Citation Nr: 1316137 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-31 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected left knee arthritis. 2. Entitlement to service connection for neck disability, to include as secondary to service-connected left knee arthritis. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to service connection for a respiratory disability. 5. Entitlement to service connection for a right shoulder disability. 6. Entitlement to service connection for a left shoulder disability. 7. Entitlement to an increased initial rating for left knee arthritis, rated 0 percent prior to November 24, 2010, and rated 10 percent as of February 1, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active naval service from June 1972 to June 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2008 and January 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. In connection with the appeal of the issues of entitlement to service connection for neck and low back disabilities and of entitlement to an increased rating for left knee arthritis, the Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2011. A transcript of the hearing is associated with the claims file. This claim was previously before the Board in June 2011, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. In an April 2012 supplemental statement of the case, the Veteran was granted a temporary total disability rating based on convalescence required following surgery on his service-connected left knee disability. The temporary total disability rating was granted effective November 24, 2010, until January 31, 2011, at which point the Veteran was assigned a 10 percent disability rating for his left knee disability. Therefore, the Board has limited its consideration to those periods when a 100 percent rating was not in effect. The issues of entitlement to service connection for diabetes mellitus, a respiratory disability, and right and left shoulder disabilities; and the issue of entitlement to an increased rating for left knee arthritis are remanded to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. A low back disability is not etiologically related to the Veteran's active service, was not caused or permanently worsened by a service-connected disability, and thoracolumbar spine arthritis was not present within one year of the Veteran's separation from active service. 2. A neck disability is not etiologically related to the Veteran's active service, was not caused or permanently worsened by a service-connected disability, and cervical spine arthritis was not present within one year of the Veteran's separation from active service. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by active service and is not proximately due to or the result of a service-connected disability, and thoracolumbar spine arthritis may not be presumed to have been incurred in active service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. A neck disability was not incurred in or aggravated by active service and is not proximately due to or the result of a service-connected disability, and cervical spine arthritis may not be presumed to have been incurred in active service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record shows that the Veteran was mailed letters in March 2008 and July 2011 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The March 2008 and July 2011 letters also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claims. Although the Veteran was not provided adequate notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. Bernard v. Brown, 4 Vet. App. 384 (1993). Following the provision of the required notice and the completion of all indicated development, the claims were readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claims would have been different had complete notice been provided at an earlier time. Overton v. Nicholson, 20 Vet. App. 427 (2006) (timing error may be cured by a new notification followed by a readjudication of the claim). The Board also finds the Veteran has been given adequate assistance in response to his claims. The Veteran's service medical records are of record. VA Medical Center treatment notes have been obtained. The Veteran has been afforded appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board has not been made aware of any outstanding evidence. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection 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) (2012). To prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, the arthritis shall be presumed to have been incurred or aggravated in service, even though there is no evidence of arthritis during the period of service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. For certain chronic diseases, set forth in 38 C.F.R. § 3.309, to include arthritis, continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has asserted that he has low back and neck disabilities as a result of an injury he sustained in active service. Specifically, the Veteran has reported that while working aboard a boat in 1974, he got his foot caught in some rope and fell overboard. He reported that because his foot was tangled in a rope, he dangled above the water until they were able to bring him back aboard the boat. He reported that in the initial fall overboard and while dangling, he struck the side of the boat several times, injuring his back and neck. The service medical records show that the Veteran was seen in November 1971 for complaints of lower back pain on the left side. The Veteran reported that there was no history of trauma to his back and the examiner diagnosed muscle strain and prescribed a muscle relaxer. In December 1972, the Veteran was seen for complaints of left-sided back pain. At that time, the Veteran was found to have good range of motion with slight pain on forward bending. The examiner diagnosed slight back strain and prescribed a muscle relaxer. In November 1973, the Veteran was seen for a back ache. There were no spasms or other physical findings and the examiner did not make a diagnosis. In June 1974, the Veteran was seen for complaints of recurring back pain. Physical examination was within normal limits and the Veteran was diagnosed with low back pain. The examiner prescribed a hard sleeping surface, heat, and a muscle relaxer. In May 1975, the Veteran was seen for complaints of left-sided back pain since a fall approximately two weeks prior. The Veteran had full range of motion and there was no evidence of tenderness or spasms. The examiner diagnosed muscle sprain and prescribed a muscle relaxer. There is no evidence of any treatment for or diagnosis of a neck disability while the Veteran was in active service. In a June 1975 separation examination report, there is no indication that the Veteran was found to have any back or neck disability. Apparently, the Veteran's May 1975 back pain had fully resolved prior to separation from active service. A review of the post-service medical evidence of record shows that the Veteran has been seen for complaints of neck and back pain at various times since his separation from active service. However, there is no documented treatment for a neck or low back disabiliy prior to 2007. Since that time, the Veteran has received periodic treatment at a VA Medical Center for back and neck disabilities. However, there is no indication from the treatment notes of record that the disabilities have been found to be related to the Veteran's service or to any service-connected disability. At an October 2008 VA examination, the Veteran reported the 1974 fall in which he reportedly sustained a back and neck injury and reported that he had experienced neck and back pain since separtion from active service. X-rays of the cervical spine revealed loss of the normal lordotic curve, somewhat sclerotic endplates of the C5-6 and C6-7 intervertebral bodies, anterior and posterior osteophytes, impingment of the C3-4 and C6-7 foramena on the right, and impingement of the C5-6 foramena on the left. Lumbar spine X-rays revealed no bony pathology. Based on the history provided by the Veteran, a review of the record, and an examination of the Veteran; the VA examiner diagnosed cervical spondylosis and lumbar myofasciitis. In November 2008, the claims file was returned to the October 2008 VA examiner for an addendum opinion. At that time, the examiner opined that it was less likely as not that the Veteran's low back disability was caused by or the result of the reported fall during active service. The examiner noted that in order for the Veteran's low back disability to be related to his active service, it would have to be a current component of a posttraumatic process initiated 25 years ago. The examiner further explained that it was unlikely that a fall from a standing height would transfer enough energy to the lumbar soft tissues to initiate and sustain a chronic inflammatory and degenerative process. The examiner also noted that the Veteran's post-injury physical examination was benign, countering a high energy injury. The examiner noted that one would also expect a similar posttraumatic process to occur in the surrounding bone during such a high energy transfer, but that current lumbar radiographs did not show any signs of degeneraative changes. In December 2008, the Veteran was afforded a magnetic resonance imaging scan (MRI) of both his lumbar and cervical spine. MRI of the lumbar spine revealed five intact, well aligned lumbar vertebra and no spinal canal or neural foraminal stenosis. MRI of the cervical spine revealed mild spinal canal stenosis from C3-4 to C6-7, without cord compression and, severe neural foraminal stenosis at C3-4 and C6-7 on the right, and severe neural foraminal stenosis at C5-6 bilaterally. At a July 2011 VA examination, the Veteran reported the 1974 injury to his neck and back and reported that his neck and back pain had increased in severity over time. Based on the history provided by the Veteran, a review of the record, and an examination of the Veteran; the VA examiner diagnosed lumbar spondylolisthesis, cervical spondylosis, and cervical radiculopathy. The examiner opined that it was less likely as not that the Veteran's lumbar spine disability was caused by or a result of his active service and that it was less likely as not that the Veteran's lumbar spine disability was caused by, a result of, or aggravated by his service-connected left knee arthritis. The examiner noted that the Veteran was evaluated for low back strain in the 1970s, but that his separation examination was normal. Additionally, the examiner noted that there was no evidence of a back condition until the 2000s, which was a 30 year lapse in treatment. Further, the examiner noted that the Veteran had a normal gait, which meant that his body mechanics were normal and so, his left knee disability did not affect his back. The examiner also opined that it was less likely as not that the Veteran's cervical spine disability was caused by or a result of his service and that it was less likely as not that the Veteran's cervical spine disability was caused by, a result of, or aggravated by his service-connected left knee arthritis. The examiner noted that there was absolutely no evidence of a neck injury or neck disability while the Veteran was in active service. The examiner further noted that there was no evidence in the medical literature that a knee condition could cause or aggravate a cervical spine condition. The Board notes that the Veteran is generally competent to report when he first experienced symptoms of or neck and back pain. However, once evidence is determined to be competent, the Board must determine whether that evidence is credible. Competency is a legal concept determining whether testimony may be heard and considered and credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he is an interested party and stands to gain monetary benefits. However, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24 (1991). The Board notes that while the Veteran reported that he injured his neck and back during active service and that he has experienced neck and back pain ever since service, his statements are inconsistent with the other evidence of record. There is no indication from the service medical records that the Veteran injured his neck during active service. Additionally, while the Veteran was seen several times for low back pain during active service, he was never seen for follow-up treatment and the symptoms appear to have been acute and transitory and fully resolved prior to separation. Additionally, at his June 1975 separation examination, there is no indication from the examination report that the Veteran had any neck or back disability from the time of his separation. Furthermore, there is no documented treatment for a neck or back disability until more than 30 years following the Veteran's separation from active service. Additionally, the October 2008 VA examiner noted that the Veteran's current low back disability is inconsistent with the fall and injuries in service as described by the Veteran. Additionally, the Veteran's statements that he has experienced neck and back pain since his separation from active service were only made after he filed a claim of entitlement to service connection for those disabilities. Therefore, as the Veteran's statements are inconsistent with the other evidence of record and subject to potential self-interest, the Board finds that the statements that he sustained a lasting injury to his neck and back during active service and that he has experienced neck and back pain since that time are not credible. Additionally, there is no evidence indicating that the Veteran was diagnosed with either cervical spine or thoracolumbar spine arthritis within a year of his separation from active service. Therefore, presumptive service connection is not applicable in this case. In sum, the Veteran's reports of sustaining lasting neck and back injuries in active service and that he has continued to experience such since his separation from active service are not credible. The Veteran has not presented credible evidence of continuity of symptomatology of arthritis in either his neck or back since his separation from active service so as to support a grant of service connection. The October 2008 and July 2011 VA examiners competently opined that the Veteran's low back and neck disabilities were not etiologically related to his active service and were not caused or chronically worsened by his service-connected left knee disability. The Board finds that those examinations and opinions are the most persuasive evidence on these claims, and they are against the claim. The Veteran has not presented any contrary medical evidence. Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection for a low back and neck disabilities is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a neck disability is denied. REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. The Veteran submitted a January 2009 statement that the Board finds to be a timely notice of disagreement with the denial of entitlement to a service connection for right and left shoulder disabilities in a December 2008 rating decision. A review of the record shows that the Veteran was not issued a statement of the case in response to that notice of disagreement. Those issues must be remanded for the originating agency to issue a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). With regard to the issues of entitlement to service connection for diabetes mellitus and a respiratory disability, the Board notes that the Veteran was sent a letter in November 2012 notifying him that the appeal of those issues was being certified to the Board for further appellate action. In a November 2012 statement, the Veteran requested a videoconference hearing before the Board with respect to the issues identified in the November 2012 appellate certification letter. There is no indication from the record that the Veteran has been afforded the videoconference hearing before the Board in connection with his appeal of the issues of entitlement to service connection for diabetes mellitus and a respiratory disability. Because videoconference hearings before the Board are scheduled by the RO, a remand is required for the hearing to be scheduled. 38 C.F.R. § 20.704 (2012). The Board notes that in an April 2013 statement, the Veteran's representative argued that the Veteran's November 2012 hearing request was for all the issues on appeal. However, the Veteran has already been afforded a Board hearing for the issues of entitlement to service connection for low back and neck disabilities and of entitlement to an increased disability rating for left knee arthritis. Additionally, the November 2012 hearing request was sent in response to a letter which only addressed the issues of entitlement to service connection for diabetes mellitus and a respiratory disability. Therefore, the Board finds that the hearing request is applicable only to the issues of entitlement to service connection for diabetes mellitus and a respiratory disability. Additionally, a review of the electronic record shows that the originating agency has been adjudicating other new issues while the issues currently before the Board have been in appellate status. It appears as though there is a temporary claims file that has been maintained at the RO, but has not been associated with the claims file at the Board. The Board finds that prior to scheduling the Veteran's requested hearing, the temporary claims file should be associated with the Veteran's permanent claims file. With regard to the Veteran's claim of entitlement to an increased rating for a left knee disability, a review of the electronic file shows that the Veteran was afforded a VA examination in March 2013 which addressed that disability. That evidence has not been considered by the originating agency and the Veteran has not waived his right to such consideration. Therefore, the originating agency must consider this new evidence before the Board can do so. Accordingly, the case is REMANDED for the following action: 1. Associate any temporary claims files with the permanent claims file. 2. Issue a statement of the case on the issues of entitlement to service connection for right and left shoulder disabilities. Inform the Veteran of the requirements to perfect an appeal with respect to those issues. If the Veteran perfects an appeal, return the case to the Board. 3. Scheulde the Veteran for the requested videoconference hearing before the Board in accordance with the docket number of his appeal. 4. Then, readjudicate the claims on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs