Citation Nr: 1315098 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 10-33 157 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to an initial compensable evaluation for degenerative joint disease of the right ankle. ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from July 13, to November 22, 1978, from November 1990 to May 1991, and from July 1996 to March 1997. By rating actions in June 2000 and May 2001, the RO denied service connection for a back disability. The Veteran was notified of this decision and did not appeal. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2009 decision by the RO which granted service connection for a right ankle disability and declined to reopen the claim of service connection for a back disability. The Board remanded the appeal for additional development in December 2012. As noted in the December 2012 Board remand, because additional service department records were received subsequent to the July 2009 rating decision, the Veteran's claim of service connection for a back disability will be considered on the merits in accordance with 38 C.F.R. § 3.156(c) (2012). The issue of an increased rating for the Veteran's right ankle disability is addressed in the REMAND portion of this decision, and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran is not shown to have a current back disability that had its onset in service or is otherwise related to service or any incident therein. CONCLUSION OF LAW The Veteran does not have a back disability due to disease or injury which was incurred in or aggravated by service, nor may any current arthritis of the back be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101,1110, 1112, 1113, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in October 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and all VA and identified private medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's Virtual VA electronic medical records. The Veteran was examined by VA at during the pendency of this appeal and was afforded an opportunity for a personal hearing, but declined. Additionally, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). Additionally, the claim was remanded in December 2012 for additional development of the record. The remand directives included obtaining any outstanding VA medical records, and a VA examination to determine the nature and etiology of any identified back disability. Additional VA treatment records were associated with Virtual VA, and the Veteran was afforded a VA examination in January 2013, in compliance with the remand directives. In light of the foregoing, the AMC has substantially complied with the December 2012 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Laws & Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a veteran must show: "(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). Where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year of date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Analysis In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). In this case, the Veteran contends, in essence, that he has had chronic back pain since a training incident in January 1991, and believes that his current back problems are related to that incident. Concerning the Veteran's contentions, while he is competent to provide evidence regarding his observations and experiences, any such assertions must be weighed against other inconsistent or contradictory evidence of record. See Buchanan, 451 F.3d 1331 (Fed. Cir. 2006). Historically, the STRs do not show any treatment, abnormalities or diagnosis for any back problems during any of his periods of active service. Although the Veteran asserted that he was treated for injuries to his back and left leg after he fell carrying heavy equipment in January 1991, the STRs are completely silent for any such treatment. The STRs showed that the Veteran sought to obtain pain pills for leg and ankle pain in January 1991, but do not show any complaints or abnormalities referable to any back problems. In fact, on examination in January 1991, the Veteran had full range of motion of the back. The assessment at that time was (leg) muscle cramps, and the Veteran was given medication and returned to duty. Further, on a Report of Medical History (RMH) for demobilization in May 1991, and on a RMH for deployment in April 1996, the Veteran specifically denied any history of recurrent back pain, and no pertinent abnormalities were noted on examination. While the Veteran reported a history of recurrent back pain at the time of his separation examination in March 1997, no pertinent abnormalities were noted on examination, and the Veteran's spine and musculoskeletal system was normal. Private medical records showed that the Veteran was treated for low back pain radiating down the left leg on several occasions beginning July 1999, and that he underwent left L4-5 limited laminectomy, partial foraminotomy and excision of protruded disc in August 1999. The private medical reports reflect that on every occasion, the Veteran reported that his left leg pain began in April 1999. He said that he initially thought it was just a muscle pull, but that the pain worsened and began to radiate down from the hip into the left leg. An August 1999 report noted that an MRI revealed a disc herniation at L4-5 on the left, and that the Veteran was referred for a neurosurgical evaluation. It is significant to note that while the Veteran now contends that he has had chronic low back pain ever since an alleged injury in service in 1991, he never mentioned any prior history of back problems to any of the treating physicians in 1999. As to the Veteran's allegations, the Board notes that he has given several somewhat inconsistent and confusing statements regarding the onset and etiology of his back problems. For example, on his original application for VA compensation benefits received in November 1999, the Veteran reported that he injured his back in December 1990 or January 1991, and that he was treated at Ft Bragg from 1991 to 1997. On his application for VA benefits in August 2008, the Veteran reported that his back disability began in 1999, and that it occurred while on active duty. When examined by VA in January 2013, the Veteran reported that he injured his back and right ankle when he fell carrying heavy equipment in 1990, and that he was treated with pain medication and profiled (put on light duty) for 10 days. He said that he continued to have back pain during his entire first enlistment, but not have any back problems or treatment during his second period of service, and that he started having back problems after service in 1999. In a letter received in July 2000, the Veteran reported that he injured his back while working as an MP in service in December 1990 or January 1991, and that "during the altercation" he also sustained a blow to his left eye. As discussed above, however, other than a reported history of back pain at the time of service separation in 1997, the STRs were completely silent for any complaints, treatment abnormalities or diagnosis for any back problems. The evidentiary record also includes two letters, dated in January and July 2009, from what appears to be a soldier who served with the Veteran at Ft Bragg. The serviceman reported that he recalled that the Veteran was treated for back and left thigh pain after carrying heavy equipment for several hours during a training exercise in January 1991, and that the Veteran was placed on quarters and then light duty until he was able to return to regular duty. Concerning the lay statements in this case, the Board finds that the Veteran's inconsistent accounts concerning the etiology of his back problems and his allegations of chronic back pain since 1991, particularly when compared with the historical record, raises serious doubts as to his ability to provide accurate and reliable information and reflects negatively on his credibility. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board has also considered the lay statements from the fellow serviceman concerning his observations of the Veteran's physical problems. However, as the issue in this case is not one that can be diagnosed via lay observations, alone, and his recollections of the Veteran treatment is inconsistent with the historical record, the Board finds that his statements are of little probative value and declines to assign them any evidentiary weight. See Jandreau, 492 F. 3d 1372 (Fed. Cir. 2007). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. Caluza, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board emphasizes that personal interest to receive benefits may affect the credibility of the evidence. Cartright, 2 Vet. App. at 25 (1991). In this case, the Board does not find the Veteran to be a reliable historian, and that his contentions of chronic low back problems since 1991 are not credible. Furthermore, the Board remanded the appeal in December 2012, for a VA examination to determine the etiology of the Veteran's current back problems. When examined by VA in January 2013, the examiner indicated that the claims file was reviewed, and included a detailed description of the Veteran's complaints, medical history and the findings on examination. The examiner noted that other than a reported history of back pain at the time of discharge from service in 1997, there was no objective evidence of an injury or any treatment for back problems in service or until 1999, at which time, the Veteran was employed in heavy manual labor. Based on his review of the record, the examiner opined that it was less likely than not that the Veteran's current back problems, including degenerative disc disease of the lumbar spine, had its onset in service or was otherwise related to service, including the reported incident in January 1991. In this case, the Board finds the January 2013 VA opinion persuasive as it was based on a thorough review of the record and included a detailed discussion of all relevant facts. The examiner offered rational and plausible explanation for concluding that the Veteran's current low back disability was not present in service or related to any incident therein. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). Furthermore, the Veteran has not present any competent medical evidence to rebut that opinion. Thus, the most probative evidence of record consists of the January 2013 VA opinion. Because the Veteran's contentions are inconsistent with the record, the Board does not find them credible, and accords them no probative value. The Veteran is likewise not shown to have any medical expertise, and therefore any medical conclusions he offers are of no probative value. The decision then must be based on the documented medical record, which as described above, fails to support the conclusion that any current back disability is related to service. In reaching its conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting service connection for a back disability. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. ORDER Service connection for a back disability is denied. REMAND Although further delay is regrettable, the Board finds that additional development concerning the claim for a compensable evaluation for the right ankle disability must be accomplished prior to further consideration of the Veteran's appeal. As noted in the December 2012 Board remand, a letter in Virtual VA, dated in August 2012, indicated that the Veteran was being scheduled for an examination to evaluate all of his service-connected disabilities, which at that time, consisted of post traumatic stress disorder (PTSD) and the right ankle disability. The Board sought to obtain the examination report and any other VA treatment records concerning the right ankle disability. While the AMC associated all VA outpatient notes from 2009 to February 2013 with Virtual VA records system, there were no records pertaining to the right ankle disability. Based on the evidence obtained, it is not clear whether the Veteran was examined by VA for his right ankle disability. Furthermore, the most recent VA examination of record pertaining to the right ankle was conduct four years ago. The Board is required to discuss its reasons and bases for assigning a particular disability rating with reference to the criteria contained in the relevant diagnostic code(s). It is not permitted to discuss factors outside the scope of the rating criteria, nor is it permitted to speculate on the presence or absence of the criteria on the basis of incomplete information. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In light of the discussion above, the Board finds that further development is required. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the case is REMANDED for the following action: 1. The AMC should take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for any right ankle problems since February 2013. After securing the necessary release(s), the AMC should attempt to obtain copies of all medical records, not already of records, from the identified treatment sources and associate them with the claims folder. The AMC should also make a formal determination as to whether the Veteran was examined by VA subsequent to the August 2012 notification letter. If an examination was undertaken, the AMC should associate a copy of that report with the claims file. If any records identified by the Veteran cannot be obtained, this should be noted in the claims folder, and the Veteran so advised. 2. If the Veteran has not been accorded the VA examination indicated above, he should be afforded a VA examination to determine the extent and severity of his right ankle disability. The claims folder must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the examination report. All appropriate testing should be undertaken in connection with this examination. The examiner should provide a response to the following: a) Note any limitation of motion in the right ankle. The actual and normal ranges of motion should be listed. b) Indicate whether the right ankle exhibits weakened movement, excess fatigability, or incoordination. If feasible, these determinations should be expressed in terms of additional range of motion loss or favorable or unfavorable ankylosis due to any excess fatigability, weakened movement or incoordination. If that is not feasible, that should be explained. c) Express an opinion on whether pain in the right ankle could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. These determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. If the examiner is unable to make such a determination, it should be so indicated on the record. 3. Following completion of the foregoing, the AMC must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC should determine if all medical findings necessary to rate the Veteran's right ankle disability have been provided by the examiner and whether he or she have responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 4. After the requested development has been completed, the AMC should readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran 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). 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). ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs