Citation Nr: 1305907 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 08-30 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) with major depressive disorder, psychosis and anxiety, evaluated at 30 percent from July 30, 2004, at 50 percent since November 21, 2005, and at 70 percent from June 14, 2010 onwards. 2. Entitlement to service connection for a disability claimed as arthritis. 3. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a back injury. 4. Entitlement to service connection for residuals of a back injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO in Houston, Texas has jurisdiction over the claims folder. The Veteran and his spouse testified during an April 2008 hearing before RO personnel. In October 2012 a Travel Board hearing was held before the undersigned Veterans Law Judge (VLJ) in San Antonio, Texas. The transcripts of these proceedings are on file. In October 2012, the Veteran provided additional evidence (primarily duplicates of existing medical evidence) along with a waiver of RO initial review and consideration. See 38 C.F.R. §§ 20.800, 20.1304 (2012). During the October 2012 Travel Board hearing, the Veteran withdrew the claims of an increased rating for PTSD, and service connection for arthritis. These claims will therefore be dismissed. 38 C.F.R. § 20.204 (2012). As to the matter of service connection for a back condition, in February 2007 the RO reopened the Veteran's claim based on receipt of new and material evidence. However, the Board must independently determine whether to reopen the RO's rating decision in the first instance, because this affects the Board's jurisdiction to adjudicate the underlying claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). FINDINGS OF FACT 1. On October 17, 2012, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claims of service connection for arthritis, and an increased evaluation for PTSD with major depressive disorder, psychosis and anxiety. 2. In November 1972, the RO denied the Veteran's original claim for residuals of a back injury and he did not appeal. 3. In December 1998, the RO denied a petition to reopen the Veteran's claim and he did not appeal. 4. The Veteran has since submitted additional evidence which relates to an unestablished fact necessary to substantiate the previously denied claim. The competent and probative evidence is in a state of relative equipoise with regard to the determinative question of whether the Veteran's current lower back disability is attributable to or otherwise had its incurrence during his active military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of service connection for arthritis, and an increased evaluation for PTSD with major depressive disorder, psychosis and anxiety, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2012). 2. The December 1998 rating decision which determined that new and material evidence had not been received to reopen the claim for service connection for residuals of a back injury is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 20.200, 20.302 (2012). 3. New and material evidence has been received to reopen the Veteran's previously denied claim. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). 4. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for residuals of a back injury. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Appeals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In October 2012, the Veteran withdrew his appeal for service connection for arthritis, and an increased evaluation for PTSD with major depressive disorder, psychosis and anxiety. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these matters on appeal and they are dismissed. Service Connection for Residuals of a Back Injury The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U. S. Court of Appeals for Veterans Claims (Court) established additional criteria as to the content of the notice to be provided in connection with a petition to reopen, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence. As indicated below, the Board is granting the full benefit sought on appeal, reopening the claim of entitlement to service connection for residuals of a back injury, and granting the underlying claim on the merits. Assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). Generally, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). Lay evidence may be probative in a claim for service connection. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) commented that competence to establish a diagnosis of a condition can exist when (1) a 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. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). However, lay testimony is deemed competent evidence with regard to matters within the purview of direct observation and firsthand knowledge, however. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is considered competent to report on that of which he or she has personal knowledge). Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Federal Circuit further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. In a November 1972 rating decision, the Veteran's claim for service connection for residuals of a back injury was denied because while service treatment records (STRs) demonstrated a complaint of low back ache at one point, there was no evidence of further complaints or treatment, or for that matter of any additional back problems since separation from military service. The Veteran claimed no treatment since discharge. The Veteran did not file a timely Notice of Disagreement (NOD) with that decision, and hence it became final and binding on the merits. See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.302. The Veteran filed a petition to reopen the claim in 1998. In a December 1998 rating decision, the RO denied the claim because there was no evidence of a current back condition, and no evidence of a back disability at separation from active duty. Once again, the Veteran did not appeal, and the RO's December 1988 rating decision became final. The December 1998 RO rating decision is the last final denial of the Veteran's claim. See generally, Juarez v. Peake, 21 Vet. App. 537, 542 (2008) (in adjudicating a petition to reopen consideration must be provided to evidence received since the last final rating decision on a claim, whether a denial of the original claim or a petition to reopen). When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Evans v. Brown, 9 Vet. App. 273, 283 (1996). Based on the evidence added to the claims file since the RO last adjudicated the claim in 1998, there is clearly sufficient evidence to reopen the matter. The new evidence consists of the treatment reports and summaries from various private physicians; VA outpatient treatment reports; reports of VA Compensation and Pension examinations; and lay statements from the Veteran and others. Presumed credible, this evidence suggest a current clinical diagnosis of back disability. For instance, the report of a May 2007 VA examination of the spine indicates the diagnosis of degenerative disease lumbar spine; L4-5 herniated nucleus pulposus; and bilateral lower extremity radiculopathy. The initial two conditions comprise a present lower back disability. It has been held that proving a current disability is a condition precedent for service connection. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability."). Records of ongoing treatment, both VA and private, reinforce that the Veteran now has a low back disorder. The Veteran has therefore submitted new and material evidence. The Veteran has also submitted new and material evidence to substantiate his claim of a connection between his current back disorder and military service. Two private physicians' opinions (addressed in greater detail below), indicate that the Veteran's present back problems were caused by military service. Each was rendered upon consideration of the Veteran's medical history and clinical presentation. The claim of service connection for residuals of a back disability is hereby reopened. The Veteran's STRs indicate that in August 1969, he was treated for "back trouble" while lifting and stretching. On physical evaluation there was mild tenderness to the left paravertebral muscles T12 through L4 area. The impression was a sprain. He was treated in April 1970 for lumbosacral strain. On separation examination of November 1970, there was noted mild low back pain in 1968, treated with rest and heat, no complications, and no sequelae. VA outpatient treatment in October 1992 indicates that the Veteran described pain and a fluctuating course since 1968 depending on activity level. Two months previously the pain had returned to a significant level. The impression was an acute exacerbation of chronic low back pain, resolved. A contemporaneous clinical record likewise states that the Veteran injured his back in 1968 when he slipped from an aircraft, and had experienced intermittent episodes of lower back pain since. In November 2005 correspondence, the Veteran recounted that during service in the summer of 1968 while stationed at Clark Air Force Base in the Philippines, he was working on maintenance of the ejection seat for a jet engine airplane when he twisted his back. The Veteran further recalled that in April 1970 while stationed at Laughlin Air Force Base in Texas, he sought treatment from a military physician who told him to rest for a few days and place a board under his mattress. According to the Veteran, between 1972 and 1985 he was treated at the VA outpatient clinic for his back pain. He recalled the 1992 instance of treatment where he sought evaluation for back pain and therapeutic measures. Through January 2006 correspondence, Dr. A.Y.P. indicated that she had been treating the Veteran for back problems since August 2005, and that he had presented with back pain that radiated down his leg to his foot. She noted that the Veteran's history was positive for a back and shoulder injury in 1968 while he was in the Air Force (involving an incident of the same circumstances as have already been described by the Veteran himself). Dr. A.Y.P. noted that the Veteran had undergone treatment at VA outpatient clinics between 1972 and 1985, and resorted to over-the-counter medications and rest, and had experienced lumbar pain this entire time. She opined that over time, the lumbar pain had resulted in severe radiculopathy of the right lower extremity. The physician further noted having reviewed the Veteran's military discharge physical documents; medical records from Laughlin Air Force Base dated April 1970; VA hospital medical records an MRI reports, dated from August 1992 through August 2005; VA hospital EMG report from March 2003; private MRI dated from August 2005; VA claim letters from 1972. Dr. A.Y.P. opined that while only the Veteran's back problem was reported and documented on his military records, the type of severe stretching trauma sustained on the date of his accident in 1968, and the repetitive trauma, strain and physical exertions required of his occupation while he was serving in the military were specifically the types of activities that caused osteoarthritis; and that the Veteran's back disorder was caused by service. The Veteran underwent VA Compensation and Pension examination of the spine in May 2007. The examiner reviewed the claims folder and the Veteran reiterated his essential account of his military service. After a physical examination, the diagnosis was degenerative disease lumbar spine; L4-5 herniated nucleus pulposus; bilateral lower extremity radiculopathy. The VA examiner stated that the Veteran's lumbar spine disorder was not a result of or caused by the condition he experienced while on active duty in the Air Force because the record was essentially silent for any episodes of back pain between 1970 and 1998. Additionally, the Veteran's first MRI in August 1992 was 23 years after the injury and only showed a minimal L4-5 bulge. No additional comments or opinions regarding possible causal relationships between current diagnoses and any incident of service had been requested, and none were offered. According to the VA examiner, more likely etiologies included "common etiologies" including, but not limited to: age, obesity, deconditioning, heredity, concomitant health issues, and post-service occupation. On VA re-examination in June 2008, the Veteran's medical history was evaluated, both on the basis of medical documentation, and the Veteran's own subjective history. Following physical examination, the diagnosis was chronic low back pain, secondary to degenerative disc disease, primarily L4-5. The examiner then opined that without further documentation of back problems in the 1970s and 1980s, in his opinion it was not possible to conclude that the patient's recent back problems were definitely related to his in-service activity. It was his opinion, therefore, that the patient's back problem was less likely as not related to his in-service activity. The September 2008 report of Dr. M.A.B., private physician and orthopedic surgeon, observes that the Veteran had been noted to have had a herniated disc at L4-5 in 1992, and opined that this consisted of the progression of an injury sustained since 1968 during the Veteran's military service. He summarized that the Veteran's back condition was considered directly related to service. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993) (under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). Firstly, the Board does not doubt the probative value of medical evidence - here, the Veteran has undergone several VA examinations which essentially indicate that there is no connection between his back disorder and his military service. However, lay evidence may be competent if it relates to what is observable by a layperson - here, the Veteran is competent to allege and report a continuing symptomatology since service. Moreover, non-VA medical care providers have stated that the Veteran's back disorder was essentially caused by the Veteran's continual accommodation to back pain. There is no evidence to refute that the Veteran had back pain since service, and medical evidence is not in agreement as to whether the Veteran's back pain caused a diagnosed back disorder. Further medical inquiry would not assist the Board and given these factors, the informed and competent evidence is in approximate balance, and the claim will be granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board expresses no opinion as to the severity of the disorder for rating purposes. The RO will assign an appropriate disability rating in the first instance. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). CONTINUED ON NEXT PAGE ORDER The appeal as to the claim for an increased evaluation for PTSD with major depressive disorder, psychosis and anxiety is dismissed. The appeal as to the claim for service connection for arthritis is dismissed. New and material evidence having been presented, the claim for service connection for residuals of a back injury is reopened. Service connection for residuals of a back injury is granted. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs