Citation Nr: 1315716 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 09-04 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for beta thalassemia trait with anemia. 3. Entitlement to service connection for a disorder manifested by abnormal calcium levels. 4. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served as a member of the United States Army, with active service from August 1987 to June 1993 and a period of National Guard service between 2002 and 2004. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2007 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (the RO). The Veteran testified at a Travel Board hearing which was chaired by the undersigned at the Nashville RO in July 2010. A transcript of the hearing has been associated with the Veteran's VA claims folder. In November 2010, the Board reopened the claims of entitlement to service connection for low back, blood, and right knee disorders. In November 2010 and August 2012, the Board remanded the claims to the RO via the Appeals Management Center (AMC) for additional development. The claims have since been returned to the Board for appellate review. The Board also remanded the claim of entitlement to service connection for bilateral hearing loss disorder. In a January 2013 rating decision, the AMC granted service connection for bilateral hearing loss disorder as well as granting service connection for tinnitus, both effective May 15, 2007, and assigned zero and 10 percent disability ratings for bilateral hearing loss disorder and tinnitus, respectively. Neither the Veteran nor his representative has expressed disagreement with the effective date of the grants of service connection or the assigned ratings. Therefore, no matter regarding the bilateral hearing loss disability or tinnitus is in appellate status. The Veteran's alleged blood disorder for which he is seeking service connection has three components: beta thalassemia trait, anemia, and a disorder manifested by abnormal calcium levels. In light of the analysis below, the Board is adjudicating the issue of entitlement to service connection for a disorder manifested by abnormal calcium levels as a separate issue. As such, the issues are as stated on the title page. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the low back disorder is related to active duty. 2. Clear and unmistakable evidence establishes that the Veteran had beta thalassemia trait without anemia prior to his period of active duty. 3. The record does not show by clear and unmistakable evidence that the Veteran's preexisting beta thalassemia trait with in-service anemia was not aggravated during his period of active duty. 4. The weight of the evidence is against a finding that the Veteran has or has had a disorder manifested by abnormal calcium levels during the appellate term. 5. The weight of the evidence is against a finding that the Veteran has or has had a right knee disorder during the appellate term. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, a low back disorder was incurred in service. 38 U.S.C.A. §§ 101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. Beta thalassemia trait with anemia was aggravated by service. 38 U.S.C.A. §§ 101, 1110, 1111, 1131, 1137; 38 C.F.R. § 3.304. 3. A disorder manifested by abnormal calcium levels was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303. 4. A right knee disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in June 2007, December 2010, March 2011, and September 2012 of the information and evidence needed to substantiate and complete a claim of entitlement to service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA provided notice of how disability evaluations and effective dates are assigned in June 2007. These claims were most recently readjudicated in a supplemental statement of the case issued in January 2013. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims being adjudicated to the extent possible, and, as warranted by law, afforded a VA examination. The RO and AMC obtained the Veteran's service treatment and personnel records and his periods of active duty for training and inactive duty training, which was pursuant to the November 2010 Boar remand. The AMC afforded him VA examinations for his four disorders on appeal, pursuant to the two remands. The RO also obtained private treatment records, and the Veteran himself submitted some private medical records and statements. The Veteran submitted his February 2002 entrance examination report into the Army National Guard and an August 2002 treatment record from his National Guard service. The AMC attempted to obtain service treatment records from the United States Coast Guard though the appellant had no service in that branch and from the Army National Guard of New Jersey even though he served in the Army National Guard of Washington state. There is no further duty to assist as to obtaining service treatment records regarding the claimant's Army National Guard service because the claims that are being denied are, as explained below, being denied on the basis of no current disability since the Veteran filed his claim in May 2007. Any additional service treatment records from National Guard service that ended in 2004 are not potentially relevant to these claims because the question is whether the appellant has had a current disability since filing his claim in 2007. Cf. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The reports of the October 2012 VA examinations reflect that the examiner reviewed the Veteran's claims file and his past medical history, recorded his current complaints, conducted appropriate physical examinations and interview, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Pursuant to the remands, the October 2012 VA examiner addressed whether the appellant has a chronic disability manifested by abnormal kidney levels and a right knee disorder and whether the current low back disorder and anemia are related to active service. The Board therefore concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Board also observes that the Veteran was also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/DRO 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 VLJ fully explained the issues on appeal during the hearing. Significantly, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) . Pursuant to the Board's prior remands, VA readjudicated the claims. In light of that and the discussions of the post-remand examinations above, VA complied with the directives of the November 2010 and August 2012 remands. Stegall v. West, 11 Vet. App. 268 (1998). In short, there is no error or issue that precludes the Board from addressing the merits of this appeal. Claims for Service Connection Service connection may be established for a disability resulting from (1) a disease or injury incurred in or aggravated by active duty or active duty for training, or (2) an injury incurred in inactive duty training. See 38 U.S.C.A. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.1, 3.6 (2012); see also Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Service connection may also be warranted 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 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based on "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304(b)(1). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 U.S.C.A. § 1154; 38 C.F.R. § 3.306(a). Service connection can be granted for a familial disease that was initially manifested itself in service or was aggravated by service. In other words, service connection cannot be denied merely on the basis that a veteran has the genetic trait for the disease. See VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 82-90 (July 18, 1990). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 1. Entitlement to service connection for a low back disorder Shedden element (1), current disability, has been met. The October 2012 VA examiner diagnosed lumbar degenerative disc disease. The appellant argues that his low back disorder is due to his numerous parachute jumps as an Army Ranger and carrying heavy rucksacks. The Veteran is competent to report that he injured his back during parachute jumps and while carrying heavy rucksacks, and the Board finds him credible, especially in light of the fact that he reported a three-year history of recurrent back pain at his active duty separation examination. The service treatment records show that the Veteran suffered acute lumbosacral strain during Army National Guard service in August 2002. Thus, Shedden element (2), injury or disease, for both active duty and National Guard service has been met. Turning to Shedden element (3), medical nexus, there is conflicting medical evidence as provided by the October 2012 VA examiner and two private doctors. In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Claims (the Court) has also held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). A medical opinion may not, however, be discounted solely because a medical professional did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Rather, the question is whether the medical professional was informed of all relevant facts in rendering a medical opinion. Id. In a June 2008 statement, Dr. T. Campbell, Doctor of Chiropractic, opined that the low back disorder was a direct result of the Veteran's high physical demands in service. Dr. Campbell stated that based on his military service, he was familiar with the stresses and rigors of the appellant's unit. Dr. Campbell noted that the traumas routinely suffered in airborne operations and the carrying of heavy rucksacks up to 200 pounds were consistent with the lumbar disc herniations and spinal joint degeneration. Dr. Campbell did not address the lengthy amount of time between the in-service trauma and the lumbar spine findings. In a July 2010 statement, Dr. V. Shada, Doctor of Osteopathy, opined that the low back pain was secondary to multiple parachute jumps and heavy rucksacks during military service. In an August 2008 statement to a workers' compensation specialist; however, Dr. Shada noted a history of back pain secondary to multiple parachute jumps but added the following opinion: "[d]ue to multiple parachute jumps with nature of job incident leaves numerous reasons for back pain with injury to develop." Therefore, the medical evidence shows that Dr. Shada has in essence attributed the low back disorder in part to a post-service work injury. The October 2012 VA examiner opined that the low back disorder was not related to active service. The examiner noted that degenerative disc disease was not diagnosed until 13 years after active duty and four years after the National Guard strain, that lumbar spine X-rays in 1993 were normal, and that the only documented soft-tissue injury was in 2002. The examiner indicated that it was medically reasonable to state that the development of degenerative disc disease was not cause by soft-tissue injuries to his back during active duty or the 2002 strain but instead most likely was due to a genetic predisposition to disc degeneration. While the examiner acknowledged in-service soft-tissue injuries during active duty in general, she did not address the in-service traumas of parachuting jumping and wearing rump sacks in particular. The Board also notes that the VA examiner is a nurse practitioner, whereas the private medical providers are doctors albeit not medical doctors. Given the inadequacies of both the favorable and unfavorable opinions, the Board finds that the evidence is in equipoise as to whether the Veteran's low back disorder is related to active service. Accordingly, Shedden element (3) is established. In summary, the Board is of the opinion that the Veteran has met all requirements needed to establish service connection for a low back disorder. The benefit sought on appeal is accordingly allowed. 2. Entitlement to service connection for beta thalassemia trait with anemia As this claim pertains to a genetic trait, the Board will first address whether the Veteran is entitled to the presumption of soundness. At the April 1987 entrance examination, neither the beta thalassemia trait nor anemia was noted. Thus, the beta thalassemia trait and anemia were not noted on entrance into service and the appellant is entitled to the presumption of soundness as to the beta thalassemia trait and anemia. The next matter is whether there is clear and unmistakable evidence that the Veteran's beta thalassemia trait preexisted his active service. The October 2012 VA examiner noted that the beta thalassemia trait is a genetic disorder from birth. There is no medical evidence indicating that the trait is not a genetic disorder from birth. Clear and unmistakable evidence establishes that the appellant had the beta thalassemia trait prior to his period of active duty. The Board finds that the medical evidence is undebatable on this question. There is, however, no clear and unmistakable evidence that the Veteran had anemia as a manifestation of the beta thalassemia trait prior to active service. There is no medical evidence showing a diagnosis of anemia prior to active service. Microcytic anemia secondary to the beta thalassemia trait was first diagnosed during an August 1989 periodic physical examination. The crux of this case thus revolves around whether there is clear and unmistakable evidence that the Veteran's beta thalassemia trait was not aggravated during service when the anemia first manifested itself during service. The manifestation of anemia related to the beta thalassemia trait during active duty is evidence of an increase in severity during active duty. The Board acknowledges that there is a negative nexus opinion in the record. The October 2012 VA examiner opined that the beta thalassemia trait was clearly and mistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner's basis was that although the trait was first diagnosed during active duty, it is a genetic disorder present at birth and was not caused by or aggravated beyond its natural progression by military service. The examiner twice indicated that the most people with the beta thalassemia trait remain asymptomatic. However, in the Veteran's case, it appears that the Veteran's trait became symptomatic during service with the development of anemia. The examiner did not address why the natural progression of this trait is the development of anemia when most people who carry this trait remain asymptomatic and do not develop anemia. Therefore, The Board does not consider this opinion to be clear and unmistakable evidence to rebut the statutory presumption of aggravation. Given the evidence of the development of anemia in service, as well as no evidence clearly and unmistakably establishing the contrary, the Board reaches the conclusion that the record, viewed as a whole, does not show by clear and unmistakable evidence that the Veteran's preexisting beta thalassemia trait was not aggravated during service. Thus, service connection for beta thalassemia trait with anemia is warranted. The benefit sought on appeal is accordingly granted. 3. Entitlement to service connection for a disorder manifested by abnormal calcium levels The Board has reviewed all of the evidence of record, to include the private and service treatment records and VA examination reports. These records do not show that the Veteran currently has, or has had a disorder manifested by abnormal calcium levels since he filed his claim in May 2007. The October 2012 VA examiner noted that the Veteran has never had a diagnosis of any abnormality of his calcium levels during or after service, to include at the current time. The examiner indicated that his calcium levels have always been and continue to be within the normal range. The Board additionally notes that the Veteran is not claiming that he has a disorder manifested by abnormal calcium levels and that the focus of his claim of entitlement to service connection for a blood disorder has been his claim of entitlement to service connection for anemia. The Board concludes that the preponderance of the evidence is against granting service connection for the disorder manifested by abnormal calcium levels. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for a right knee disorder The Veteran claims that he has a right knee disorder. The Board has reviewed all of the evidence of record, to include the private and service treatment records and VA examination reports. These records do not show that the Veteran currently has, or has had a right knee disorder since he filed his claim in May 2007. In December 1989, the Veteran had a right lateral collateral ligament strain and a right iliotibial band friction syndrome. While the Board in November 2010 reopened the claim of entitlement to service connection for a right knee disorder apparently based on records from Dr. Campbell and an August 2008 statement of Dr. Shade, a de novo review of these records and other private treatment records and statements do not reveal a right knee disorder. The October 2012 VA examiner did a thorough right knee examination, and X-rays of the right knee were taken. The examiner did not diagnose a right knee disorder, and X-rays of the right knee were normal. As for continuity of knee symptomatology, aches and pains in particular (see hearing transcript, page 20), the Veteran is competent to report this symptomatology and the Board finds him credible with regard to experiencing knee symptomatology. That said, supporting medical evidence is required because a claim based on continuity of symptomatology can only be granted if there must be competent medical evidence of a current disorder for which there is continuity of symptomatology. As noted above, the preponderance of the competent medical evidence preponderates against finding that the Veteran has or has had a right knee disorder during the appellate term. Moreover, aches and pain alone, however, are symptoms, not a diagnosed disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). To the extent that the Veteran is claiming that his knee symptomatology is evidence of a current disability, the Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the existence of a right knee disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board concludes that the preponderance of the evidence is against granting service connection for a right knee disorder. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disorder is granted. Entitlement to service connection for beta thalassemia trait with anemia is granted. Entitlement to service connection for a disorder manifested by abnormal calcium levels is denied. Entitlement to service connection for a right knee disorder is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs