Citation Nr: 1305490 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 05-31 336 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from November 2002 to July 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Phoenix RO. The case was initially before the Board in January 2010 and May 2011, when it was remanded for additional development. The Veteran's electronic ("Virtual VA") file was reviewed and it does not contain any evidence or information that has not been considered by VA. The issue of entitlement to service connection for sinusitis 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. FINDING OF FACT The Veteran's current low back disorder had its onset during his active service. CONCLUSION OF LAW The criteria for service connection for a low back disorder have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2012). In this decision, the Board grants service connection for a low back disorder. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance with the duty to notify and assist is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304(b). According to 38 C.F.R. § 3.304(b) (2012), the term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began. See 38 C.F.R. § 3.304(b)(1) (2012). Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to ... manifestations, clinical course, and character of the particular injury or disease or residuals thereof." Id. A pre-existing injury or disease will be considered, in essence, presumed, to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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 v. Nicholson, 492 F.3d 1372, 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 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. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 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."). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. The Veteran contends that his current low back disorder is related to his military service. The Veteran's enlistment examination shows that no spine abnormalities were found. On May 2002 medical history reports, he denied having a history of recurrent back pain or any back problems. Since there was no notation of low back problem at the time of his enlistment examination, the presumption of soundness attaches. 38 U.S.C.A. §§ 1111. However, since there are medical records dated prior to service that contain evidence of a low back injury, the Board must next consider whether there is clear and unmistakable evidence to rebut the presumption of soundness. See Wagner, supra. Although there is evidence that the Veteran injured his low back prior to entering the military, the record does not present clear and unmistakable evidence that a low back disorder pre-existed service. A May 2000 private treatment record notes that the Veteran was in a car accident that involved a back injury. The assessment noted low back pain. An October 2000 private treatment record notes a one month history of mid back pain; there were no complaints noted regarding low back pain. There is also no evidence of ongoing low back symptoms after the car accident and the Veteran denied having a history of back problems at enlistment. See the May 2002 medical history reports. His service treatment records also include an April 2004 medical history report in which the Veteran provided a positive response to having recurrent back pain or any back pain; however, the section of the report that allows the physician to elaborate on a Veteran's complaints indicates that the back pain response was related to a history of possible kidney stones. A May 2004 examination report shows that no abnormalities were found regarding the spine. Although the report notes "E/C" in the area of his back, this comment relates to item number 38 on the form, which pertains to findings associated with a skin examination. Furthermore, on the April 2010 VA examination he specifically reported that his back symptoms resolved after the car accident and the VA examiner concluded that the Veteran did not have a pre-existing back disorder. The overall evidence tends to establish that while there was a pre-service injury, it was acute and resolved without any residuals. There is no evidence of symptomatology from the time of the accident continuing to his enlistment and there is no evidence of symptoms during service. This evidence along with the medical opinion and the Veteran's own statements indicate a low back disorder did not exist prior to service. Since the first element to rebut the presumption of soundness is not met, namely clear and unmistakable evidence that the Veteran had a low back condition prior to service, it is not necessary to analyze whether there is clear and unmistakable evidence that the pre-existing condition was not aggravated by service since both elements must be satisfied to rebut the presumption. With the Veteran being found sound upon entering service, the question turns to whether the Veteran has a current disability that is related to service. After service, spondylolysis was diagnosed on the October 2004 VA examination. In addition, a June 2006 VA record notes a diagnosis of spondylolisthesis, and the April 2004 VA examiner diagnosed chronic back strain. The Board has considered lay evidence that the Veteran had a low back injury in service. The Veteran asserts that he had a low back injury and low back pain in service. On the October 2004 VA examination, he reported that while in service he rode in a big Humvee that jerked and bounced constantly on that road and that this resulted in a jarring of his back. On the April 2010 VA examination, he again reported a back injury due to riding in a Humvee that landed hard in many potholes and had poor shock absorbers. The Veteran is competent to report a back injury in service, and his statements in this regard are found to be credible when viewed in conjunction with the other evidence of record. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Regarding the diagnosed low back disorder, the only medical opinion of record that addresses this point is a June 2011 addendum to the April 2010 VA examination. The claims file was reviewed and based on the record the opinion was that the current low back disorder is not caused by or the result of a back condition in service. The reasoning was that the record did not reflect treatment for a back condition while the Veteran was in service or in post-service records. There was no objective evidence of a mechanical problem at the time of the April 2010 VA examination and the only reason why the examiner offered a diagnosis of chronic back strain at that time was due to subjective complaints of back pain. The examiner stated that: "The reason I gave the diagnosis of chronic back strain is that I had the Veteran's subjective report of pain over the years. If he says it hurts, then it hurts. However, I have no objective evidence that his back pain started in service." As noted above, the Board finds that Veteran's statements that he injured his back in service and had symptoms since service to be credible. He gave consistent accounts of the injury on VA examinations in October 2004 and April 2010. He also reported back pain on VA examination in October 2004, just three months after he was separated from service. While the April 2010/June 2011 VA examiner provided a negative nexus opinion, he stated that this was based upon a lack of objective documentation. As the Board has found the Veteran's lay statements to be credible, the medical opinion is not found to be probative. The Veteran suffered a back injury during service and has had continued pain since that time, resulting in a diagnosis of chronic low back strain. Thus, the Board finds that service connection for a low back disorder is warranted. ORDER Service connection for a low back disorder is granted. REMAND Although the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration. A December 2008 VA treatment record indicates that the Veteran applied for and was denied disability benefits from the Social Security Administration (SSA) approximately six months earlier. To date, however, a complete copy of the Veteran's SSA records, to include evidentiary material, has not been associated with the claims file. The Board notes that the possibility that SSA records could contain evidence relevant to the Veteran's current claim cannot be foreclosed absent a review of those records. As such, this case must be remanded to obtain the SSA records. See 38 C.F.R. § 3.159(c)(2) (2012); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). As the case must be remanded for the foregoing reason, any recent VA treatment records should also be obtained. To ensure that VA has met its duty to assist the Veteran in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is again REMANDED for the following action: 1. Make arrangements to obtain copies of all documents and/or evidentiary material pertaining to the Veteran's application(s) for SSA disability benefits. If these records are not available, a negative reply must be provided. 2. Obtain a complete copy of the Veteran's treatment records for any sinus problems from the Phoenix VAMC, dated since June 2011. Any response received should be memorialized in the Veteran's claims file. 3. Finally, readjudicate the claim on appeal. If the benefit sought on appeal is not granted, issue a supplemental statement of the case, and give the Veteran an appropriate amount of time to respond. 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 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. 2012). ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs