Citation Nr: 1313007 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 08-09 975A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for arthritis of the right knee. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for arthritis of the left hand. 4. Entitlement to service connection for arthritis of the left knee. 5. Entitlement to service connection for scar of the left hand. 6. Entitlement to service connection for scar of the left leg. 7. Entitlement to service connection for cyst of the left wrist. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION 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). The Veteran served on active duty from February 1943 to December 1945. These matters come before the Board of Veterans' Appeals (Board) from a December 2006 rating decision from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) above, which denied the benefits sought on appeal. The Veteran then perfected a timely appeal of these issues. In November 2009, the Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at a Travel Board hearing. A transcript of the hearing is associated with the claims file. In April 2010, the Board remanded this appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. The Veteran's Virtual VA paperless claims file has also been reviewed in preparing this decision. All issues other than the back disability claim are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC in Washington, DC. FINDING OF FACT The Veteran's current disability of the low back results from injury during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disorder have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks to establish his entitlement to service connection for a back disability. Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active wartime service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.309(a). In general, service connection requires a claimant to satisfy a three element test: (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 - the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(b). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. 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. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus"). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. The facts of this case may be briefly summarized. The Veteran served on active duty from February 1943 to December 1945. His service treatment records (STRs) do not reflect treatment for a back injury, and his November 1945 separation examination reflected a normal clinical evaluation of the spine. However, one month after discharge in January 1946, the Veteran reported incurring a back strain in December 1944. He also reported a witness to the injury, C.A.O. In January 1947, the Veteran submitted a statement from C.A.O., who served with the Veteran while stationed in Hawaii, corroborating the Veteran's report of a back injury when pulling a motor on a hoist. Notably, the Veteran had a military occupational specialty (MOS) as an automotive mechanic, and he reports that some STRs are missing. Given the proximity to service discharge when the report of back injury was received (one month), the corroborative lay witness statement and consistency of circumstances (a vehicle repair person incurred injury while hoisting a motor), the Board has no doubt whatsoever that the Veteran incurred a back injury as claimed. A January 1947 statement from Dr. R.G.G., D.O., who identified himself as an osteopathic physician and surgeon, reiterated the Veteran's history of having a truck motor striking his left leg and left side against a fender. The Veteran described symptoms of low backache with lack of endurance as well as pain down his left leg. Physical examination was significant for pain and soreness along the sacro-iliac joint, tenderness along the sciatic nerve into the thigh and calf, and an inability to fully flex. Diagnoses of sacro-iliac subluxation and sciatic neuritis were provided. However, a March 1947 VA orthopedic examination found no evidence of orthopedic disease. Thereafter, the Veteran submitted a June 1947 physician statement certifying the Veteran's treatment for left sacro-iliac strain with left neuritis "which apparently was received while in service." In July 1947, the Veteran underwent another VA orthopedic examination which found no orthopedic or neurologic disease. This examiner commented that the Veteran's complaints were inconsistent with physical findings and gave a general impression of malingering. A March 1949 medical certification provided diagnoses of possible, chronic sacro-ilac strain and possible lower lumbar ruptured disc. Yet, a May 1949 VA examination again found no orthopedic pathology. Many years later, the Veteran presents with current diagnoses of lumbar spine disc disease, osteopenia with compression fractures, and mild degenerative changes of the sacro-iliac joint. A VA examiner in December 2010 opined that the Veteran's current back disorder is less likely related to his active military service. The examiner reasoned that there is no evidence of any trauma or injury to the Veteran's low back, or evidence of treatment for the low back, during the Veteran's active military service. The examiner also pointed out that the first post-service VA examination in March 1947 was negative for any back disorder. The examiner found that the Veteran's current back disorder was more likely related to the normal process of aging and to his prior occupation. This examination report is inadequate for rating purposes for several reasons. The most important is the factual assertion that there is no evidence of any trauma or injury to the Veteran's low back, or evidence of treatment for the low back, during the Veteran's active military service. The Board specifically finds that the Veteran incurred a low back injury as claimed, and he further reports that some STRs are missing. The examiner also did not adequately discuss the significance of the Veteran's report of chronic low back symptoms in service, or the two separate diagnoses of chronic sacro-iliac strain with neuritis in 1947. The Veteran was afforded another VA examination in May 2012 with a primary care advanced practicing nurse. Following a physical examination of the Veteran, X-rays of the spine, and a review of the claims file, the VA examiner determined that the Veteran's current back disorder is less likely as not (less than 50/50 probability) permanently aggravated by any intraservice related injury or condition. The examiner reasoned that the Veteran's military separation physical made no mention of back problems. The examiner noted that a June 1947 private treatment record diagnosed the Veteran with back problems, but then pointed out that the July 1947 VA examination does not support the private findings and does not support any orthopedic or neurologic pathology of the spine. The examiner pointed out that X-rays were obtained at the July 1947 VA examination, and the X-rays did not provide any indication of abnormalities, to include disc narrowing, fractures, or arthritis. The examiner stated that subsequent evaluations in the Veteran's claims file were also negative for findings to support a service-connected back disorder. The examiner found that the Veteran's more recent radiographic history included significant osteopenia, compression fracture of the T-12 level of the spine, vertebroplasty at the L3-4 levels of the spine, and chronic disc disease at the L5-S1 levels with mild degenerative changes of the sacroiliac joint (SIJ). Thus, based on the STRs and the evidence in the claims file, the examiner determined that these current radiographic findings would relate to age-progressive disorders and would not have been a result of military service events. However, the examiner also added that, in consideration of the benefit of the doubt, the Veteran's post-service SIJ strain in 1947 may have contributed to his radiographic evidence of SIJ arthritis, but the strain did not impact his thoracic or lumbar disorders. The Board also finds that this examination report is inadequate for rating purposes. The examiner states that the diagnosis of lumbosacral strain in June 1947 was not supported by the VA examination findings in July 1947. That much may be true as the June 1947 statement did not report any specific clinical findings. However, the VA examiner did not discuss the January 1947 diagnosis of sacro-iliac subluxation and sciatic neuritis which was supported by clinical findings of pain and soreness along the sacro-iliac joint, tenderness along the sciatic nerve into the thigh and calf, and an inability to fully flex. The VA examiner also did not discuss the significance of the March 1949 assessment of possible chronic sacro-iliac strain and possible lower lumbar ruptured disc which reported clinical findings of sacroiliac tenderness, and a moderately severe muscle strain. Additionally, the VA examiner did not explain why the absence of x-ray abnormalities would rule out a chronic muscle strain, or why a disc herniation would necessarily have been detected by an x-ray examination. More importantly, the VA examiner made a curious finding that, by considering the benefit of the doubt, the Veteran could be deemed to have had a sacroiliac strain in 1947. This finding would by necessity overrule the findings on the VA examination reports in 1947. Then, the question remains whether the chronic sacroiliac strain conceded to exist in 1947 is the same condition reported by the Veteran within one month from service discharge. In this context, the record also contains a May 2012 VA clinic record assessment from a VA physician who is a doctor of osteopathy. This examiner diagnosed with the Veteran with lumbar spine degenerative joint disease commenting "[t]here is severe old back injury, service-connected." Overall, the Board finds that the record on appeal supports the award of service connection for a back disorder. In this respect, the Veteran has been found to have injured his low back in service when being hit by a hoisted motor. He submitted a service connection claim within one month of discharge, and later submitted medical certifications that he had a chronic sacro-iliac strain with left-sided neuritis. There was a dispute at that time whether the Veteran had such a disorder, but the recent VA examiner appeared to concede that there may have been chronic sacro-iliac strain existing in 1947 which could have contributed to the degenerative changes in the sacroiliac joint. The Veteran's consistent report links the onset of the symptoms which support the diagnosis of sacro-iliac strain in 1947 to the inservice injury in 1944, which again was reported within one month of discharge. Moreover, a VA physician in May 2012 recently provided an assessment that the Veteran's current degenerative changes of the back could be attributable to a severe back injury in service. Given the above, and with consideration of the benefit of the doubt doctrine, the Board finds that the Veteran's current disability of the low back results from injury during active service. The claim, therefore, is granted. As the benefit on appeal has been granted in full, there is no reason to discuss whether any duty to notify or duty to assist error has been prejudicial to the Veteran. Additionally, any potential errors on the part of this AVLJ in the conduct of the November 2009 hearing have been rendered harmless. See generally Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010). ORDER The claim of entitlement to service connection for a back disorder is granted. REMAND The Board regrets any further delay in adjudicating the remaining claims, but finds that additional assistance on the part of VA to the Veteran is required. With respect to many of his claims, the Veteran asserts that he incurred shrapnel injuries during a temporary duty assignment on Saipan Island in the summer of 1944. He claimed field treatment for these wounds as well as being hospitalized on a hospital ship following the injury. He also asserts treatment at Camp Pendleton prior to his discharge from service. He further claims that pertinent service records are missing. The Veteran's service treatment records (STRs) do not reflect any shrapnel wound injuries. The Honorable Discharge Certificate issued by the U.S. Marines in 1945 indicates that the Veteran served in the Hawaiian Islands from September 1943 to November 1945. He was not identified as serving in Saipan, and it was indicated that the Veteran did not receive any wounds in service, or engage in any battles, engagements, skirmishes or expeditions. In April 2010, the Board remanded this case, in part, to corroborate the Veteran's contentions including a request for the Veteran to identify any providers who had removed shrapnel from his body as claimed, an additional search for STRs, and obtaining service personnel records (SPRs). The Veteran's response to identifying his treatment providers for shrapnel removal was vague, but he did claim treatment at the Camp Pendleton Base Hospital prior to his discharge. The available records reflect that the Veteran was transferred to Camp Pendleton in November 1945 which is just prior to his discharge from service. In light of the allegation of lost STRs, the Board finds that a direct search for records from the Camp Pendleton Base Hospital from November to December 1945 should be conducted. See Russo v. Brown, 9 Vet. App. 46, 51 (1996); Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (VA has a heightened duty to assist a claimant when service records are missing). With respect to his service in Saipan, the Veteran alleged being part of the 6th Service Command Fleet Marine Force Pacific who were sent to Saipan. The Board takes judicial notice that the Battle of Saipan took place from June to July 1944, which correlates to the Veteran's claim of being in combat conditions in Saipan in the summer of 1944. See http://en.wikipedia.org/wiki/Battle_of_Saipan. The available SPRs do not document the Veteran's temporary duty assignment to Saipan. Nonetheless, the Board finds that the RO should contact the appropriate entity to determine whether any members of the Signal Company, 6th Base Depot were part of the military operations of the Battle of Saipan. The Board next notes that the Veteran has briefly mentioned receiving treatment at the San Francisco VAMC, and possibly the Muskogee VAMC, after his discharge from service. On remand, the RO should attempt to obtain any records from these facilities, if they exist. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Assist the Veteran in associating with the claims folder the following records in the possession of a federal agency: a) any hardcopy or electronic records from the Base Hospital in Camp Pendleton from November to December 1945; b) any hardcopy or electronic records from the San Francisco VAMC in approximately 1946; and c) any hardcopy or electronic records from the Muskogee VAMC in approximately 1946, and any additional records since February 24, 2011. 2. Contact the appropriate entity to determine whether any members of the Signal Company, 6th Base Depot were part of the military operations of the Battle of Saipan from June to July 1944. 3. If and only if the Veteran's service in Saipan is verified, schedule appropriate VA examinations to determine whether it is at least as likely as not the Veteran manifests any injuries of the left leg, the right leg, the left hand and the left wrist as a result of shrapnel wound injuries during service. With respect to the claimed right knee disability, the examiner should explain the significance of findings of small joint effusion and patellar osteophyte (October 2006 QTC x-ray reports) and possible osteonecrosis of the femoral condyle (May 2004 private bone scan report) in rendering a diagnosis. 4. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and the appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs