Citation Nr: 1307322 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-23 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease (DDD). 2. Entitlement to service connection for a psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his brother ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from May 1979 to December 1980. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied the benefits sought on appeal. The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for one psychiatric disorder encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App 1 (2009). Accordingly, the Board has characterized the mental disorder claim as shown on the cover sheet. In January 2011, the Board remanded the matter in order to afford the Veteran an opportunity to present testimony before a Veterans Law Judge (VLJ). In May 2012, the Veteran presented testimony before the undersigned VLJ during a videoconference hearing, with the Veteran sitting at the local RO and the undersigned sitting at the Board's Central Office in Washington, DC. A transcript of that hearing has been associated with the record and has been reviewed. In June 2012, the Board remanded the case to the Appeals Management Center (AMC) in Washington, DC, for additional development. The AMC completed the additional development as directed, continued to deny the claims, and returned the case to the Board for additional appellate review. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and notes that all pertinent records in the Virtual file that are not also in the paper claims file were reviewed and considered by the AMC while the case was on remand, as noted in the December 2012 Supplemental Statement of the Case (SSOC). Hence, there is no need to seek a waiver from the Veteran or remand for RO review. See 38 C.F.R. § 20.1304 (2012). Any further development or adjudication of this matter should take into account this paperless claims file. The issue of entitlement to service connection for a psychiatric disorder, to include schizophrenia, is discussed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. FINDINGS OF FACT 1. The AMC completed the development directed in the June 2012 Board remand by obtaining identified additional records and arranging medical examinations of the Veteran to assist him with his claim. 2. The preponderance of the evidence of record shows the Veteran's currently diagnosed lumbar spine disorder did not have its clinical onset during active service. CONCLUSION OF LAW Lumbar spine DDD was not incurred in active service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307(a), 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. Prior to issuance of the decision appealed, VA issued a letter in September 2008 to the Veteran notifying him of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and notice of how disability ratings and effective dates are assigned in the event service connection is allowed. The Board finds the letter was fully time- and content-compliant. See 38 C.F.R. § 3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Hence, VA complied with the VCAA notice requirements. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The combined efforts of the RO and the Veteran have resulted in all relevant identified records being added to the record, including the records related to the Veteran's award of benefits by the Social Security Administration. The RO also informed the Veteran of instances where there was no response to requests for records identified by the Veteran. Neither the Veteran nor his representative asserts that there are additional records to be obtained. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. See id. The Board has reviewed all the evidence in the claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and, a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. See Walker v. Shinseki, No. 2011-7184, 2013 WL 628429, 5-6 (Fed. Cir. 2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status will not always constitute competent medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Analysis The Veteran asserts he injured his lumbar spine lifting a lawnmower during service and that he has experienced essentially the same symptomatology since his discharge from service. Service treatment records dated in September 1979 document complaints of back pain attributable to heavy lifting. At that time, an x-ray of the lumbar spine was negative. Physical examination demonstrated point tenderness over the interspinous processes of the upper lumbar spine and pain that increased with extension. The Veteran was diagnosed with intraspinous ligamentous trauma and localized inflammation. He was treated with local heat and Indocin and referred for physical therapy. On his November 1980 Report of Medical History for his separation examination, the Veteran reported recurrent back pain. Clinical evaluation of the lumbar spine, however, was within normal limits at the November 1980 Report Of Medical Examination For Discharge. Post-service medical evidence demonstrates complaints of and treatment for low back pain. The Veteran has alleged that his lumbar spine symptomatology has remained consistent since his discharge from service. As the RO adjudicated the claim without affording the Veteran a VA examination, the Board remanded the case for an examination in light of the Veteran's lay assertions. See 38 C.F.R. §§ 3.159(a)(2) and (c)(4). The July 2012 examination report reflects a diagnosis of lumbar spine DDD, radiculopathy, and L5-S1 spondylolithesis. The examiner also noted the in-service lifting injury and treatment documented in the service treatment records, and that the Veteran's current treatment had included pain medications and injections. Physical examination revealed lumbar spine forward flexion of 0 to 80 degrees; lateral flexion 0 to 10 degrees bilaterally; and, lateral rotation 0 to 20 degrees bilaterally, with pain at the end point of all movements. The Veteran was unable to backwards extend beyond 0 degrees. Normal range of motion of the lumbar spine is forward flexion of 0 to 90 degrees; backwards extension to 30 degrees; and lateral flexion and rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. There was tenderness to palpation in the paraspinal musculature and guarding or muscle spasm but not severe enough to result in an abnormal gait or spinal contour. Muscle strength was normal, and there was no atrophy. Straight leg raising was negative bilaterally, and the Veteran's reflexes and sensation in the lower extremities were normal. The examiner noted imaging studies showed arthritis. The examiner opined that it was not at least as likely as not that the Veteran's currently diagnosed lumbar spine disorder is causally related to his active service. In so finding, the examiner noted the Veteran's lumbar spine manifested normal wear and tear. Further, the examiner noted, the Veteran experienced a lumbar strain during his active service, and a lumbar strain has not been shown to cause spondylolithesis or DDD. The Board interprets "has not been shown" to mean the examiner's reference to medical literature on the subject. Notwithstanding the x-ray examination evidence of record, the Veteran asserted in a January 2009 statement that his current low back problem was not due to arthritis, but rather to a herniated disc. The Board notes that July 2006 private records related to one of the Veteran's incarcerations lists a herniated disc among his problem areas, but there is no indication of any confirmatory diagnostic tests. Further, since a herniated disc is not a symptom readily observable to the naked eye, the Board rejects the Veteran's assertion to the extent it may reflect his personal lay opinion. See 38 C.F.R. § 3.159(a)(1) and (2); see also Jandreau, 492 F. 3d 1372. In any event, the issue currently before the Board is whether the Veteran's lumbar spine pathology is causally related to service. As noted by the VA examiner, the Veteran was diagnosed with a lumbar strain during his active service. There is no evidence the Veteran's lumbar spine arthritis manifested at least to a compensable degree during active service or within one year of his discharge. Neither is there evidence from which the Board may infer it did. Hence, there is no factual basis for service connection on a presumptive basis for a chronic disease. 38 C.F.R. §§ 3.307(a) and 3.309(a). In light of the fact the preponderance of the evidence shows the Veteran's lumbar spine DDD did not manifest in active service or within one year afterwards, the Board finds no factual basis for allowing service connection as a chronic disease on the basis of the current diagnosis of lumbar spine DDD. 38 C.F.R. § 3.303(b). As discussed below, the Board rejects the Veteran's assertion of continued symptomatology of arthritis. VA outpatient records dated in May 2001 reflect the Veteran's report of a history of low back pain after he slipped on a wet floor while at a prison farm. A September 2003 VA outpatient entry notes a reported history of chronic low back pain over several years. He worked as a roofer and reported a history of heavy lifting. An October 2003 VA x-ray was read as having shown mild hypertrophy of the facets at L5-S1 due to osteoarthritis, and a diffuse bulging disc at the same level but no evidence of spinal stenosis. Additionally, a September 2010 VA x-ray examination reports note the lumbar spondylolithesis had manifested since 2008. As noted earlier, the VA examiner opined the Veteran's lumbar spine pathology was due to normal wear and tear, and that a lumbar strain is not a precursor for spondylolithesis. In light of the Veteran's post-service history of work that entailed heavy lifting, back trauma such as that from a fall while incarcerated, and the fact the spondylolithesis manifested decades after the Veteran's in-service strain, the Board finds the examiner's rationale for the VA examiner's opinion is supported by the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (medical opinion must fully discuss reasons and bases for opinion); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). In light of all of the above, the Board is constrained to find the preponderance of the evidence is against the claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). In reaching this decision, the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for a lumbar spine disability, including DDD, is denied. REMAND In the June 2012 remand, the Board noted that not all of the Veteran's personnel records had been associated with the claims file. The Veteran testified at the hearing that he was disciplined by his superior officers on several occasions and that he received least one Article 15 for molestation of a female during service. The record also contains a Characterization of Service Checklist for Administrative Discharge Actions, Form 4939, shows a recommendation for administrative separation, as the Veteran had consistently exhibited a disregard of military rules and regulations. The related service personnel records, however, are not located in the claims file. Finally, a form letter associated with the Veteran's administrative discharge reflects that a mental health examination was usually a part of the discharge process. It is signed by the unit commander, but the subsequent signature blocks are blank. These records are pertinent to the claim, on remand, 38 U.S.C.A. § 5103A, but there is no indication in the claims file that the AMC attempted to obtain them as directed in the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO will ask the National Personnel Records Center to provide any additional service personnel records related to the Veteran extant not previously provided. All efforts to obtain these records must be documented in the claims file. 2. If, and only if, additional service personnel records are obtained, return the claims file to the examiner who conducted the July 2012 mental examination. Ask the examiner if the additional service personnel records alters in anyway the diagnosis and opinion rendered in July 2012 (no mental diagnosis had been found at that examination). The examiner is asked to provide a full explanation for any opinion rendered. In the event the examiner who conducted the July 2012 examination is no longer available, refer the claims file to an equally qualified examiner. Should the substitute examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the AMC/RO will arrange the examination. The claims file must be provided for review by the examiner as part of the examination. 3. Thereafter, the AMC/RO must review the claims file and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. 4. After completion of all of the above, the AMC/RO should re-adjudicate the claim on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with an SSOC. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He 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). ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs