Citation Nr: 1314727 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 07-18 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a lumbar spine disability with ruptured disc removal, to include as secondary to service-connected bilateral ankle disabilities. 2. Entitlement to a total disability compensation rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from June 1971 to January 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In December 2008, the Veteran testified at a hearing before the undersigned Veterans Law Judge, via videoconference. A transcript of the hearing is associated with the claims file. In January 2009 the Board remanded this claim for additional development. In August 2010, the Board reopened the claim for service connection for a lumbar disorder and remanded the issue as well as the issue regarding a TDIU for further development. In November 2012, the claim was again remanded. As to the issue decided below, the Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this regard, the Veteran was examined and an opinion was provided. The examination was adequate for making a determination in this claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The case has been returned to the Board and is ready for further review. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence in this case is in approximate balance as to whether the Veteran's current back disability is the result of an injury suffered in active service. CONCLUSION OF LAW A lumbar spine disability with ruptured disc removal was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5103, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). As the claim for service connection for a back disability is being granted, the decision is favorable to the Veteran and therefore there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Service Connection 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. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). 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 tuberculous 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) 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 v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice- connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that his current back disability is causally related to his in-service injury that occurred during his active military service or in the alternative is due to his service connected bilateral ankle disabilities. He states that during service, he was involved in a jeep accident and injured his back. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to direct service connection for a back disability that was incurred in service. As this is the greater benefit, a discussion regarding secondary service connection is not necessary, and the Board will confine its discussion to the finding of direct service connection. Service treatment records show that Veteran's pre-induction examination in January 1971 revealed a normal spine. Back trouble was denied in an accompanying report of medical history. During service, there is no indication of complaints or treatment regarding the lumbar spine. The Veteran's December 1972 separation examination was normal. Following service, private records reveal a report of a back injury, occurring in December 1978 and treatment in January 1979. The Veteran reported injuring his back on the job. The Veteran underwent laminectomy and removal of a ruptured disc at L5-S1 in April 1982. Treatment reports written by Dr. H.J .F. reveal that the Veteran suffered an occupational accident in February 1982. Specifically, he slipped and fell on a patch of ice. In September 2003, two individuals sent statements to the RO attesting to the fact that the Veteran was denied employment in 1973 with Southwest Electric due to a bad back. Both individuals alleged that the Veteran did not pass a physical examination due to his back problems. There is of record an August 2008 letter from the Southern Electric Company. It noted that no records were available dating back to 1973 (including physical examination report), nor did the company have any information concerning the possible employment of the Veteran with the company. At the hearing before the Board in December 2008, the Veteran testified to having flipped over in a jeep he was driving while stationed at Camp Casey, Korea. He added that after being ejected from the jeep he was checked out by medics in the field. He denied receiving any medicine or being placed on a profile at that time. The Veteran also mentioned that his accident occurred in about September 1972 and that he did not receive any other treatment for his back while in the military. The Veteran added that he first had back problems shortly after his service separation, at which time he saw a chiropractor. He also stated that he failed a physical examination with Southwest Electric one week after his service discharge. A lay statement received in August 2009 from C.R. notes that the Veteran had written her a letter while in Korea telling her he had rolled a jeep. She added that the Veteran had failed a work-related physical examination after his service separation, due to his having a bad back. Another lay statement, received in September 2009, is from a service buddy of the Veteran, who witnessed the in-service jeep accident. He noted that the jeep rolled on its side down a four foot bank. He could not remember if any injuries were incurred as a result of the accident because the Veteran seemed to care more about his commanding officer than himself. An additional lay statement, received in January 2010, from M.S., notes that she claimed the Veteran had foot/ankle and back problems ever since his return from the military. The Veteran was examined by VA in August 2010. The claims file was reviewed. The Veteran reported having back pain which began in 1972 after he had a motor vehicle accident in a jeep. He reported having back pain after leaving service and that he saw a chiropractor shortly after service for back pain. He was examined, and lumbosacral degenerative disk disease with lumbar radicuopathy, postoperative, was diagnosed. The examiner opined that the lower back condition stemmed from an on-the-job injury in 1982. It was noted that there is no evidence in the service medical records of a back condition and no evidence in the medical records from discharge in 1973 o 1982 that the Veteran was having any type of spine symptoms. It was stated that therefore, it is less likely than not that the lower back condition is secondary to an in service jeep accident and more likely that it is secondary to an on-the-job injury in 1982. The Veteran was examined by VA in December 2012. The claims file was reviewed. The examiner stated that the claimed condition was at least as likely as not incurred or caused by the claimed in-service injury, event or illness. The rationale was that the Veteran reports pain caused him to seek help from health care providers including a chiropractor noted above. It was noted that he was also denied a job due to back x-rays just after leaving service. It was noted that the rationale was based on the Veteran's verbal history and that the Veteran appeared to be an adequate historian. The examiner reported these events occurred prior to the injury and surgery in 1982. In reviewing the evidence of record, the Board concludes that in this case, as it now stands, the evidence of record is at least in relative equipoise as to whether the Veteran's current back disorder is etiologically related to an in-service injury. The Board finds the evidence, which includes the Veteran's credible hearing testimony, credible lay statements and VA examination reports provides a reasonable basis to award service connection. 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). 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). 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." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Therefore, after weighing all the evidence, the Board finds that the VA 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). Both opinions offered have probative value. Both reviewed the Veteran's records. The Board does not find any stated opinion to be substantially more persuasive than that provided by any other examiner. It is noted that the August 2010 VA examiner who offered a negative opinion based his finding in part on the absence of a specific incident involving the back in service. However, 38 C.F.R. § 3.303(d) provides that service connection may 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. See 38 C.F.R.§ 3.303(d). Essentially the lack of specific documentation in service in and of itself is not fatal to a service connection claim. While there is no showing of the injury in service, the December 2012 examiner based his finding on a history provided by the Veteran. The examiner found the Veteran to be an adequate historian in this regard and offered a positive opinion. After weighing the evidence of record 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 lumbar spine 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 has reported having consistent symptomatology since service. See Charles v. Principi, 16 Vet. App. 374 -75 (2002). His reports are both competent and highly probative. Further his reports are supported by several lay statements submitted in support of his claim. The lay parties are competent to attest to the Veteran having back pain since service and the Board has no reason to doubt their credibility. In sum, the Board is satisfied that the criteria for service connection have been met and service connection is established for a lumbar spine 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). 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 claim for service connection. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a lumbar spine disability with ruptured disc removal is granted. REMAND Reason for Remand: Readjudication of the TDIU The Veteran is seeking a TDIU. He is service-connected for a bilateral ankle disorder. The Board has now granted service connection for a lumbar spine disorder. The TDIU issue is "inextricably intertwined" with the resolution of the service connection claim for a low back disorder granted above and, therefore, the RO must reconsider the claim prior to adjudication of the Veteran's TDIU claim by the Board. See Harris v. Derwinski, 1 Vet. App. 180 (1991). This newly service-connected disability must be assigned an initial disability rating by the agency of original jurisdiction (AOJ) and then considered in the determination of entitlement to TDIU. Accordingly, the case is REMANDED for the following actions: 1. After assigning an initial evaluation for the Veteran's now service-connected lumbar spine disorder, and after conducting any other development that may be warranted based on any additional information or evidence received, to include further examination if necessary, obtain a VA medical opinion as to the overall or combined effect of the Veteran's service-connected disabilities on his ability to work. One opinion must be provided as to the combined effect of all of the Veteran's service-connected disabilities on his occupational functioning, and specifically whether they are sufficiently severe as to prevent him from engaging in substantially gainful employment without regard to age or non-service connected disabilities. The examiner must provide a rationale for his/her opinion. 2. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, the AOJ should readjudicate the claim of entitlement to a TDIU on the merits. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs