Citation Nr: 1308533 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 03-22 231 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Whether the element of service incurrence for back and bilateral foot injuries has been established. 2. Entitlement to service connection for back disability. 3. Entitlement to service connection for bilateral foot disability. 4. Entitlement to an initial rating in excess of 10 percent for residuals of a head injury. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from April 1944 to November 1944. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2002 rating decision in which the RO, inter alia, denied petitions to reopen claims for service connection for back and bilateral foot disabilities. In December 2002, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2003, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2003. In June 2004, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO in Cleveland, Ohio granted the petitions to reopen the claims for service connection for back and bilateral foot disabilities, but denied the claims on the merits (as reflected in an October 2006 supplemental SOC (SSOC)), and returned those matters to the Board for further appellate consideration. In May 2007, the undersigned Veterans Law Judge granted the motion of the Veteran's former representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C)(West 2002) and 38 C.F.R. § 20.900(c) (2007). In June 2007, the Board reopened the Veteran's claims for service connection for back and bilateral foot disabilities, but denied the claims on the merits. The Veteran appealed the June 2007 Board decision to the United States Court of Appeals for Veterans Claims (Court). In October 2008, the Court granted a joint motion for remand filed by representatives for both parties, vacating the Board's decision with respect to the Board's denial of each claim on the merits, and remanding the claims to the Board for further proceedings consistent with the joint motion. In February 2009, the Board remanded the claims on appeal to the RO for further action, to include additional development of the evidence. After completing the requested development, the RO in Buffalo, New York RO continued to deny the claims (as reflected in a June 2009 SSOC) and returned these matters to the Board for further appellate consideration. In October 2009, the Board again denied the Veteran's claims for service connection for back and bilateral foot disabilities. The Veteran appealed the October 2009 Board decision to the Court. In October 2010, the Court granted a joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claims to the Board for further proceedings consistent with the joint motion. In March 2011, the Board again denied the Veteran's claim for service connection for back and bilateral foot disabilities. The Veteran again appealed the March 2011 decision to the Court. In October 2012, the Court issued a Memorandum Decision, vacating the Board decision, with the exception of the Board's determination that the presumption of soundness was not rebutted, and remanding the remaining matters for further development consistent with the Court's decision. The Board notes that, while the Veteran previously was represented by the American Legion, in September 2007, the Veteran granted a power-of-attorney in favor of a private attorney, Virginia A. Girard-Brady, with regard to the claims on appeal. The Veteran's current attorney has submitted written argument on his behalf. The Board has recognized the change in representation. The Board's decision addressing the matter of whether the element of service incurrence for back and bilateral foot injuries has been met, is set forth below. The claims for service connection for back disability and bilateral foot disability, as well as the claim for an initial rating in excess of 10 percent for residuals of a head injury-for which the Veteran has completed the first of two actions required to place the matter in appellate status-are addressed in the remand following the order; these matters are being remanded to the RO, via the AMC. VA will notify the appellant when further action, on his part, is required. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. The Veteran's Virtual VA electronic claims folder was reviewed in connection with the matter herein decided.. FINDING OF FACT Competent and credible evidence indicates that the Veteran suffered injury to his back and feet while in service. CONCLUSION OF LAW The element service incurrence for back and bilateral foot injuries has been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306(a), 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition as to the matter resolved herein, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). If a chronic disease, such as arthritis, becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As directed in the October 2012 Court Memorandum Decision, the Board finds that the element of service incurrence of back and bilateral foot injuries has been met. In this appeal, only pages three and four of the Veteran's service entrance examination report is of record; the remainder of that report, and most of the Veteran's other service records, are presumed to have been destroyed by fire. According to the available portion of the entrance report, the Veteran had no physical or mental defects at enlistment. His feet were described as normal, and for musculoskeletal defects, the examiner reported "no." Thus, as there is no documented notation at entrance as to the existence of any back or foot disability, the presumption of soundness is for application. See 38 U.S.C.A. § 1111; see also Doran v. Brown, 6 Vet. App. 283, 286 (1994). A treatment noted dated in May 1944, less than a month after the Veteran entered service, indicates that he had a history of pain in the feet and back for many years, with no injury or treatment. The report of the November 1944 separation examination indicates in the medical history section, "backache - 5-6 years. Never Hospitalized," and "Weak feet, 5 yrs. Never hospitalized." The report reflects that these problems existed prior to service ("EPTS"). Although the available service treatment records reflect notations as to the Veteran's report of back and foot problems-particularly, pain-prior to service, these records include no actual diagnosis of any back or foot disability. The Veteran and lay witnesses have asserted that the Veteran was generally in good health prior to service. Post service, the record reflects an April 2005 diagnosis of degenerative changes of the Veteran's back and feet. However, the evidence of record does not undebatably show the existence of any back or foot disability prior to service. Although the Veteran reported back and foot problems prior to service, there was no diagnosis of any such disability contemporaneous to service, and the current degenerative changes of the back and feet were not shown until many years after service. The Board notes that the Veteran's complaints of pain, alone, without evidence of underlying pathology, do not constitute a disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, vacated and remanded in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). Thus, although the Veteran had a reported history of pain in the feet and back for many years prior to service, given the evidence above, it must be concluded that the evidence of record does not undebatably show that either a back or foot disability pre-existed service. Because the medical opinions, lay statements, and medical evidence of record do not meet the formidable evidentiary burden of clear and unmistakable evidence of pre-existing back or foot disability, there is therefore no corresponding burden on VA's part to establish, by clear and unmistakable evidence, that any pre-existing back problems were not aggravated during service (although, as indicated below, an opinion that includes comment on this point has been provided). As the presumption of soundness has not been rebutted, these claims essentially become ones for service connection based on service incurrence. See 38 U.S.C.A. § 1111; Wagner, 370 F.3d at 1094-96 (holding that where the presumption of soundness is not rebutted, a claim for service connection based on aggravation is converted into a claim for service connection based on service incurrence). Here, the Veteran attributes his current back and bilateral foot disabilities to injuries he suffered when struck by a falling tree branch during a hurricane in service. The Board is cognizant that most of the Veteran's service treatment records are not available for review and are presumed lost or destroyed. Given these circumstances, the Board has carefully considered the Veteran's statements as to in-service injury. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In light of the available service treatment records and the Veteran's statements concerning in-service injury, the Board finds that the element of service incurrence of a back and bilateral foot injuries has been established. In sum, the presumption of soundness has not been rebutted; and in light of the Veteran's description of an in-service injury as well as the service treatment records documenting back and feet problems, in accordance with the Court Memorandum Decision, the Board finds that the element of service incurrence for both back and bilateral foot injuries has been established. ORDER As the element of service incurrence for back and bilateral foot injuries has been established, to this limited extent, the appeal is granted.. REMAND In light of the Court Memorandum Decision and the Board's review of the claims file, further RO action on the full claims for service connection, along with the claim for higher rating is warranted. The Veteran was afforded VA examinations in April 2005 with respect to the issues of back disability and bilateral foot disability. However, in its Memorandum Decision,, the Court determined that these examinations were inadequate because the examiners failed to provide an opinion as to the likelihood that the Veteran's present back and foot disabilities were causally related to service, given the finding that the Veteran suffered an in-service incurrence of injury to his back and feet. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159 (2012). McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Under these circumstances, the Board finds that a new medical examination with an opinion by an appropriate physician is necessary in resolving the claims for service connection. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the reopened claims 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. The Virtual VA electronic file currently includes outpatient treatment records from the VA Medical Center (VAMC) in Syracuse, New York, dated from November 2012; however, more recent records from this facility may exist. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since November 2012, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. Further, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims for which an appeal has been perfected.. Lastly, the claims file reflects that in an December 2011 rating decision, the RO continued an initial 10 percent rating for residuals of head injury that had been previously assigned in an April 2011 rating decision. In September 2012, the Veteran, through his representative, submitted a correspondence to the RO that clearly expressed his disagreement with the rating assigned in the December 2011 rating decision. In November 2012, the RO acknowledged this document as an NOD. However, to date, the RO has not yet issued an SOC with respect to that claim, the next step in the appellate process. See 38 C.F.R. § 19.29 (2012); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, this matter must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2012). Accordingly, these matters are hereby REMANDED for the following action: 1. The RO must furnish to the Veteran and his representative an SOC with respect to the issue of an initial rating in excess of 10 percent for residuals of head injury that was continued in the December 2011 rating decision, along with a VA Form 9, and afford them the appropriate opportunity to submit a substantive appeal perfecting an appeal on that issue. The Veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected-as regards the matter of a rating in excess of 10 percent rating for residuals of head injury, within 60 days of the issuance of the SOC 2. The RO should obtain from the Syracuse VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran since November 2012. All records received should be associated with the claims file. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. 3. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim(s) on appeal that is not currently of record. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo VA examination, by an appropriate physician at a VA medical facility, to address the etiology of his back and foot disabilities. The pertinent evidence from Veteran's claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current disability(ies) affecting the back and each foot. Then, with respect to each diagnosed disability, the physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is at least a 50 percent or greater probability), that the disability had its onset in or is otherwise medically related to service, to include injury incurred therein, In rendering the requested opinion, the physician should specifically consider the in- and post-service treatment records, as well as the Veteran's contentions. The physician should be informed that the element of service incurrence for back and bilateral foot injuries has been established. The examiner should set forth all examination findings, together with the complete rationale for the conclusions reached, in a printed (typewritten) report. 6. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 7. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal. If the Veteran fails, without good cause, to report to the examination scheduled in connection with the reopened claims for service connection, in adjudicating these claims, the RO should apply the provisions of38 C.F.R. § 3.655(b)., as appropriate. Otherwise, the RO should adjudicate each claim in light of all pertinent evidence (to particularly include all evidence added to the record since the RO's last adjudication of the claim) and legal authority. 9. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). The RO is reminded that this appeal has been advanced on the Board's docket. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs