Citation Nr: 1318362	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  04-28 120	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to service connection for a low back disability.

2. Entitlement to service connection for a skin disability, other than status-post varicella.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel



INTRODUCTION

The Veteran served on active duty from July 1988 to February 1989; January 1991 to October 1991; and September 2000 to May 2001. He served in Southwest Asia during the Gulf War from February 1991 to September 1991. 

This appeal originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. 

In May 2007, the Board remanded the claims for additional development. 

In a November 2010 decision, the Board granted service connection for hypertension and reopened the claim of service connection for headaches. The issues remaining on appeal were remanded for additional development. 

In July 2012, the Board denied the claims of service connection for meningioma, headaches, and muscle pain, and remanded the issues of entitlement to service connection for low back and skin disabilities for further development, which included affording the Veteran additional VA compensation examinations. Those examinations were conducted in August 2012. 

Based on the findings of the additional skin examination, the Appeals Management Center (AMC) granted service connection for varicella, status-post, and assigned a noncompensable rating, effective June 3, 2003. This award represents a complete grant of the benefit sought with respect to varicella. However, because the Veteran is diagnosed with other skin conditions, the Board has recharacterized the skin claim as reflected on the title page of this decision and it is still in appellate status. 

The claim of service connection for a skin disorder is not ready for appellate review and must again be REMANDED to the RO via the AMC, in Washington, DC.



FINDING OF FACT

A low back disability was not incurred in or aggravated by the Veteran's active military service.  


CONCLUSION OF LAW

The criteria for the establishment of service connection for a low back disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all five elements of a service-connection claim: 1) Veteran status, 2) existence of a disability, 3) relationship between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, if notice was not provided prior to initially adjudicating the claim or, if provided, was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is preserved, so not frustrated, in that the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The Veteran was provided notice letters in July 2003, August 2007, August 2009, November 2010, and July 2012. These letters notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He has also been advised as to how disability ratings and effective dates are assigned. See Dingess, supra. And after all notice was provided to him, his claim was then readjudicated by way of an SSOC issued in March 2013. He has therefore received all required notice concerning his claim, and it has been reconsidered since providing all required notice.

VA also has a duty to assist the Veteran in the development of this claim. This duty includes assisting him in the procurement of his service treatment records (STRs) and pertinent post-service treatment records (VA) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

All necessary development has been accomplished to the extent possible and, therefore, appellate review of this claim may proceed without unduly prejudicing the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims folder contains the Veteran's STRs, VA medical evidence, and private medical evidence. VA also afforded the Veteran VA spine examinations. 

The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. In response to the latest SSOC, the Veteran indicated, in April 2013, that he had no additional evidence regarding his appeal and asked that his case be sent to the Board immediately. He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VA's duties to notify and assist him with this claim have been satisfied.

 Service Connection Claim

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air 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 diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d) (2012).

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77  (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247, 252 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). 

Certain chronic disabilities, to include arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 

Additionally, claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470  (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428  (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board must assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072  (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit , citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).

The Veteran asserts that he has a low back disability as a result  heavy lifting while working as a cashier during service. In his initial service connection claim received in 2003, he stated that he has had a back condition since 2000. In his February 2004 notice of disagreement, he related his back disability to his service in the Persian Gulf, which took place in 1991. More recently, in a September 2009 signed statement, the Veteran attributed his low back disability to anthrax pills administered during service. 

There is evidence of a current disability. An August 2003 VA examination report shows diagnoses of lumbar myositis, posterolateral disc herniation at L4/5, and lumbar degenerative joint disease. A November 2005 private magnetic resonance imaging (MRI) scan showed evidence of L4-5 soft disc herniation with central spinal canal stenosis with severe compression of the thecal sac and crowding of the cauda equina, as well as disc bulges.

However, although the Veteran reports having had back pain in service, he acknowledges that he did not seek treatment in service. Indeed, his service treatment records are negative for any low back complaints, treatment, and/or disability. 

There also is no x-ray evidence of arthritis of the low back within the first 
post-service year. To the contrary, x-ray evidence of arthritis of the low back is not first shown in the record until August 2003, approximately two years after his third period of active service. 

The determinative issue, therefore, is whether his current low back disability, including degenerative changes, is related to his active service. 

The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993), and Colvin v. Derwinski, 1 Vet. App. 171 (1991). 

The record contains two medical opinions addressing the etiology of the Veteran's current low back disability. In his February 2010 opinion, Dr. N.O.V., a private physician, stated that it was more probable than not that the Veteran's back problems were secondary to his duties in service.  An August 2012 VA examiner determined that it was less likely than not that the Veteran's low back disability was incurred in or caused by the claimed in-service injury, event, or illness. 

After considering the evidence both for and against the claim, the Board finds the statement of the private physician supporting the claim less persuasive in light of the overall record than the statement against the claim. Dr. N.O.V. stated that the Veteran was in good state of health prior to service, but since his return, he presented with a series of problems, to include a back disorder, that is more probable than not service connected. However, there is no indication that this physician had the benefit of reviewing the Veteran's claims file. Dr. N.O.V.'s opinion is predicated merely on the Veteran's self-reported history, rather than on a review of these records. While not dispositive, the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional. Leshore v. Brown, 8 Vet.App. 406 (1995). There is no indication that the non-VA physician was aware of the Veteran's history, irrespective of review of the claims folder. See generally Kowalski v. Nicholson, 19 Vet.App. 171 (2005) (holding that it is error to reject a medical opinion solely on the basis that the medical opinion was based on a history given by the veteran). 

There is also no indication that this physician conducted a comprehensive examination of the Veteran. These deficiencies limit the probative value of Dr. N.O.V.'s opinion. See Nieves-Rodriguez v. Peake, 22 Vet App 295, 304 (2008) (the commenting medical expert must be informed of sufficient facts upon which to base an opinion relevant to the problem at hand, and most of the probative value of the opinion is derived from discussion of the underlying medical rationale, not instead from mere review of the claims file).

Instead, the Board finds that the opinion provided by the VA examiner in August 2012 to be the most probative in this case, as it relied on sufficient facts and data, provided a rationale for the opinion, and contains sound reasoning. Nieves-Rodriguez, supra.  This examiner essentially stated that there is no evidence in the claims file that supports a relationship between the Veteran's current low back findings and his military service. Notably, this examiner conducted a comprehensive examination and reviewed the Veteran's claims file, which includes his statements, STRs and Dr. N.O.V.'s statement. In other words, this August 2012 VA opinion is more-informed.

The Veteran is competent to report observable symptoms, such as pain in his low back. However, the question of whether his current low back disorder is related to his service is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). Because the evidence does not indicate that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning a back condition, he is not competent to comment on the etiology of his low back disability. Accordingly, the competent medical evidence outweighs his unsubstantiated lay reports regarding etiology.

The preponderance of the evidence shows the Veteran has not experienced continuous low back symptoms since his service. His assertion of continuity of symptomatology since service, while competent, is not credible, and therefore not  probative. As explained, arthritis is a chronic condition listed in § 3.309(a) and therefore the showing of continuity of symptomatology since service is allowed to establish the required chronicity of disease or injury in service and linkage between current disability and service. However, as indicated, there is no evidence of low back arthritis until 2003, which is approximately twelve years after his Persian Gulf service and two years after his third period of service. This multi-year gap is not altogether determinative or dispositive of whether he had low back problems during those intervening years dating back to his service, but it is nonetheless probative evidence tending to refute this notion. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, not the only or sole factor). He has not shown continuity of symptomatology since his service discharge as it pertains to his low back arthritis. 

Most critically, the Veteran's essential contention of a nexus between his low back disability and service has been fully investigated as mandated by the Court's decision in Jandreau. For the reasons and bases discussed above, the most probative evidence indicates that his low back disability is less likely than not related to his active service. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the preponderance of the evidence is against this claim and the appeal will be denied. 


ORDER

Service connection for a low back disability is denied.


REMAND

A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not substantially complied with, the Board itself errs in failing to insure compliance; in such situations the Board must remand back to RO for further development. See Stegall v. West, supra.

The August 2012 skin examination is not sufficient to adjudicate this appeal, in particular as to  the Veteran's xerosis and tinea versicolor. 

The August 2012 VA examiner was asked to provide an opinion as to whether xerosis first manifested in service or is otherwise medically related to an injury or other event or incident of active service. The examiner determined that the Veteran's xerosis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner stated that xerosis was diagnosed in August 2003 which is beyond one year after leaving active service in May 2001. The  examiner mistakenly believed that in order to grant service connection there must be evidence of xerosis within one year of service discharge. However, a presumption is not afforded such skin condition.  See 38 C.F.R. §§ 3.307, 3.309 (2012). The examiner must clarify his opinion by indicating whether the Veteran's xerosis had its onset in service or is otherwise related to service and provide supporting explanation. 

The August 2012 VA examiner was asked to determine whether the Veteran's preexisting tinea versicolor was aggravated during active service beyond the natural progress of the disease. The examiner indicated that the Veteran's tinea versicolor was aggravated beyond it natural progression by an in-service event. However, the examiner stated that during enlistment, the Veteran had tinea only on his back, but at present, he has it on his back, trunk, arms, and legs. The examiner's statement  merely reiterates what is already known - that the Veteran had tinea upon enlistment and currently has it. However, the examiner did not state any opinion as to how the Veteran's tinea versicolor was (or was not) aggravated during service beyond its natural progression. 
 
Accordingly, the case is REMANDED for the following action:

1. Return the claims file to the examiner who conducted the August 2012 VA skin examination for an addendum. The examiner MUST respond to the following:

a. Indicate whether the Veteran's xerosis first manifested in active service or is otherwise medically related to service.  Reconcile the opinion with all evidence of record, to include the Veteran's competent report of having dry skin in service. 

b. Indicate whether the Veteran's tinea versicolor (detected upon enlistment examination in 1988) was aggravated during active service beyond the natural progression of the disease. 

The examiner's opinion MUST BE COMPLETELY EXPLAINED for all opinions and conclusions reached. It therefore is imperative the examiner have opportunity review or refamiliarize himself with the evidence in the claims file, including a complete copy of this remand.

If this examiner is no longer available to provide this additional comment, then obtain it from a suitably qualified PHYSICIAN. Any further medical examinations may be conducted. 

2. After the requested examination has been completed, the report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it must be returned to the examiner for corrective action.

3. Finally, after undertaking any other development deemed appropriate, re-adjudicate the service connection claim for a skin disorder, other than status post varicella. If the benefits sought are not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.

By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. 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).



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs