Citation Nr: 1309822 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 07-15 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a compensable disability rating for service-connected sinusitis. 2. Entitlement to service connection for a lower back disorder, referred to as lumbosacral strain. 3. Entitlement to service connection for chronic rhinitis, to include as secondary to service-connected sinusitis. 4. Entitlement to service connection for trigeminal neuralgia, to include as secondary to service-connected sinusitis. 5. Entitlement to service connection for a disability manifested by a sclerotic left mastoid tip, to include as secondary to service-connected sinusitis. 6. Entitlement to service connection for an ear disorder, claimed as otitis, to include as secondary to service-connected sinusitis. 7. Entitlement to service connection for a respiratory disorder, claimed as asthma, to include as secondary to service-connected sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to June 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2006 and October 2006 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In May 2012, the Board previously reopened the Veteran's claim of entitlement to service connection for a lower back disorder, and remanded the underlying claim on the merits, along with the remaining issues on appeal for additional development. The case has since been returned to the Board. In this decision, the issue of entitlement to service connection for a lower back disorder is addressed on the merits. However, the remaining claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The credible medical evidence of record does not indicate a link between the Veteran's current lower back disorder and his military service. CONCLUSION OF LAW The Veteran's lower back disorder was not incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (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)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, letters dated in February 2005, January and March 2006 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection for a lower back disorder, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. These letters also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. The case was last readjudicated in November 2012. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA treatment records, Social Security Administration (SSA) records, private treatment records, and a report of the June 2012 VA examination. Additionally, the prior May 2012 remand instructions were substantially complied with concerning the lumbar spine disability claim. Instructions pertinent to the claim being decided included obtaining additional VA treatment records, and scheduling the Veteran for an appropriate VA examination concerning his claim. In response, the RO obtained current VA treatment records through May 2012, which have been associated with the Veteran's virtual claims file. The Veteran was also provided a VA examination in June 2012. Thus, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Veteran asserts that he has a lower back disorder, diagnosed as degeneration of his lumbar or lumbosacral intervertebral discs that is the result of his military service. Nevertheless, for the reasons that follow, his claim shall be denied. Service connection may be granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). Arthritis will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97. See also Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). 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 United States Court of Appeals for Veterans Claims (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). The Veteran's May 1980 separation medical history report shows the Veteran gave a history of recurrent back pain from lifting heavy objects and running. There are no other references to back pain in the Veteran's service treatment records, including any specific injuries which may result in back pain or specific back disorder. The spine was characterized as normal on clinical evaluation at service separation. Following service, in October 1984, a psychiatric report from the Pennsylvania Bureau of Disability Determination notes the Veteran's report of back problems in service after basic training. During this examination, the Veteran reported that he suffered several falls and injured his back during basic training. He claims that it is a persistent pain in his lower back and goes into the posterior part of the leg. Upon physical examination, tenderness over the lumbosacral area, more on the right side than the left, was noted. The examining physician noted there was no evidence of deformity, lordosis, scoliosis, or muscle atrophy in the extremities. The physician diagnosed the Veteran with "back pain, probably lumbar type syndrome," but he does not provide an etiological opinion as to the origin of this disorder. An October 1984 x-ray noted a transitional vertebra at L-5, but otherwise normal lumbar spine. Following this October 1984 examination and x-ray, the record is completely silent regarding any relevant symptoms or treatment for a lower back disorder until the Veteran presented at the San Juan VA Medical Center in May 2002. At that time, a notation on the treatment records indicates lower back pain "beginning many months ago." The Board notes that his VA treatment records from May 2002 through May 2012 reflect consistent complaints of and treatment for his lower back. However, there are no opinions addressing the purported relationship between the Veteran's lower back disorder and his military service. In June 2012, in compliance with the Board's May 2012 remand directives, the Veteran was scheduled for a VA compensation examination to determine the nature and etiology of his lower back disorder. The June 2012 VA examiner noted the presence of arthritis and provided a diagnosis of lumbago. He then concluded, after a review of the claims file and physical examination of the Veteran, that it is more likely than not that the current lower back disorder is not due to his active service because there is no evidence of a lumbar disorder during service. The Board notes that the only evidence in support of the Veteran's claim is his own substantiated beliefs that his lower back disorder is due to his military service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. The Board acknowledges that the Veteran is competent to give evidence about what he has experienced, i.e., in this case, that he has experienced recurrent lower back pain. However, as a layman without proper medical training and expertise, he is not competent to provide probative medical evidence on a matter such as the diagnosis or etiology of a specific back disability. For example, he is not competent to state that his currently diagnosed arthritis or lumbago or any other back disability is a result of in-service injuries. There is simply no competent evidence of a nexus between the Veteran's current lower back disorder and his active service. The Veteran's VA treatment providers have not found that there is a causal link between his disorder and his active service. To the extent that the Veteran contends that such a link exists, the Board again finds that he is not competent to do so. Under these circumstances, a basis upon which to grant service connection for a low back disorder has not been presented. In reaching this conclusion, the Board also notes that the Veteran has provided inconsistent statements regarding the onset of his lower back pain. Specifically, on his May 1980 separation medical history report, the Veteran initially stated that he suffered from recurrent lower back pain due to lifting heavy objects. During the October 1984 examination, he reported that he fell during basic training and injured his back. In 2002, he reported onset of pain months (not years) ago. Based on the inconsistencies in the Veteran's own statements concerning onset of the claimed disorder, the Board does not find the Veteran's statements to be credible. For these reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a lower back disorder. And inasmuch as the preponderance of the evidence is against this claim, there is no reasonable doubt to resolve in his favor, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R § 3.102. ORDER The claim of entitlement to service connection for a lower back disorder is denied. REMAND The May 2012 Board remand directed the RO to provide the Veteran a new VA examination to assess the severity of his service-connected sinusitis, and to address the etiology of the claimed ear disorder, rhinitis, trigeminal neuralgia and left sclerotic mastoid tip. The AMC's November 2012 supplemental statement of the case implies such an examination was accomplished as it appears to quote from it, and mentions a June 11, 2012 examination report. However, such a report itself does not appear to be associated with either the electronic file or the paper file. The missing examination report should be obtained and associated with the file, or a new examination conducted that addresses the questions the Board sought answered. With regard to the Veteran's service connection claim for a respiratory disorder, claimed as asthma, pursuant to the May 2012 remand directives, the Veteran was scheduled for a VA compensation examination in June 2012 to address the potential relationship between any current respiratory condition and service. The examiner was informed the Veteran reported experiencing shortness of breath, coughing, and asthma-like symptoms during service, as reflected by March and May 1979 service treatment records. The Veteran's symptoms were assessed as attributable to a viral syndrome and an upper respiratory infection. The Veteran's post-service treatment records reflect that he was been assessed with asthma in 2004, and his most recent VA treatment records characterize his respiratory disorder as chronic bronchitis, as detected by chest x-ray. However, upon physical examination, the examiner only provided a diagnosis of asthma, and did not comment on the chest x-ray providing a diagnosis of chronic bronchitis. By limiting his inquiry and opinions to asthma, the necessary information to decide the Veteran's appeal was not obtained, and additional development is necessary as detailed below. Finally, while on remand, the RO should obtain any additional VA treatment records, dated since May 2012, if available. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from May 2012 to the present, if in existence. 2. Associate with the file any report of examination of the Veteran's sinuses conducted after the Board's May 2012 Remand (suggested by the November 2012 supplemental statement of the case as accomplished June 11, 2012), and which also addressed the etiology of the Veteran's claimed ear disorder, chronic rhinitis, trigeminal neuralgia, and left sclerotic mastoid tip. If the report cannot be located, another examination should be scheduled to accomplish the actions the Board had previously requested. Specifically, this was to assess the severity of his service-connected sinusitis and to address the etiology of the Veteran's claimed ear disorder, chronic rhinitis, trigeminal neuralgia, and left sclerotic mastoid tip. The examiner should review the Veteran's claims file in conjunction with the examination and conduct a relevant physical examination of the Veteran. When assessing the severity of the Veteran's service-connected sinusitis, the examiner should conduct all relevant diagnostic studies and characterize the symptoms, severity, and frequency of this condition. With regard to the Veteran's claimed condition of an ear disorder, chronic rhinitis, trigeminal neuralgia, and a disability left sclerotic mastoid tip, the examiner should review the relevant evidence of record, including current diagnoses or radiological findings of chronic rhinitis, trigeminal neuralgia, and a left sclerotic mastoid tip. The examiner should further note the Veteran's in-service treatment for severe otitis media and 2006 VA treatment for fungal infections of the ears. With regard to the etiology of these claimed conditions, the examiner should clarify whether the Veteran does indeed have a current disability manifested by a sclerotic left mastoid tip. The examiner should also opine whether it is at least as likely as not (i.e. 50 percent probability or greater) that any claimed currently-diagnosed disorder is either related to service, secondary to the Veteran's service-connected sinusitis, or aggravated by his service-connected sinusitis. The examiner should provide a complete rationale for any opinion expressed. If it is determined that a medically-sound opinion cannot be reached without resorting to speculation, the examiner should provide an explanation as to why that is so, to include a recitation of the missing facts necessary to render a non-speculative opinion. 3. Return the Veteran's claims file to the VA examiner who conducted the Veteran's June 2012 VA respiratory diseases examination, if available, and if not available, to an appropriate VA medical professional. If it is deemed necessary to reexamine the Veteran in order to obtain the requested opinion that should be accomplished. The examiner should again review the Veteran's claims file, to include his in-service complaints of a coughing, shortness of breath, and asthma-like symptoms, and post-service diagnoses of asthma and chronic bronchitis. The examiner is then asked to opine whether it is at least as likely as not (i.e. 50 percent probability or greater) that the currently diagnosed disorders (which as of this writing were chronic bronchitis and asthma), are directly related to service, secondary to the Veteran's service-connected sinusitis, or aggravated by his service-connected sinusitis. The examiner should provide a complete rationale for any opinion expressed. If it is determined that a medically-sound opinion cannot be reached without resorting to speculation, the examiner should provide an explanation as to why that is so, to include a recitation of the missing facts necessary to render a non-speculative opinion. 4. Then, readjudicate the Veteran's increased rating and service connection claims. If the full benefit sought with regard to any claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals . The Board indicated the Veteran's last VA examination was in February 2006 because the Veteran was too ill to attend the July 2008 examination. However, he was not rescheduled for a new VA examination, and as reflected in a January 2012 statement, the Veteran's representative requested that the Veteran be afforded a new examination, given the length of time since this condition was assessed for VA purposes. Despite the Board's directives, the Veteran was not scheduled for a VA compensation examination to reassess the severity of his service-connected sinusitis. Additionally, the Board directed the RO to schedule the Veteran for VA compensation examinations for the remaining claims of entitlement to service connection for an ear disorder, chronic rhinitis, trigeminal neuralgia, and a disability manifested by a sclerotic left mastoid tip, to include whether they are secondary to or aggravated by his service-connected sinusitis. As previously noted, the record reflects current diagnoses or radiological findings of these claimed disorders, the Board again requests that the otolaryngological examination provided to the Veteran in conjunction with his sinusitis increased rating claim should also address the etiology of these claimed disorders, to include whether they are secondary to or aggravated by his service-connected sinusitis. Thus, these claims must be remanded in order to obtain the medical opinions previously requested by the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance). As such, the VA examiner determined that the Veteran's asthma is not due to his military service as there was no evidence of this disorder during service. Additionally, the examiner determined the currently diagnosed asthma is not proximately due to or the result of the service connected sinusitis because the medical evidence does not support the fact that sinusitis causes asthma. As these responses do not adequately address the questions posed, the Board finds that the claim must be remanded to ensure that a sufficient VA medical opinion that is compliant with the Board's prior remand directives is obtained. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Stegall, 11 Vet. App. at 271. (holding that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance). Department of Veterans Affairs