Citation Nr: 1312462 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 08-39 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from June 1945 to November 1946. This case comes to the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was scheduled to appear at a Travel Board hearing in May 2012, but in correspondence received, he cancelled his request for a hearing and requested that the case be forwarded to the Board for appellate consideration. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. This case was most recently before the Board in July 2012, wherein it was remanded for additional development. The record indicates that the RO complied with the Board's request; the Veteran was provided with a VA examination in November 2012, and efforts were made to obtain VA treatment records from 1960 to 1969, although these records were found to be unavailable. The Board finds that there has been substantial compliance with the directives of the remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy during service. 2. The Veteran sustained a low back injury in service. 3. Symptoms of low back arthritis have been continuous since service separation. 4. The diagnosed ankylosing spondylitis and degenerative disc disease of the lumbar spine, status-post laminectomy, are related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for degenerative disc disease of the lumbar spine, status-post laminectomy, with ankylosing spondylitis are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this decision, the Board grants service connection for a low back disability. As such action represents a complete grant of the benefit sought on appeal, no further discussion of VA's duty to notify and assist as to this claim is necessary. Legal Criteria for Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran has been diagnosed with a "chronic disease" of arthritis listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claimed disabilities. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has been diagnosed with ankylosing spondylitis, which is rheumatoid arthritis of the spine. See Godfrey v. Brown, 7 Vet. App. 398, 403 (1995); Wilson v. Brown, 7 Vet. App. 542, 544 (1995) (defining ankylosing spondylitis as rheumatoid inflammation of the vertebrae); Ferguson v. Derwinski, 1 Vet. App. 428, 430 (1991) (noting that ankylosing spondylitis "would be rated under 38 C.F.R. § 4.71, DC 5009 (Arthritis, other types) which refers back to DC 5002"); Wallin v. West, 11 Vet. App. 509 (1998) (noting that ankylosing spondylitis is the form of rheumatoid arthritis that affects the spine, and is a systemic illness that produces pain and stiffness as a result of inflammation of the sacroiliac, intervetebral, and costovertebral joints). Arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to that disability. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2012); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. §3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Analysis of Service Connection for a Low Back Disorder The Veteran contends his current back disability is due to an injury suffered in service. The Veteran asserts that he sustained a back injury while on active duty, and that a treatment report stating that he received treatment for nasopharyngitis and laryngitis, rather than a back disorder, is erroneous. He asserts that he actually was treated for a back injury in service. In this Veteran's case, the evidence does not show, nor does the Veteran allege, that he engaged in combat with the enemy during active service. The Board also finds that there is no objective evidence that the Veteran "engaged in combat with the enemy." For this reason, 38 U.S.C.A. § 1154(b) is not applicable in this case. In this case, the Veteran's complete service treatment records from his entire period of active duty service are unavailable. Correspondence dated in February 2006 shows the National Personnel Records Center indicated the records are unavailable. In February 2006, the Veteran was informed the service treatment records were not available and what efforts were made to try to obtain the records, including requesting any records in the Veteran's possession. The Veteran subsequently indicated he had no records to submit. In appeals where a veteran's service treatment records are unavailable, there is a heightened obligation to assist in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). In this case, the Board has considered carefully the benefit of the doubt doctrine in finding that, notwithstanding an absence of treatment record entries, the Veteran sustained low back injury in service, that symptoms of arthritis have been continuous since service separation, and on the question of whether the diagnosed ankylosing spondylitis (a form of arthritis) is related to the injury in service, given that the Veteran has also been diagnosed with degenerative disc disease, which is not arthritis, and for which presumptive service connection based on continuous post-service symptoms is not available. See 38 C.F.R. § 3.303(b). Additionally, the Board notes that the claims file includes a March 1962 report from the Houston VA Medical Center (VAMC) that the Veteran was treated with spinal manipulation for herniation of the nucleus pulposus at L4 and L5, with right sciatic radiation, but no clinical records from this treatment have been associated with the claims folder. The record also includes numerous references in reports of private treatment that the Veteran underwent lumbar laminectomy surgery at the VAMC in 1963, which could have significant probative value. Correspondence dated in December 2012 shows the efforts were made to obtain these records from the Houston VAMC, but that these records were unavailable. In February 2013, the Veteran was informed the VA treatment records were not available and what efforts were made to try to obtain the records, including requesting any records in the Veteran's possession. The Veteran again indicated he had no records to submit. After a review of all the evidence, lay and medical, the Board finds that the Veteran currently has a low back disability, diagnosed as degenerative disc disease of the lumbar spine, status-post laminectomy, with ankylosing spondylitis. The January 2012 VA examination report reflects findings of ankylosing spondylitis based on X-ray findings, and also diagnosed degenerative disc disease. Based on this evidence, the element of current disability of the low back is established. The Board finds that the evidence is at least in equipoise on the questions of whether the Veteran sustained low back injury in service, whether symptoms of arthritis ankylosing spondylitis (a form of arthritis) have been continuous since service separation, and whether the diagnosed degenerative disc disease is related to the low back injury in service. In this case, the service treatment records, as well as VA medical records from the 1960s, which the Veteran asserts would show treatment for a low back injury and low back disorder, are unavailable. The Board acknowledges and has considered VA's heightened duty to assist where not all of the Veteran's service treatment records are available. With regard to in-service injury, the Board finds the Veteran's assertions regarding his injury in service to be not inconsistent, so to be credible. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran sustained a low back injury during service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the symptoms of ankylosing spondylitis (a form of arthritis) have been continuous since service separation. Regarding continuous symptoms of low back disability since service, there is some evidence that shows that the Veteran has been treated since at least 1962 for complaints related to his low back disorder, as well as negative evidence of no treatment records showing continuous symptoms since service separation. Because of the absence of service treatment records, the Board has relied instead on the affirmative evidence that is in the record, rather than drawing inferences from any absence in the treatment records. The affirmative evidence includes the Veteran's post-service history of treatment for a herniated disc at L4-5 since at least March 1962, clinical examination findings that indicate an injury and ankylosing spondylitis, and a diagnosis of degenerative disc disease. The Veteran has also consistently and credibly continued that his symptoms have continued to the present. See Layno v. Brown, 6 Vet. App. 465 (1994). Because the Veteran's statements and testimony regarding in-service and post-service back symptoms, treatment, and diagnosis are not shown to be inconsistent, the Board finds them to be credible. Similarly, the Veteran is considered competent to report the onset and continuation of his symptomatology. See Jandreau, supra. To the extent that the Veteran's 1994 motor vehicle accident may be considered an intercurrent injury, as noted by the VA examiner, the Board notes that the motor vehicle accident occurred long after the first post-service documentation of treatment for his back, and does not contradict the Veteran's assertions as to his in-service injury or continuous post-service symptoms prior to that time. See 38 C.F.R. § 3.303(b). Because continuity of symptomatology since service is demonstrated, the 38 C.F.R. § 3.303(b) criteria for presumptive service connection for arthritis (ankylosing spondylitis) have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. With regard to the diagnosed disability of degenerative disc disease, which is not a presumptive disease under 38 C.F.R. § 3.309(a), the medical evidence of record supports a finding that the Veteran's current low back disorder is related to his active military service. The Board acknowledges the November 2012 VA examiner's conclusory opinion based on the absence of a documented back injury in service; however, this does not mean that there is no nexus between the Veteran's current low back disorder and his alleged injury. The Board reiterates that many of the Veteran's service treatment records are unavailable, and that there is nothing of record which contradicts the Veteran's assertions as to the low back injury during his service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that most of the probative value of a medical opinion comes from its reasoning). For this reason, there is a question raised as to whether the opinion rendered in the November 2012 VA examination report based on a factually accurate history, which includes that the Veteran did sustain a back injury in service. The VA examiner gave the rather ambiguous opinion that it was "less likely as not" that any low back disorder the Veteran had is the result of an in-service injury because there was no documentation of an injury. A VA examination is inadequate when a VA examiner does not comment on a veteran's lay statements of an injury in service unless the Board expressly finds that no such injury occurred. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). A VA examiner may consider the lack of documentation in the service records, but this lack of documentation must be weighed against a veteran's lay statements. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). In light of the Court's direction, the Board finds that the November 2012 VA examination report to be of little probative value. Resolving reasonable doubt in the Veteran's favor, the Board finds that the degenerative disc disease is also directly related to the in-service low back injury. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a low back disability of degenerative disc disease of the lumbar spine, status-post laminectomy, with ankylosing spondylitis, is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs