Citation Nr: 1308080 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 03-08 521A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for upper back disability. 2. Entitlement to service connection for a lower back disability. 3. Entitlement to service connection for a rash on the hands and feet. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from May 1984 to May 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a decision rendered by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). A hearing was held before the undersigned Veterans Law Judge in July 2004. In February 2005, the Board remanded the case for additional development of evidence. The Board issued a decision in June 2006 which denied service connection for a back disorder and denied service connection for a skin disorder. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims. In June 2008, the Court issued a Memorandum Decision which vacated the Board's decision and remanded the matter for further action. In turn, in March 2010, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) in order to assist the Veteran with the development of the claims. In pertinent part, he was directed to undergo VA examinations. He underwent the examinations in May 2010. Thereafter, the AOJ continued the denial of the claims and forwarded the matters to the Board for further review. Most recently, in November 2011, the Board again remanded the claims. They are once again before the Board for review. The issues of entitlement to service connection for an upper back disability and for a skin condition on the hands and feet 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 During active military service the Veteran was diagnosed with mild degenerative changes of the lumbar spine and was treated for chronic low back pain. He currently has the same disability. CONCLUSION OF LAW The criteria for service connection for a low back disability, manifested by chronic pain and mild degenerative changes, have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act 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, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Here, in an August 2003 letter, VA advised the Veteran of the criteria for service connection. The Board notes that the Veteran's service treatment records are missing and unavailable for review in this case. The Board is aware that when service records are unavailable through no fault of the veteran, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). As will be explained below, however, the Board concludes that any heightened duty to assist has been met. VA assisted the Veteran by obtaining VA and private outpatient treatment records. The Veteran underwent VA examinations as described herein. Finally, as noted, the Veteran set forth his contentions during hearing before the undersigned. In this case, the Board is granting the full benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Background and Analysis The Veteran contends that a current low back disability was incurred in service following treatment for a hemorrhoid condition. During the hearing before the undersigned, he testified that he did not sustain a low back injury in service. Rather, because back pain started following a hemorrhoid procedure, he believed that there was relationship between his current low back condition and treatment for hemorrhoids in service. The Veteran's service treatment records are missing. Numerous efforts have been undertaken to obtain the records. The Veteran has been advised of this fact. Despite the absence of service treatment records, the record reflects that in March 1996, while the Veteran was still on active duty, he filed a claim with VA seeking entitlement to service connection for a low back disability. He underwent a VA General Medical examination in May 1996; again just prior to his discharge from active duty. The examination yielded a diagnosis of chronic low back pain, alleged to have begun after spinal anesthesia for hemorrhoid surgery. In addition, an x-ray examination revealed evidence of minimal degenerative changes. During VA treatment in August 1997, he was assessed with chronic back pain. During VA treatment in January 2002, he described a history of low back pain that started in service. In a January 2003 statement, one of the Veteran's service buddies described witnessing the Veteran with back pain in service, particularly following treatment for hemorrhoids. In May 2004 VA treatment, the Veteran described a history of low back pain since the 1990's. In July 2006, the Veteran submitted several statements from family members and friends. They each attested to witnessing the Veteran with low back pain since service. During VA treatment in October 2007, the Veteran described a 20 year history of low back pain. He was prescribed Tylenol with codeine. Finally, in a November 2012, another service buddy recounted witnessing the Veteran with back pain while in service during which he was unable to exercise and was placed on light duty. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. 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 Hickson v. West, 12 Vet. App. 247 (1999). In the alternative, pursuant to 38 C.F.R. § 3.303(b) (2012), entitlement to service connection may be established by two other means-chronicity and continuity of symptomatology. In particular the regulation provides: With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b)(2012). It further provides: Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The plain language of § 3.303(b) establishes a presumption of service connection (rebuttable only by "clearly attributable intercurrent causes") for a chronic disease which manifests during service and then again "at any later date, however remote." Groves v. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008). A "chronic disease" for purposes of § 3.303(b) only refers to a disease as specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). "Arthritis" is among the chronic diseases referenced in 38 C.F.R. § 3.309(a). Here, the Veteran was found to have mild degenerative changes of the lumbar spine while in service; in essence, arthritis. In addition, there were findings of chronic low back pain. Hence, there is a notation of a chronic disease in service. Because there was only one finding of a low back condition in service, diagnosis of chronicity may be legitimately questioned. Nevertheless, here there is evidence of continuity of symptoms since service discharge. As noted above, the Veteran has consistently reported that low back symptoms had their onset in service. The Board has no reason to doubt the Veteran's credibility. The Veteran continues to have the same low back disability, described variously as mild degenerative changes. (See, e.g. May 2010 VA examination diagnosis.) As such, the requirements for service connection under 38 C.F.R. § 3.303(b) have been met. In making this determination, the Board acknowledges that VA medical opinions were rendered in May 2010 and November 2011 that appear to be against the claim. The Board affords neither opinion, however, any probative weight. First, while the May 2010 VA examiner opined that the current low back disability was not the result of treatment for hemorrhoids in service, no rationale was provided. Moreover, there was no recognition by the examiner that the Veteran was diagnosed with chronic low back pain with mild degenerative changes while in service. Finally, the examiner did not address the reports documenting continuity of symptomatology. The Board also acknowledges that the November 2011 VA examination found that the current findings were consistent with "normal wear and tear" and because the Veteran had a post-service work history in a warehouse, that she could not isolate the low back symptoms that were related to service. Here, again the VA examiner does not address the in-service findings of arthritis. Moreover, the examiner seems to accept that some of the current symptoms are associated with service. The law governing VA benefits do not require that the current symptoms be "isolated" from any current disability. Rather, the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Even though the Board discounts the VA examination opinions addressing the etiology of the low back disability, remand of this matter is not required for another medical opinion. Medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence, regardless of its date, shows that a Veteran had a chronic disease in service, or during an applicable presumptive period, and that he still has the same chronic disease. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). See also 38 C.F.R. § 3.303(b). Accordingly, after affording the Veteran the benefit of the doubt, the Board finds that the criteria for service connection have been met. ORDER Service connection for a low back disability, manifested by chronic pain and mild degenerative changes, is granted. REMAND Regarding the remaining claims for service connection for an upper back disability and service connection for a skin condition of the hands and feet, the Veteran's representative argues that the November 2011 VA examination opinions were inadequate. Specifically, the representative argues that the examiner, in addressing the etiology of the upper back condition, failed to appropriately consider the Veteran's lay history and reports of continuity of symptomatology. Here, in May 2001, the Veteran underwent a T3-T5 laminectomy due to a preoperative diagnosis of a thoracic syrinx. The November 2011 VA examiner relies on a physician's statement that the disability was not the result of trauma or injury. While this medical assessment may certainly be true; the laws relating to service connection do not require that a particular disability be due to trauma or injury. Rather, they only require that the disability or symptoms of disability was/were initially incurred during service. Here, at the time of the May 2001 surgical procedure, the Veteran reported a "seven year history of back pain." This statement would appear to relate the upper back symptoms to service. As such, while the Board regrets the delay that will result from this proposed action, the Board agrees that the November 2011 VA opinion is inadequate and that a supplemental opinion is required. Regarding the opinion as to the etiology of the skin condition, the Veteran's representative argues that the examiner misunderstood the criteria for service connection and failed to distinguish which skin symptoms were due to service and which symptoms were due to post-service employment or other life events. In particular, the VA examiner stated that the skin conditions could "occur to anyone, anywhere and cannot be claimed as directly related to service." The Board agrees that the opinion is inadequate. While it is certainly true that a skin condition such as eczema or tinea pedis can occur to anyone, here, the Veteran is claiming that the condition began in service. This is certainly the kind of disability that can be claimed as having a service origin and the examiner's claim to the contrary is erroneous. The Board, however, is precluded from exercising medical judgment, and cannot make a medical determination as to the most likely etiology of a current skin condition absent probative medical or lay evidence. Because the opinion is based on a faulty assumption regarding the laws pertaining to service connection, additional medical findings must be rendered. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA spine disorders examination. The claims file must be made available for review by the examiner. The examiner should also comment as to the likelihood that any upper back disorder was caused by a back injury or heavy lifting during service. The examiner should offer a fully supported explanation as to all opinions. In the event that the examiner concludes that an opinion cannot be offered without resorting to speculation, the examiner should fully explain the reason why the opinion cannot be offered. 2. The Veteran should be scheduled for a VA skin disorders examination. To the extent reasonably possible, the examination should be scheduled during a period of time when the skin disorder is having a flare-up. The claims file must be made available for review by the examiner. The examiner should comment as to the likelihood that any currently found skin disability is related to exposure to petroleum products in service. For the sake of the opinion, the examiner should accept the Veteran's account of having such exposure to petroleum products in service. The examiner should offer a fully supported explanation as to all opinions. In the event that the examiner concludes that an opinion cannot be offered without resorting to speculation, the examiner should fully explain the reason why the opinion cannot be offered. 3. The RO/AMC should review the examination reports to determine if they are in compliance with this REMAND. If any of the reports is deficient in any manner, it should be returned to the physician, along with the claims file, for immediate corrective action. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the RO/AMC should readjudicate the appellant's claims. If the benefits sought on appeal remain denied, the appellant should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. 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). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs