Citation Nr: 1313540	
Decision Date: 04/23/13    Archive Date: 05/03/13

DOCKET NO.  06-21 632	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for a low back disability. 

2.  Entitlement to service connection for a neck disability.

3.  Entitlement to service connection for a left ankle disability.

4.  Entitlement to service connection for a left leg disability, to include radiculopathy. 

5.  Entitlement to service connection for a left foot disability.

6.  Entitlement to service connection for a bilateral shoulder disability.

7.  Entitlement to service connection for bilateral elbow disability.

8.  Entitlement to service connection for a bilateral hand disability



REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel


INTRODUCTION

The Veteran served on active duty from August 1964 to August 1967. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from respective March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Houston, Texas, and a September 2008 rating decision from the RO in Cleveland, Ohio.  The RO in Houston, Texas, currently retains jurisdiction of the Veteran's claim file.  

In May 2011, the Veteran testified before the undersigned at a hearing in San Antonio, Texas.  A transcript of the hearing is of record.  In May 2012, the Board remanded this claim for additional development.  

Following certification of the appeal the Board received private treatment records from the Veteran related to his claims of service connection for low back and neck disabilities without a waiver of agency of original jurisdiction review.  Nonetheless, the Board finds that the Veteran will not be prejudiced by adjudicating these claims without obtaining a waiver or remanding for agency of original jurisdiction review because, as explained in detail below, the Board is granting these claims.  

The claims of service connection for a left foot disability, a left leg disability, a bilateral shoulder disability, a bilateral elbow disability, and a bilateral hand disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Resolving reasonable doubt in favor of the Veteran, his low back disability diagnosed as degenerative disc disease and neck disability, diagnosed as cervical disc disease resulted from his military service.

2.  The most competent and credible evidence of record does not show a left ankle disorder at any time during the appeal period. 


CONCLUSIONS OF LAW

1.  A low back disability was incurred in the Veteran's military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2012).  

2.  A neck disability was incurred in the Veteran's military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2012).  

3.  A left ankle disability was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 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).  

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  See 38 U.S.C. § 5103(a).  

Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status.  

As to the claims of service connection for low back and neck disabilities, given the fully favorable decision contained herein the Board finds that discussion of the VCAA notice provided to the Veteran is unnecessary, since any deficiency in the timing or content of such notice would constitute harmless error.  To whatever extent the decision of the Court in Dingess, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as a disability rating and effective date, the Board finds that the RO will address any applicable downstream issues when effectuating the awards and therefore any failure to provide this notice at this junction cannot prejudice the claimant because he will be free to appeal any unfavorable finding by the RO regarding the disability rating and effective date.

As to the claim of service connection for a left ankle disability, the Board finds that a letters dated in August 2004, March 2006, and May 2012 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra.  While the Veteran may not have been provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claim in the December 2012 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  Furthermore, the Board finds that even if the RO failed to provide adequate 38 U.S.C.A. § 5103(a) notice that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the statement of the case, supplemental statement of the case, and Board remands.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the May 2011 Board hearing, the Veteran was assisted at the hearing by an accredited representative and the representative and the undersigned asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to his service or an already service connected disability.  They also asked questions to draw out the current state of the Veteran's disabilities.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that was not obtained while the appeal was in remand status.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection.  Therefore, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records as well as his records from the Social Security Administration (SSA) in substantial compliance with the Board's remand instructions.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).

The Board notes that post-remand no additional VA or private treatment records were obtained and associated with the claims file.  Nonetheless, the Board finds that a remand to request any outstanding records is not required because in May 2012 the AMC specifically asked the Veteran to provide it with authorizations to obtain any such records and he thereafter failed to provide any.  See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) (holding that "the duty to assist is not always a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the purtative evidence.").

The Veteran was also provided a post-remand VA examination in June 2012 that is adequate to adjudicate the claim and satisfies the Board's remand directives because after a review of the record on appeal and a comprehensive examination of the claimant the examiner provided an opinion as to whether the claimant had a current left ankle disability which opinion was based on evidence found in the claims file.  See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, supra; D'Aries, supra; Dyment, supra.

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Legal Criteria

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder.  It is noted, however, that 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 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.  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  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.

Service connection may be 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 line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Hickson v. West, 12 Vet. App. 247, 253 (1999; Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculosis disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). 

Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question."  See Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013)) or in the presumptive period 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).  In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought."  Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013).  Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time.  In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id.

If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."  Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) 

The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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").

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, supra, 1 Vet. App. at 57. 

The Veteran seeks service connection for a left ankle disability, a low back disability, and a neck disability.  He claims that these disabilities are related to a motor vehicle accident in service in which he was thrown from his Jeep.  He testified at his May 2011 hearing that during his accident he suffered multiple cuts, scrapes, and injuries when he hit the pavement during his accident, and that he was given muscle relaxants and pain pills for his neck and back.  The Veteran also testified that his problems with pain continued from the time of the accident to the present.   


A.  The Back and Neck Disorders

The record shows that the Veteran was treated during service after an automobile accident in September 1965 when he was thrown from a Jeep.  He was also treated in August 1965 for back strain while working under the dashboard of a Jeep.  The Veteran is competent and credible to report that he injured his back and neck in the accident that occurred in service and was given pain killers for relief.  Therefore, since the Court in Hickson, supra, held that evidence of an in-service incurrence of a disease or injury may be established by medical and/or lay evidence and the Veteran has both, the Board finds that the record contains competent and credible evidence of an in-service injury.  38 C.F.R. § 3.303(a).  

There is also a current finding of a back disorder and a neck disorder in the file.  The Veteran has been diagnosed with degenerative disc disease of the lumbar spine and of the cervical spine.  (See, e.g., VA examinations dated in 2012 and November 2006).  Therefore, the Board finds that the competent and credible evidence of record shows that the claimant has medical evidence of a current disorder.  38 C.F.R. § 3.303(a); Hickson, supra.   Thus this claim will turn on whether there is a nexus between the Veteran's inservice injury and his current diagnoses.  

The Board has reviewed the entire record.  Private records show that in an August 10, 1967, private employment survey (i.e., dated four days after he separated from active duty) the Veteran reported that he was in a wreck and that he has had back pain or injury.  He had neck pain in May 1977 after using a jack hammer.  Follow up that same month showed the impression that the Veteran could have had a cervical strain and possibly a cervical disc which had resolved.  In November 1988, he had cervical spine surgery.  In a March 1988 private treatment record the clamant reported that his spine problems began in 1965 during a car accident and it was noted that he had neck pain that radiated into his left arm.  He reported having pain since then off and on which never improved.  

The Board notes that there are conflicting findings regarding the etiology of the Veteran's disorder.  It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others.  Evans v. West, 12 Vet. App. 22, 30 (1998).  With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference.  The Board is not bound to accept any opinion (from a VA examiner, private physician, or other source) concerning the merits of a claim.  Hayes v. Brown, 5 Vet. App. 60 (1993).  Rather, it has a duty to assess the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  Factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner.  See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  

When the Veteran was examined by VA in November 2006, the examiner stated that the Veteran's service treatment records document one instance of low back problems during service.  The Veteran reported that he was thrown from his Jeep during an accident in which it hit a tank on base and that he had cuts and bruises all over his body, with his ankle receiving the most serious injury.  The examiner diagnosed spondylosis of the cervical spine and transitional vertebra of the lumbar spine with mild lumbar degenerative changes (age related).  The examiner noted that the Veteran's recollection of what happened is not reflected in his record and that his current claimed disabilities are not related to service or the Jeep incident.  The examiner stated that based on the service review, post service record and current listing of diagnoses, he found no nexus of the Veteran's neck or back conditions secondary to service or a Jeep incident.  It was stated that the current diagnosis and conditions are not due to service they are due to post service manual laborious job as an aluminum company employee, journeyman apprentice and associated activities over a 34 year period.  

The Veteran was examined by VA in June 2012.  The claims file was reviewed.  The examiner diagnosed degenerative disc disease of the lumbar spine and degenerative disc disease of the cervical spine.  The examiner stated that it was less likely as not that the lumbar spine disorder is related to service.  The examiner stated that after discharge, the first record of low back problems is in 1992 when a lumbar magnetic resonance imaging evaluation (MRI) was done.  It was reported that the 1988 complaints were related to the neck.  It was stated that there are no records of treatment for back pain between 1965 and 1992.  The examiner indicated that therefore the records are silent during service for period of 2 years and after service for approximately 25 years that would document continued complaints or treatment.  It was reported that although the Veteran gives a history of back problems after his inservice injury in 1965, and in his employment history states that he did have back pain during service, there is no evidence either during service or after service before 1992 for continued treatment of lower back problems.  The examiner reported that there is no nexus to connect the single 1965 reference to back pain to the later complaints.  As to the cervical spine, the examiner reported that the disorder was not caused by or the result of service.  The examiner stated that the service records show no history of a neck problem.  It was noted that the Veteran gave testimony that his August 1965 problem was related to his neck, but that service records state it was his back.  It was noted that there was no post service treatment until 1977 that was job related.  It was stated that the records are silent within service and for a period of approximately 10 years after discharge that would document complaints of treatment.  It was noted that the Veteran had a cervical diskectomy and fusion in 1988.  The examiner stated that the 1977 injury is more likely the etiology.  

In February 2013, the Board received a letter from a private examiner.  It was noted that the Veteran had been seen in January 2013.  It was stated that the Veteran had an accident in1965 while in Vietnam.  It was noted that he presented with his medical examinations from all of his previous visits regarding his injuries while in the military from different physicians.  The Veteran's chief complaint was noted to be pain in the cervical and lumbar regions.  By way of history in was stated that the evidence established that in September 1965 the Veteran was injured when he was ejected from a jeep after an impact with a tank causing a total loss of consciousness for an unknown amount of time.  It was noted that he was treated for lacerations, multiple hematomas and an ankle injury and that he has complained of neck and low back pain since then.  The Veteran was examined and x-rays were conducted.  The diagnoses were: cervical disc syndrome, cervical facet syndrome, cervical sprain/strain and lumbar disc syndrome, lumbar facet syndrome, and lumbar sprain/strain.   The examiner stated that the lumbar disc condition and the cervical disc condition are warranted as probable diagnoses based on the mechanism of injury, that is, being thrown from a jeep upon impact with a tank.  It was stated that this immediate onset of pain has been treated since inception and the Veteran received surgery to the cervical spine because of the continuation of pain to that area.  It was stated that his lower back also continues to cause a radicular pain pattern which is medically probable from the axial compression upon landing on the ground from such a force while being ejected.  The examiner stated that there is significant factual reason and evidence to prove that the Veteran's injuries and daily suffering are the direct effect of the mechanism of impact and injury he experienced in Vietnam in September 1965.  The examiner reported that in his opinion the Veteran's injuries are a result of the initial mechanism of injury as described above.  

The Board is aware that a medical opinion cannot be rejected solely because it is based upon history supplied by the claimant.  See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005).  Moreover, the Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a strict requirement for private medical opinions, and that a private medical opinion may not be discounted solely because the opining clinician did not describe review of the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).  The Court also stated that "most of the probative value of a medical opinion comes from its reasoning", and that the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."  Id.   

Therefore, after weighing all the evidence, the Board finds that the opinions offered are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position.  See Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995).  All opinions offered have probative value.  All examiners reviewed the Veteran's records and offered rationale for the findings presented.  The Board does not find any stated opinion to be any more persuasive than that provided by any other examiner.  

Given the Veteran's documented in-service accident involving being thrown from a moving Jeep during an accident with a tank, the August 1967 post-service report of back pain just after service discharge, the March 1988 private treatment record noting that his spine problems began in 1965, the competent statements from the Veteran that he suffered from symptoms such as cuts and pain throughout his body due to the Jeep accident while on active duty and since that time, as well as the equally probative medical opinions, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in relative equipoise with regard to whether the Veteran has a low back disorder and a neck disorder that either began in or is otherwise related to his military service.  For the Veteran to be successful in his claim, he needs to show only that it is at least as likely as not that his claimed disability began in or is otherwise related to service.  See 38 U.S.C.A. § 5107(b).  The Board finds that standard has been met in this case. 

In this context, the Board notes that the Veteran was involved in an automobile accident in service and was diagnosed with a low back disorder and a neck disorder after service.  The Veteran has reported having consistent symptomatology since that time.  See Charles v. Principi, 16 Vet. App. 374 -75 (2002).  His reports are both competent and highly probative.  Further his reports are supported by private records shortly after service.  In sum, the Board is satisfied that the criteria for service connection have been met and service connection is established for a low back disorder and a neck disorder.  In making this determination, the Board is not attempting to make an independent medical determination; rather, it is weighing the evidence of record and making a determination as to the probative value of such evidence.  See Evans v. West, 12 Vet. App. 22, 30 (1998).  Therefore, when reviewing the evidence in its totality, the Board finds that the evidence in this claim is at the least in equipoise.  Therefore, the Board finds that it must give the Veteran the benefit of the doubt, and grant his claims for service connection.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

B.  The Left Ankle Disorder

As noted above, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  The record reveals that while the Veteran has reported left ankle pain and stiffness, at no time during the course of this appeal has the Veteran been diagnosed with a left ankle disorder.  The record shows that during service, in September 1965, the Veteran was thrown from a Jeep and twisted his left ankle.  At separation in June 1967, no left ankle disorder was noted.  After service, the Veteran was examined by VA in April 2006.  Examination of the ankles showed no deformity, discoloration, or swelling and there was no tenderness to palpation.  Left ankle motion was as follows: dorsiflexion to 20 degrees, and plantar flexion to 35 degrees, both without pain.  The finding was, left ankle sprain/contusion in service, resolved, WITHOUT sequela (emphasis in original) and no clinical evidence of residual instability or arthropathy.  

On VA examination in November 2006, the examiner reviewed the claims file.  The Veteran's history was documented.  Examination of the ankle showed dorsiflexion from 0 to 10 degrees and plantar flexion to 30 degrees.  The diagnosis was no significant abnormal musculoskeletal pathology of the left ankle.  

On VA examination in June 2012, it was noted that the Veteran did not have a left ankle condition.  It was stated that after examination, including stress views of the ankle joint no diagnosis is warranted.  It was reported that normal clinical examination and x-ray examination of the Veteran were present.  

A threshold requirement for the grant of service connection for any disability is that the disability claimed must be shown present.  38 U.S.C.A. § 1110.  In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In addition to disease or injury in service, service connection requires competent medical evidence of a current related disability.  Degmetich v. Brown, 104 F.23 d 1328 (1997).

Essentially, the medical evidence shows that the Veteran does not have any residuals of the inservice treatment for a left ankle injury.  While the Veteran had an inservice left ankle injury, the evidence to support a medical link between such injury and any currently-shown disability is simply not there.  Moreover, the Court has said that pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).   In the absence of a present disability involving he left ankle, there can be no valid claim.  Brammer, super. 

In finding no current disability, the Board is cognizant of the Veteran's assertions to the contrary.  However, he is not shown to possess any particular medical expertise which would enable him to render an authoritative opinion as to his current symptoms could be residuals of the inservice injury.  Generally, lay persons ostensibly untrained in medicine can provide personal accounts of symptomatology, but cannot provide evidence constituting a medical conclusion, such as an opinion as to the medical characteristics of symptoms or the etiology of a disease.  For the most part, medical testimony must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education.  As a lay person, the Veteran is not competent to opine as to medical etiology or render medical diagnoses or opinions.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999).  

In summary, while the Veteran had a documented left ankle injury while on active duty that injury resolved and no subsequent left ankle disorder has been diagnosed at any time during the pendency of the appeal.  Therefore, the claim of service connection for a left ankle disability is denied.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).  The Board also finds that benefit 

of the doubt rule is not applicable since there can be no valid claim absent a current disability.  Brammer, supra.


ORDER

Service connection for a low back disorder is granted. 

Service connection for a neck disorder is granted.  

Service connection for a left ankle disorder is denied. 


REMAND

As noted above, the Board remanded this claim to have the Veteran examined and to obtain nexus opinions.  The Board mandated that as to each diagnosed disability, the examiner state if it is at least as likely as not (50 percent probability or more) that it was caused by his active duty, including his in-service motor vehicle accident, or has continued since service, and as to each diagnosed disability that was caused by the Veteran's active duty or has continued since service, the examiner was to stated whether it is at least as likely as not (50 percent probability or more) that it caused or aggravated a left foot disability, a low back disability, a neck disability, a left leg disability, a left ankle disability, a bilateral shoulder disability, a bilateral elbow disability, and/or a bilateral hand disability.  

The Veteran was examined by VA in June 2012.  At that time, the examiner opined that as to the left leg disability, a bilateral shoulder disability, a bilateral elbow disability, and a bilateral hand disability the disorders were not related to military service and not due to or aggravated by a back disorder since the back disorder was not service-connected.  

As noted above, the Board has granted service connection for a low back disorder and a neck disorder.  Therefore, the Board finds that an addendum opinion is necessary.  38 U.S.C.A. § 5103A(d).  In addition the opinions offered by the examiner as to direct service connection are not sufficient since adequate rationale was not provided in that the opinions appeared to rely solely on negative evidence.  See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim).  Therefore, the Board finds that an addendum opinion is also needed as to the direct service connection question.  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).

Given the fact that the Veteran appears to receive ongoing treatment for his many disabilities, while the appeal is in remand status his contemporary treatment records from all identified locations that have not as yet been associated with the claims file should be obtained. 38 U.S.C.A. § 5103A(b). 

Accordingly, these issues are REMANDED to the RO/AMC for the following actions:

1.  The RO/AMC must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims.  Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources.  All attempts to secure this evidence must be documented in the claims file by the RO.  

2.  After undertaking the above development to the extent possible, the RO/AMC should refer the file to the June 2012 VA examiner for an addendum opinion.  If that examiner is not available, have the file reviewed by a VA physician for an opinion.  The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review.  After a review of the record on appeal, the examiner should provide answers to the following questions:

a.  As to each diagnosed left foot disorder, left leg disorder, bilateral shoulder disorder, bilateral elbow disorder, and bilateral hand disorder is it at least as likely as not (50 percent probability or more) that it was caused by military service  or has continued since that time?

b.  As to any arthritis of the left foot disorder, left leg disorder, shoulders disorder, elbows, and/or hands, is it at least as likely as not (50 percent probability or more) that it manifested itself to a compensable degree in the first post-service year?

c.  As to each diagnosed left foot disorder, left leg disorder, bilateral shoulder disorder, bilateral elbow disorder, and bilateral hand disorder is it at least as likely as not (50 percent probability or more) that it was caused or aggravated by an already service connected disability including the newly service connected low back and neck disabilities?

In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his disabilities in-service and since that time even when not documented in medical records.

In providing answers to the above questions, the examiner is advised that it may not rely on negative evidence as the basis for any opinion.

If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies).  If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided.

In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation.  More likely and as likely support the contended causal relationship; less likely weighs against the claim. 

In providing answers to the above questions, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.  

If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of the disorder (i.e., a baseline) before the onset of the aggravation. 

A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered.  

3.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO/AMC must readjudicate the claims.  If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto.  The appeal must then be returned to the Board for appellate review.  

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).

These claims must be afforded expeditious treatment.  The law requires that all 

claims that are remanded by the Board or by the Court 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).




______________________________________________
NEIL T. WERNER
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs