Citation Nr: 1315499 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-22 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for cervical spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran had honorable active service from April 30, 1974 to August 5, 1983, and had other than honorable service from August 6, 1983 to December 22, 1987. These matters come to the Board of Veterans' Appeals (Board) from a January 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in December 2009; the transcript is of record. Under VA regulations, if VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims folder when VA first decided the claim, VA must reconsider the claim. 38 C.F.R. § 3.156(c). This regulation comprehends official service department records which presumably have been misplaced and have now been located and forwarded to VA. In essence, the finality of any previous decision is vitiated by the association of additional, pertinent service department records, and the claim must be reconsidered. In this case, the Veteran's prior claim of service connection for back disability was finally denied in a March 2001 RO decision. However, evidence submitted by the Veteran in September 2004 with his claim to reopen, consists of a March 1986 service treatment record pertaining to treatment sought following a motor vehicle accident. This service record was not previously considered, and is pertinent because it shows a diagnosis pertaining to the back rendered during active service. Given the submission of the new service record, the claim must be reconsidered without regard to the previous final denial. 38 C.F.R. § 3.156(c). These matters, as well as entitlement to service connection for depression, were remanded in February 2010. A March 2012 rating decision granted service connection for depression. The Board additionally notes that a total (100 percent) disability rating was granted for the Veteran's psychiatric disorder, effective September 28, 2004. Thus, the Board no longer has jurisdiction over such claim. The issue of service connection for a lumbar spine disability 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 A cervical spine disability did not have its clinical onset in service and is not otherwise related to a period of honorable active duty; degenerative joint disease of the cervical spine was not exhibited within the first post service year. CONCLUSION OF LAW A cervical spine disability, to include degenerative disc disease, was not incurred in or aggravated during a period of honorable active service; degenerative joint disease of the cervical spine was not manifested within the first post service year. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in November 2004 and June 2011 that addressed all notice elements consistent with the VCAA for the claims of service connection. The letters provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the June 2011 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. Fully compliant notice, however, was issued in later communication, and the claim was thereafter, most recently, readjudicated in March 2012. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at his December 2009 hearing. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. The Veteran was afforded the opportunity to testify before the undersigned Veterans Law Judge in December 2009. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the 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, the Veterans Law Judge, in a pre-hearing conference discussed the basis of the prior determinations and noted the elements that were lacking to substantiate the service connection claims on appeal. In addition, the Veteran and his representative demonstrated actual knowledge of this information. The Veteran specifically addressed medical evidence in support of his claims, indicating an understanding of requirements to establish service connection. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.) Additionally, the Veterans Law Judge noted the issues on appeal and provided a basic explanation of them. Accordingly, the Veteran is not shown to be prejudiced on this basis. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Regulations and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). If degenerative arthritis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. Turning to the evidence of record, the Veteran had no specific complaints of cervical treatment or injury in his service treatment records during an honorable period of service. In March 1986, the Veteran was in a motor vehicle accident, and complained of low back pain in the lumbar area. X-rays of the thoracic and lumbar spine were normal. The assessment was thoracolumbar spasm/strain status post motor vehicle accident. Correspondence dated in July 1986 from D.L.D., M.D., reflects that five days following the motor vehicle accident, the Veteran was seen with pain in his neck, left shoulder, ribs, and upper back. Following physical examination and x-ray examination, the examiner diagnosed cervical and lumbodorsal spine sprain and mild osteoarthritis of the cervical spine. Dr. D.L.D. opined that the Veteran sustained a cervical spine sprain, a dorsolumbar spine sprain and was found to have a mild osteoarthritis of his cervical spine following the March 1986 accident. An August 2004 VA outpatient treatment records reflect diagnoses of cervical radiculopathy multi-level spondylosis/disc and lumbar spondylosis/disc with radicular pain. In April 2010, the Veteran underwent a VA examination. Upon physical and x-ray examinations, the examiner diagnosed degenerative joint disease, cervical spine, mild. The examiner did not offer an etiological opinion. In July 2010, the VA examiner prepared an addendum report. The examiner stated that the Veteran's cervical and lumbar spine disabilities less likely as not had a clinical onset during the Veteran's period of service from April 30, 1974 to August 5, 1983, or are otherwise related to such period of service. The examiner stated that there was nothing in the medical records or the physical examination to overturn or refute the findings of the rating decisions of 2001 and 2005. The examiner's rationale was "medical examination, medical knowledge, and especially medical records." The Board found that the VA examiner's opinion was inadequate in light of the rationale provided. The Veteran was afforded an additional VA examination in March 2012. The examiner reviewed the claims file. The examiner indicated that the Veteran's claimed current diagnoses are degenerative joint disease of T12/L1, L2/3, L3/4 and L4/5 as well as congenital stenosis of the upper lumbar spine. The examiner indicated that the Veteran's cervical spinal condition is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale provided indicates that the separation examination in 1987, years after the 1974 to 1983 period of honorable active duty, indicates no complaints of the spine. The examiner noted that X-rays taken in 1997 which are fourteen years post-trauma (ostensibly indicating the 1983 in-service motor vehicle accident sustained during a period of duty characterized as being under dishonorable conditions) are compatible with aging rather than trauma; additionally noting that if the Veteran had trauma during the 1974-83 period of duty, the residuals would be much worse by 1997. In conclusion, the Board finds that service connection for the Veteran's cervical and lumbar spine disorders must be denied as the preponderance of the evidence is against a finding that the disabilities are related to a period of honorable active service or any incident of honorable active service. As detailed above, the Veteran's period of service from April 1974 to August 5, 1983 was honorable, and the Veteran's period of service from August 6, 1983 to December 22, 1987 was under conditions other than honorable. Per a September 1988 Administrative Decision, it was determined that the character of discharge from his second period of service was a bar to VA compensation benefits. If the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim was based was terminated by a discharge or release under conditions other than dishonorable. See 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.12. Thus, the time period for which disability benefits may be received is limited to the Veteran's first period of active duty, from April 1974 to August 5, 1983. The medical evidence of record does not relate the Veteran's cervical spine disability to his period of honorable active service. Indeed, a VA medical opinion, offered following examination of the Veteran and after a review of the relevant records, indicates that the disability is not related to honorable active service or any incident of honorable active service. The rationale provided was clearly articulated and was based in part on the Veteran's own statements, history and review of the claims file. For these reasons, this opinion is deemed highly probative and has not been refuted elsewhere in the record. The Board notes the recently decided Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the decision, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). In this case, the claimed disability is a chronic disability. However, arthritis is determined by x-ray evidence according to VA regulation. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. In this case, radiographic evidence of cervical spine arthritis was found in March 1986. As the Veteran's period of honorable service ended in August 1983, the Veteran's arthritis was not diagnosed within one year of an honorable period of active duty. The Veteran has testified that he has had neck pain since injuring it when he hurt his left shoulder during the initial period of service. There is nothing in the service treatment records reflecting chronic cervical spine disability during the period of service that ended in 1983. To the extent the Veteran claims that he has had continuous pain since service, he is competent and credible. However, the VA examiner considered these complaints and found it less likely that current cervical spine disability was related to the initial period of service. The neck pain that has been present since service has not been associated with degenerative joint disease or degenerative disc disease of the cervical spine and there is no showing by competent evidence that it represented the presence of chronic cervical spine disability. The Veteran himself believes that his cervical spine disability is related to active service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, due to the passage of time and the intervening motor vehicle accident during a period of active duty determined to be under conditions other than honorable, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address etiology in the present case. In sum, taking into account all of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's cervical spine disability is related to a period of honorable active service or to any incident of honorable active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for cervical spine disability is denied. REMAND A Remand confers on the Veteran the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Court has indicated that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Given those pronouncements, and as will be discussed below, the fact that the some of the development sought by the Board in this case has not been fully completed, another remand is now unfortunately required. 38 C.F.R. § 19.9. As detailed hereinabove, the Veteran's period of service from April 1974 to August 5, 1983, was honorable and the Veteran's period of service from August 6, 1983 to December 22, 1987 was under conditions other than honorable. Per a September 1988 Administrative Decision, it was determined that his second period of service was a bar to VA compensation benefits. A June 1978 service treatment record reflects complaints of pain on the left side of the back. He also complained of dizziness and headache. There was no specific diagnosis rendered with regard to the back. A January 1979 service treatment record reflects complaints of a sore back and paravertebral spasms. He appeared uncomfortable and walked stiffly. Spasms were palpated on physical examination. In March 1986, the Veteran was in a motor vehicle accident, and complained of low back pain in the lumbar area. X -rays of the thoracic and lumbar spine were normal. The assessment was thoracolumbar spasm/strain status post motor vehicle accident. Correspondence dated in July 1986 from D.L.D., M.D., reflects that five days following the motor vehicle accident, the Veteran was seen with pain in his neck, left shoulder, ribs, and upper back. Following physical examination and x-ray examination, the examiner diagnosed lumbodorsal spine sprain. Dr. D.L.D. opined that the Veteran sustained a dorsolumbar spine sprain. An August 2004 VA outpatient treatment record on file reflects diagnoses of cervical radiculopathy multi-level spondylosis/disc and lumbar spondylosis/disc with radicular pain. In light of the complaints pertaining to the back during the Veteran's period of honorable service, and the disabilities pertaining to the back and neck during the Veteran's period of other than honorable service, these issues were remanded in February 2010 to afford the Veteran a VA examination to assess the nature and etiology of his back and neck disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In April 2010, the Veteran underwent a VA examination. Upon physical and x-ray examinations, the examiner diagnosed mild arthritic changes, lower thoracic spine. The examiner did not offer an etiological opinion. In July 2010, the VA examiner prepared an addendum report. The examiner stated that the Veterans lumbar spine disability less likely as not had a clinical onset during the Veteran's period of service from April 30, 1974 to August 5, 1983 or are otherwise related to such period of service without a valid rationale. An additional VA examination was performed in March 2012 pursuant to the previous remand. The examiner indicated that the Veteran has degenerative joint disease of T12/L1, L2/L3, L3/L4, L4/L5 and congenital stenosis of the upper lumbar spine which is less likely than not related to active service. Part of the examiner's rationale was that a notation of L1 wedging in-service was not found and no wedging was noted on subsequent x-rays or MRIs. However, a May 1976 in-service x-ray indicates that a lateral film of the abdomen revealed some anterior wedging of L1, secondary to old Scheuermann's disease. An August 2002 VA MRI report indicates anterior wedging of the L1 vertebra. Unfortunately, the examiner's opinion was not based on the relevant information provided in the claims file. There is no indication as to the significance of the findings of anterior wedging of the L1 vertebra, found in-service and again in August 2002. Thus, the RO/AMC must obtain an addendum for the examiner to provide an additional opinion. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who evaluated the Veteran in March 2012 (if he is not available then another comparably qualified examiner may respond instead). The examiner should deem whether it is necessary to have an in-person examination of the Veteran. The examiner should ascertain the nature and etiology of any low back/lumbar spine/thoracic spine disability. The claims file should be made available to the examiner for review in connection with the examination. All appropriate testing should be performed. For each low back/lumbar spine/thoracic spine disability identified, the examiner should indicate whether it at least as likely as not (a 50% or higher degree of probability) had its clinical onset during the Veteran's period of service from April 30, 1974 to August 5, 1983, or is otherwise related to such period of service? The examiner should specifically consider the finding of anterior wedging of L1 in-service and indicate if that is a notation of an in-service disability. All opinions and conclusions expressed must be supported by a complete rationale in a report. 2. After completion of the above, the RO should review the expanded record and determine if any of the benefits sought can be granted. If any benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs