review Officer. In October 2010, he testified at Board hearing before the undersigned Veterans Law Judge at the RO; transcripts of the hearings are of record. In January 2011, the Board remanded the appeal for additional development. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with this appeal. The electronic file contains no additional relevant treatment records pertaining to the issues on appeal. 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). The issue of entitlement to an earlier payment start date following the award of service connection for hearing loss and tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence is at least in relative equipoise on the question of whether the Veteran's degenerative disc disease of the lumbar spine, post L4-L5 lumbar discectomy, is related to active service. 2. The evidence is at least in relative equipoise on the question of whether the Veteran's pulmonary nodules are related to active service. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the degenerative disc disease of the lumbar spine, post L4-L5 lumbar discectomy, was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. With resolution of reasonable doubt in the Veteran's favor, the pulmonary nodules were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Given the favorable outcome detailed below, an assessment of VA's duties under the VCAA is not necessary. Legal Criteria Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may 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). Generally, in order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; a medical evidence of a nexus between the claimed inservice disease or injury and a current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (C.A. Fed. 2009). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). As provided by 38 U.S.C.A. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, the lay person is reporting a contemporaneous medical diagnosis, or 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). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See Id. at 1376-77. In short, the Board cannot determine the lay evidence as to diagnosis and nexus lacks credibility merely because it is not accompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There are a few additional points also worth mentioning. Active military, naval, or air service includes not just active duty, but also any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury (though not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). To establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "Veteran" for other periods of service (e.g., the Veteran's period of active duty) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, for the appellant to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury (but not disease) incurred or aggravated during INACDUTRA. Id. Moreover, there is no presumption of soundness, aggravation, or incurrence of a chronic condition when in relation to service on ACDUTRA and INACDUTRA, only instead concerning service on active duty. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Even further, National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). "Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed 'full-time duty' under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505." Id. at 58. Analysis In this case, the Veteran asserts that his current lumbar spine disability and pulmonary nodules were incurred in or aggravated by his military service, to include periods of active duty and ACDUTRA as a member of the Air National Guard and Air Force Reserve. He served in the Air National Guard as a flight engineer and in the Air Force Reserve as a paralegal. Specifically, he claims that his lumbar spine disability is a result of a February 1982 motor vehicle accident that occurred on active duty and the cumulative injuries that occurred while lifting heavy equipment as a flight engineer in the Air National Guard. The Veteran also worked as a commercial pilot during civilian life, but claims that his duties did not involve lifting heavy equipment. He also asserts that his pulmonary nodules are a result of breathing in jet fuel. The Veteran's service treatment records indicate that he was involved in a motor vehicle accident in February 1982. The evidence indicates that he was not wearing a seat belt and that he sustained a soft tissue injury to his cervical spine and fractured his jaw. At the time of the accident, he had no specific complaints or treatment for low back pain. During the Board hearing, he said that he could not recall any specific low back pain injury; however, the primarily focus was on more severe injuries to the neck and jaw. Periodic physical examinations for the Air National Guard during the 1990s indicate that the Veteran's spine, lungs, and chest X-rays were normal. Corresponding reports of medical history also indicate that he denied recurrent back pain and pulmonary symptoms. The Veteran submitted a statement from Lieutenant Colonel W.M., who was the officer in charge during Operation Deep Freeze in November 1996. He stated that the Veteran injured his low back in route to New Zealand and received treatment when he landed from a U.S. Navy Medical Installation in Christchurch, New Zealand. He remained under care for one week, returned to duty, and continued his mission to Antarctica. A November 1996 private treatment record from a chiropractor in New Zealand (D.R.) confirms that the Veteran was treated for lower back pain. It was also noted that the Veteran had a motor vehicle accident in February 1982 and that this was the onset of the problem. Private treatment records from the Veteran's chiropractor (B.E.) indicate that the Veteran was seen several times for back pain beginning in May 1994. At that time, he said he had received a lower back adjustment the prior year, which had resolved the problem. He did not recall any specific cause. In July 2004 and May 2005, back pain was noted to be associated with long flights or flight duties. An October 2003 periodic examination for the Air National Guard indicates that the Veteran's chest X-ray was abnormal. The X-ray from St. Clare's Hospital indicated that he had pulmonary nodules. October and December 2003 VA outpatient treatment records also note that the Veteran had pulmonary nodules. Dr. A.B. opined that it was highly probable that the lesions were benign and represented old infections. In March 2005, it was noted that two nodules appeared calcified and were probably granulomas. VA outpatient records indicate the Veteran sought treatment for sudden onset of sciatic pain in April 2004. In September 2005, he complained of a one-month history of back pain radiating into his right lower extremity. Treatments records indicate that he had a longstanding history of back pain dating back 10 years with an increase of symptoms beginning in August or September 2005 without precipitating trauma or injury. An October 2005 magnetic resonance imaging (MRI) revealed midline and right-sided disc protrusion at the L4-5 level. On December 13, 2005, he presented in the emergency room with complaints of worsening back pain. He stated that he had a known disc problem and was scheduled for a neurosurgery consult in January 2006. He said he was flying to Antarctica the next day and wanted to be looked at before he left if possible. On December 14, Dr. Y.K. indicated that the Veteran was evaluated and diagnosed with lumbar degenerative disc disease at the L4-L5 and L5-S1 levels. The Veteran had federal orders to active duty for local special training from December 14, 2005 to January 9, 2006 for Operation Deep Freeze. According to Technical Sergeant (B.A.), the Veteran telephoned him and explained that he was at the hospital for severe low back pain, but was willing to continue with his trip to New Zealand. After a conversation with his section Chief, it was decided that the risk of additional injury was too high and he was removed from further duty. In January 2006, he was medically restricted from flying. In March 2006, he underwent a lumbar discectomy at the L4-L5 level. Subsequent records note a diagnosis of degenerative disc disease at the L4-L5 and L5-S1 level with disc herniation at the L4-L5 level and consequential spinal stenosis. In June 2007, he was discharged to retired reserve component based on medical disqualification. In an August 2007 letter, the Veteran's chiropractor (B.E.) indicated that the Veteran had been under his care since May 1994 and had been seen seventeen times for back pain. B.E. stated that the Veteran's condition was aggravated by prolonged sitting and seemed to relate to times of active duty flying. In October 2010, Dr. Bash submitted a document entitled "Independent Medical Expert (IME) Nexus Opinion." He opined that the Veteran would not have injured his back in the 1990s if not for the low back injury sustained during the motor vehicle accident in 1982. Dr. Bash explained that such a major accident would have accelerated the degenerative process. With regard to the Veteran's pulmonary nodes, Dr. Bash opined that these nodules were thought to represent old infections and that the Veteran likely acquired tuberculosis or histoplasmosis infection while in service traveling around the world. Dr. Bash noted that the Veteran traveled to many of the places endemic with these types of infectious agents. A VA examination was conducted in February 2011. The Veteran was diagnosed as having degenerative disc disease of the lumbosacral spine post L4-L5 lumbar discectomy with intermittent lumbar radiculopathy. The examiner opined that it was at least as likely as not that the Veteran's lumbar spine disability was caused by military service. The examiner explained that the motor vehicle accident would have likely injured his low back as well as his cervical spine, but, regardless, his duties as a military pilot involved frequent lifting and carrying, which caused repetitive injury to the lumbar spine and discs over time. Regarding the pulmonary nodes, the examiner opined that this condition was at least as likely as not caused by or a result of military service. The examiner indicated that the pattern of nodules was most consistent with healed subclinical granulomatous infection with an agent such as tuberculosis, histoplasmosis, coccidioidal mycosis or rarely brucellosis. Although tuberculosis had been ruled out, the examiner explained that the symptoms of these conditions were usually absent in the absence of acute active disease and that subclinical infection with subsequent development of asymptomatic pulmonary nodules is not uncommonly seen for any of the above-noted conditions. The examiner further opined that the Veteran's history of service as a military pilot in multiple parts of the world likely placed him an endemic area at some point in his military career. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board finds that the opinions of Dr. Bash and the February 2011 VA examiner relating the Veteran's lumbar spine disability and pulmonary nodules to his military service are probative and persuasive based on the physicians' thorough and detailed examination of the Veteran, comprehensive review of the claims file, adequate rationale, and consideration of the Veteran's lay statements in regards to his disabilities. In addition, there are no contrary competent medical opinions of record. Although the Board is not required to accept medical authority supporting a claim, VA must provide reasons for rejecting that evidence and, more importantly, must provide a medical basis other than its own unsubstantiated conclusions in support of a determination. Jones v. Principi, 16 Vet. App. 219 (2002); Smith v. Brown, 8 Vet. App. 546 (1996); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Here, because the only medical opinions regarding nexus support the Veteran's claims, the Board finds that service connection for a lumbar spine disability and pulmonary nodules is warranted. VA should not seek an additional medical opinion where favorable evidence in the record is unrefuted. Mariano v. Principi, 17 Vet. App. 305 (2003). At the very least, the Board finds that the Veteran's lay statements, along with the opinions of Dr. Bash and the February 2011 VA examiner, permit application of the reasonable doubt doctrine. In other words, the evidence for and against the claim is in relative equipoise. Given the facts noted above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for a lumbar spine disability and pulmonary nodules are met. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for degenerative disc disease of the lumbar spine, post L4-L5 lumbar discectomy, is granted. Service connection for pulmonary nodules is granted. REMAND In an April 2012 rating decision, VA granted service connection and assigned a 10 percent rating for tinnitus and a noncompensable rating for hearing loss - each effective March 9, 2007. In the April 2012 notice letter, VA stated that the payment start date for the increased evaluation was November 1, 2010. Other ratings were changed effective this date, but it is not clear that the rating for tinnitus was first paid as of that date, or that it was considered for payment from the earlier date. In June 2012, the Veteran filed a notice of disagreement with the payment start date assigned. The United States Court of Appeals for Veterans Claims has held that an unprocessed notice of disagreement should be remanded, not referred, to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Issue the Veteran a statement of the case addressing the claim of entitlement to a payment start date earlier than November 1, 2010, following the award of service connection for tinnitus and hearing loss. (If the matter can otherwise be explained to the Veteran's satisfaction, given the other rating changes effective in 2010, the matter may be closed.) The appellant is hereby informed that the Board will exercise appellate jurisdiction over this claim only if he files a timely substantive appeal. The appellant 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). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs