Citation Nr: 1316541 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-37 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for spondylosis and degenerative disc disease of the lumbar spine. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for a condition of the lumbar spine, claimed as a result of lumbar facet joint injections received at a VA Medical Center (VAMC) on July 22, 2005. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from December 1981 to December 1985, and from June 1991 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2006 and November 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In reviewing this case the Board has not only considered evidence located in the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" (VVA) system to insure a total review of the evidence. A May 2013 review of the VVA paperless claims processing system reveals no additional documents pertinent to the present appeal. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Competent and credible evidence on file indicates that the evidence is at least in relative equipoise regarding the matter of whether currently manifested and diagnosed spondylosis and degenerative disc disease of the lumbar spine are etiologically linked to low back symptoms subjectively and objectively noted during both of the Veteran's periods of service. 2. The grant of service connection for spondylosis and degenerative disc disease of the lumbar spine renders moot the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for a condition of the lumbar spine, claimed as a result of lumbar facet joint injections received at a VAMC on July 22, 2005. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for degenerative joint disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The claim of entitlement to compensation under 38 U.S.C.A. § 1151 for the Veteran's current lumbar spine disability, claimed as a result of lumbar facet joint injections received at a VAMC on July 22, 2005 is rendered moot and is dismissed. 38 U.S.C.A. §§ 1151, 7105 (West 2002); 38 C.F.R. § 20.202 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Finally, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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). Here, with respect to the Veteran's service connection claim for degenerative joint disease of the lumbar spine., the Board is granting this claim. As the Board is taking an action favorable to the Veteran, there can be no possibility of prejudice to him. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). An extended discussion of the duties to notify and assist is thus unnecessary. With respect to the § 1151 claim, for the reasons described herein, the Board finds that this claim must be dismissed as moot. Accordingly, an extended discussion of the duties to notify and assist with regard to this claim is similarly unnecessary. Background The Veteran filed an original service connection claim for a low back disorder in February 2006. The service treatment records (STRs) for the Veteran's first period of service include a November 1981 enlistment examination report which revealed that the Veteran gave no history of recurrent back pain and that clinical evaluation of the spine was normal. In November 1982, he was seen for complaints of back problems between the shoulder blades assessed as muscle strain. Days later in November 1982, a one month history of back problems was noted and sore back was assessed. On a July 1983 report of medical history, the Veteran denied having problems with recurrent back pain. Clinical evaluation of the spine conducted in August 1983 revealed the spine was normal. When seen in April 1984, the Veteran complained of low back pain, assessed as possible pulled muscle. In July 1985, the Veteran complained of back pain, shoulder pain and a cut on the nose following his involvement in a motor vehicle accident. The entry indicated that range of motion was painful, but that there was no deformity of the spine. An October 1985 examination report revealed mild levoscoliosis of the thoracic spine. At that time, the Veteran also complained of recurrent back pain. On a September 1987 report of medical history, the Veteran acknowledged having problems with recurrent back pain. The STRs for the Veteran's second period of service include a July 1991 report of medical history, reflecting that the Veteran did not report having problems with recurrent back pain. A December 1991 discharge examination report reveals that clinical evaluation of the spine was normal and that the Veteran acknowledged having problems with recurrent back pain. The examiner commented that there was a history of low back pain before service in SouthWest Asia which reoccurred. A private MRI study of March 2004 revealed degenerative disc disease of L1-2, and L3-4 through L5-S1, with disc bulging; and mild wedging of the L1 vertebral body. VA X-ray films of October 2004 revealed L1-2 degenerative disc disease and spondylosis and L5-S1 degenerative disc disease. VA records include an entry of March 2005 documenting the Veteran's complaints of a 30-year history of back pain, worse during the past 3 years. Impressions of chronic low back pain and occasional right-sided sciatica, secondary to degenerative disc disease involving L5-S1 and L1-L2, were made. VA records dated in July 22, 2005, reflect that the Veteran underwent right lumbar facet joint injections at L5-S1, and L3-4 and L4-5, under local anesthesia. The needle site was dressed with a band-aid. The record indicates that the Veteran tolerated the procedures well and was transferred to the recovery room in stable condition. The Veteran was discharged home later that morning via ambulatory. It was noted that the Veteran reported that he was feeling better and rated his pain level as "2" at discharge. A VA record of July 28, 2005 reveals that the Veteran called complaining of central back pain since a lumbar facet procedure of July 22, 2005, as well as left side pain, and aching in the legs. He also complained of having continuous headaches for 2 to 3 days after the procedure, which were coming and going thereafter. Comments about the call indicate that the Veteran was upset and stated that his pain was worse, 9/10, than it had been before the injections, at which time it was estimated as 6/10. In an addendum of July 29, 2005, the Chief, Surgical Service, Anesthesiologist, called the Veteran, documenting that the Veteran reported that his pain had increased but followed the same pattern and distribution as before the procedure. It was noted that test facet joint injection could be considered negative. The Veteran was advised that as there had been no improvement in the pain, it was considered that facet joint arthropathy was not the cause of his pain. The Veteran was advised to continue Vicodin and to schedule an epidural steroid injection. A VA clinic note of September 2005 indicates that the Veteran had complaints of chronic back pain, and reported that pain was worse since a right facet injection of July 22, 2005. An assessment of chronic low back pain was made. It was noted that a right facet joint injection of July 22, 3005, had failed, and that the Veteran had earlier declined further injections and cancelled pain management follow up, but now agreed to a follow up visit to discuss other options. A March 2006 entry reveals that the Veteran was having chronic low back pain and right lower extremity radicular for which he underwent right L4-5 transforaminal epidural steroid injections. A follow up note dated later in March 2006 reveals that the Veteran still had chronic back pain and that a steroid injection given earlier in the month did not provide any significant relief. It was noted that he also had symptoms of occasional radiating pain into the legs. In August 2006, a VA examination of the spine was conducted and the claims file was reviewed. The history indicated that the Veteran stated that his lower back started hurting during service from constant standing and guard duty, first noticed in 1982. A CT scan revealed evidence of degenerative changes of the discs of L5-S1 and mild central posterior bulging of the disc space at L5-S1, assessed as degenerative disc disease or spondylosis of L5-S1. Ultimately, lumbosacral spondylosis with degenerative disc and radiculopathy was diagnosed. The examiner observed that on review of the claims folder, although it was shown that the Veteran was treated several times for back pain during service, it was mentioned only on the 1985 physical examination, at which time it was described as mild scoliosis of the thoracic spine with a history of chronic low back pain. The examiner opined that the Veteran's current back condition was diagnosed as lumbosacral spondylosis with degenerative disc and radiculopathy, was less likely than not secondary to his in-service back condition, noted as mild scoliosis. A VA MRI study of the lumbar spine from January 2008 revealed: multi-level degenerative disc disease; herniated disc protrusion at L3-L4 with mild spinal stenosis; moderate spinal stenosis L4-L5 caused by degenerative disc and degenerative facet disease; and mild stenosis at L5-S1. In a September 2009 statement, the Veteran reported that in 1985, he was in an accident while in driver's training on an M109, sustaining injuries to the head injuries, a broken arm, and a back injury. A VA examination was conducted in October 2012, and the claims file was reviewed. The Veteran reported that the onset of his back problems was in 1985, when he sustained an injury as a crewman of an armored vehicle when it ran off a road into a wall. It was noted that he had experienced recurrent back pain since that time, worsening during his 1991 Desert Storm reactivation and deployment. The report indicated that from 1985 to 2003 or 2004, the Veteran worked full-time in a variety in heavy construction and laboring jobs, always putting up with low back pain. He denied having a job-related injury. Lumbar spondylosis and degenerative disc disease with radiculopathy were diagnosed. The examiner opined that it was less likely than not that currently diagnosed chronic lumbar spondylosis and degenerative disc disease with radiculopathy were related to an in-service injury of the low back which occurred in 1985. The examiner observed that the Veteran denied having any specific back injury years later in or out of service, including during 1991 deployment in Kuwait. The examiner noted that examination reports of September 1987 and July 1991 revealed no history of back pain or problems; and that a December 1991 report revealed a positive history of low back pain, and commentary to the examiner to the effect that there was a history of low back pain before service in SouthWest Asia which reoccurred. The examiner noted that the December 1991 examination revealed normal physical examination, with no recommendation for X-ray films or further evaluation. The report also reveals that the first clinical indications of degenerative arthritis were noted in 2004. Ultimately, the examiner concluded that it was more likely than not that the Veteran's lumbar spine disease was related to 25 years of heavy manual labor. In a second opinion, the VA examiner opined that the history and findings of currently diagnosed chronic lumbar spondylosis and degenerative disc disease with radiculopathy do not confirm and additional disability of the lumbar spine, following VA treatment. In this regard the examiner observed, that there had been no history of neurological findings since March 2006; and noted that the Veteran did have worse pains in both lower extremities due to peripheral artery disease. I. Service Connection - Low Back The Veteran maintains that he sustained low back injuries in 1982 and 1985 during his first period of service, and has had chronic and continuous back symptomatology since that time. Generally, in order to prevail on the issue of service connection, there must be evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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; 38 C.F.R. § 3.303(a). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection shall be granted to a Veteran if the Veteran served 90 days or more during a war period or after December 31, 1946 or had peacetime service on or after January 1, 1947, and conditions including arthritis, although not otherwise established as incurred in or aggravated by service, are manifested to a compensable degree within one year following the requisite service. 38 C.F.R. §§ 3.307, 3.309 (2012). The Board must assess the credibility and weight of all the evidence, including 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 claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Indisputably, the record contains medical evidence of a currently diagnosed low back disability. In this regard, lumbar spondylosis and degenerative disc disease with radiculopathy were diagnosed upon VA examination of 2012. With regard to Hickson element (2), STRs for the Veteran's first period of service reflect that he was treated for back symptoms in November 1982, April 1984 and July 1985. STRs for his second period of service include a December 1991 discharge examination report reflecting that clinical evaluation of the spine was normal and that the Veteran acknowledged having problems with recurrent back pain. The examiner commented that there was a history of low back pain before service in SouthWest Asia which reoccurred. In addition, the Veteran has provided a lay history of chronic low back problems and symptoms since his first period of service. In this regard, he is competent to describe symptoms of which he has first-hand personal knowledge and his statements to this effect are considered credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). The remaining question is whether or not currently a currently manifested low back disability was incurred during or as a result of the Veteran's active military service. The Board notes that significantly, the Veteran's currently manifested and diagnosed low back conditions include degenerative joint disease of the lumbar spine, which is an arthritic condition. Arthritis is a chronic condition listed in 38 C.F.R. § 3.309(a), and accordingly, the nexus requirement may be proven by continuity of symptoms. See Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed.Cir.2013) ("Proven continuity of [symptoms] establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease in service ...."); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009) (holding that this Court erred in "stat[ing] categorically that 'a valid medical opinion' was required to establish nexus, and that the appellant was 'not competent' to provide testimony as to nexus because she was a layperson"). The Board observes that the file contains two VA medical opinions, provided in 2006 and 2012, to the effect that it was less likely than not that the Veteran's currently manifested low back problems were due to his military service. However, in both cases, the examiners acknowledged objective and subjective evidence of back symptoms during both periods of his service, and did not fully weigh the Veteran's competent and credible lay statements regarding continuity and chronicity of low back symptomatology since his first period of service. Given the evidence outlined above, the Board concludes that the evidence is at the very least in equipoise as to whether currently manifested low back conditions, including arthritis, are etiologically related to low back problems noted during both periods of the Veteran's service. Further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion. However, to do so in this case would only serve the purpose of obtaining negative evidence. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant). Moreover, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-07 (1994). As such, the Board will resolve all doubt in the Veteran's favor to find that entitlement to service connection for degenerative joint disease of the lumbar spine is warranted. Id. Accordingly, the claim is granted. II. 38 U.S.C.A. § 1151 The Veteran is also seeking compensation under 38 U.S.C.A. § 1151 for a condition of the lumbar spine, claimed as a result of lumbar facet joint injections received at a VA Medical Center (VAMC) on July 22, 2005. The Board shall not address the merits of the Veteran's claim under this theory of entitlement, however, as the Board's grant herein of service connection for a low back disability renders this issue moot. Under VA law, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.202. Here, as a result of the Board's action, no additional benefit (monetary or otherwise) can be gained under 38 U.S.C.A. § 1151. Absent a benefit in question, no controversy remains for adjudication. Therefore, the appeal for this issue is dismissed. ORDER Entitlement to service connection for spondylosis and degenerative disc disease of the lumbar spine is granted. The claim for entitlement to benefits under 38 U.S.C.A. § 1151 for the Veteran's current back disability is dismissed. REMAND In the decision above, the Board granted service connection for degenerative joint disease of the lumbar spine. In light of this, the Board finds that the TDIU claim may not be decided at this time because it s inextricably intertwined with the initial rating to be assigned for the newly service-connected low back disorder. In other words, to provide an appellate decision on the TDIU claim would be, at this point, premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, the RO may decide to pursue further development of the Veteran's employment history, or to obtain additional medical evidence or medical opinion, as is deemed necessary to develop the TDIU claim. Further, as the case is being remanded, and it appears that the Veteran receives his primary treatment through VA, records dated from October 2012 forward will be sought and added to the record, prior to readjudication of the claim. In this regard, a review of the Veteran's VVA folder reflects that VA records were last compiled for the file in November 2012, and are current to mid-October 2012. The Board points out that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); See 38 U.S.C.A. § 5103A (b-c); 38 C.F.R. § 3.159(c). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall provide the Veteran with notice in compliance with the VCAA that informs him of what evidence he must show to support a claim for TDIU. 2. The AOJ shall afford the Veteran an opportunity to submit or identify any additional evidence relevant to TDIU claim. Appropriate steps shall be taken to obtain any identified records. 3. Copies of all available VA records, including treatment, hospitalization and radiology records, assessments and examination reports, dated from October 2012 forward must be requested and associated with the claims file or VVA file, as appropriate. 4. Following the assignment of an initial disability rating for a low back disability for which service connection was granted in the decision above, the AOJ shall also consider the issue of whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16(a) and (b) (as appropriate). In so doing, the AOJ may decide to pursue further development of the Veteran's employment history, or to obtain additional medical evidence or medical opinion, as is deemed necessary. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a SSOC. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs