Citation Nr: 1319092 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-26 432A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for low back disability. 2. Entitlement to service connection for low back disability. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for cervical spine disability. 4. Entitlement to service connection for cervical spine disability. WITNESSES AT HEARINGS ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to November 1976. Prior to and after his active service, the Veteran was a member of the North Dakota Army National Guard (NDARNG). This appeal to the Board of Veterans' Appeals (Board) arose from a September 2007 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Manila, Republic of the Philippines (RPI) that, in pertinent part, denied a reopening of the claims. The RO in Roanoke, VA, exercises current jurisdiction of the claims file. The Veteran testified at two Board hearings before the undersigned Veterans Law Judge in August 2011 and March 2013 at the Board's Central Office in Washington, DC. A transcript of the August 2011 hearing is in the paper claims file, and a transcript of the March 2013 hearing is in one of VA's paperless repositories (Veterans Appeals and Locator System (VACOLS)). The Board has reviewed both transcripts. The issues of whether new and material evidence has been received to reopen claims for entitlement to service connection for irritable bowel syndrome, heart disability (diagnosed as hypertension), a disability manifested by headaches, and hypertension, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Veteran also has a Virtual VA paperless claims file associated with his appeal. A review of the documents in the Virtual file reveal that either they are duplicative of those in the paper file, or the Appeals Management Center (AMC) in Washington, DC, added to them to the Virtual file after considering them. Hence, there is need to seek a waiver from the Veteran or for a remand. See 38 C.F.R. § 20.1304 (2012). In August 2010, the Board remanded the case to the RO via the AMC in Washington, DC, for issuance of a statement of the case (SOC). A SOC had in fact been issued by the RO in September 2008; and, the Veteran perfected his appeal by submission of a Substantive Appeal (VA Form 9). See 38 C.F.R. § 20.200 (2012). Hence, there was no need for further action by the AMC. AMC did cause VACOLS to be updated. The issue of entitlement to service connection for a cervical spine disability is REMANDED to the RO via the Appeals Management Center (AMC), and is discussed in the REMAND section of this decision. FINDINGS OF FACT 1. An October 2005 rating decision determined new and material evidence was not received to reopen claims of entitlement to service connection for low back and cervical spine disabilities. 2. The Veteran did not appeal the October 2005 rating decision and no new and material evidence was received within one year of the notice of that decision. In the absence of an appeal the October 2005 rating decision became final. 3. The evidence received since the October 2005 rating decision triggers the duty to assist with an examination and raises a reasonable possibility of proving the claims. 4. The Veteran's current low back disability is the result of an injury in service. CONCLUSIONS OF LAW 1. The October 2005 rating decision is final. New and material evidence sufficient to reopen claims for entitlement to service connection for low back and cervical spine disabilities has been received. The claims are reopened. 38 U.S.C.A. §§ 5103A(d)(2)(f), 5108, 7105 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.104(a), 3.156 (2012). 2. The requirements for entitlement to service connection for a low back disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1112(a), 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307(a), 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board's decisions are fully favorable to the Veteran; hence no further notice or assistance is needed to aid him in substantiating these aspects of his appeal. Background of Claims to Reopen In light of the Board's favorable decisions, there is no need to discuss the background at length. The Veteran initially applied for VA compensation for his back and neck in February 1983. An April 1983 rating decision determined that, as concerns the neck, no instances of complaints or treatment related to the neck were noted in the service treatment records or at the time of separation from active service. Further, private treatment records noted treatment for a post-service work-related neck injury. Service treatment records did note treatment for multiple complaints of low back pain. At separation, however, no low back disability was diagnosed or otherwise noted. Hence, the RO determined the low back pain was an acute and transitory event, and the April 1983 rating decision denied both claims. The Veteran perfected an appeal, and an April 1984 Board decision denied the claim. Board decisions are final when issued. 38 C.F.R. § 20.1100. The last final rating decision on the issue is the October 2005 rating decision. The Veteran did not submit a notice of disagreement within one year of the decision, nor was new and material evidence received during that period. See 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156(b). Although the Veteran did submit a statement in July 2006, in which he claimed service connection for a back disability as secondary to a service connected psychiatric disability, he did not submit any pertinent evidence in support of his theory. It would require medical expertise to say that the back disability was caused or aggravated by a mental disorder, because this is a complex medical question not susceptible to lay observation. Hence the opinion was not competent evidence. It would not have triggered VA's duty to provide an examination, because the unsupported assertion that one condition caused another was insufficient to trigger that duty. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). His most recent application was received in July 2006. As earlier noted, a September 2007 rating decision determined new and material evidence was not received. New and Material Evidence Generally, an RO decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(d)(3). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 488 (1997). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Analysis As noted earlier, the deficiency found in the Veteran's prior efforts to reopen his claims was competent evidence that his neck and low back disabilities were causally related to active service. The evidence added to the record since the October 2005 rating decision includes the testimony of the Veteran and his wife and the opinions of two physicians. In a September 2007 Medical Certificate, which VA received in May 2008, Dr. R. noted the Veteran had consulted the doctor's clinic for neck and back pain. Based on his examination of the Veteran and the Veteran's reported history, Dr. R opined the Veteran's neck and low back disabilities may be causally related to his active service, to include the in-service symptoms for which the Veteran was treated prior to discharge. Dr. A referred the Veteran to Dr. R. Dr. A also submitted a September 2007 Medical Certificate which VA received in May 2008. Dr. A rendered a similar opinion. In light of the fact that Drs. A's and R's certificates are new evidence; and, all new evidence is presumed credible, their opinions are deemed new and material evidence, as they provide a potential medical nexus between the Veteran's neck and back disabilities and his active service. 38 C.F.R. § 3.156(a). Thus, the claims are reopened. Merits of Low Back Claim Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Certain chronic diseases such as arthritis are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element in a claim involving a chronic disease, is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007), if the condition is a chronic disease. Walker v. Shinseki, 708 F.3d 131 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was "noted" during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Walker, supra; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). If a chronic disease is adequately demonstrated during service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 profession." Jandreau, 492 F.3d at 1377; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.303(d), 3.307, 3.309. The Board must fully consider the lay assertions of record. Davidson, 581 F.3d 1313. A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her 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, 581 F.3d at 1316; See 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, supra. The Board is charged with the duty to 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). Indeed, 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 the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). The 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, 2 Vet. App. at 618. 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, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis Low Back The Veteran asserts that, during a tour of active duty for training with the NDARNG in 1972, he was carrying one end of a heavy object (a trestle) when the person carrying the other end dropped it without warning. The Veteran held on to the object and experienced pain in his lower back. The Veteran asserts he sought medical treatment after the incident. Prior RO efforts to obtain any related records extant from the ARNG were unsuccessful, as that agency advised there were no records of the reported incident. Service treatment records reflect that the Veteran was seen in December 1974 for back pain, which had been present for one week, with no history of trauma and full range of motion. The Veteran gave no history of back injury. He was instructed to apply hot packs and to avoid push-ups for twenty four hours. He was seen again for back pain in June 1975, which had been present for six weeks. It was reported as a low grade pain with a cracking sound. The Veteran indicated that the pain worsened when he wore his pack. The Veteran reported that there was no history of trauma to the back but that his back pain began in December 1974. No abnormal curvature of the spine was noted, there were no muscle spasms and his range of motion was unrestricted. The impression was possible low grade back pain. The Veteran was told to perform exercises and to return to the clinic as needed. The Veteran was treated again for back pain in August 1976, when he complained of muscle pain in his lower back. He reported a 20 month history of low back pain, with no trauma or leg pain. He had full range of motion, with no spasm. His deep tendon reflexes were 2+ bilaterally. He was assessed with chronic low back pain. His separation examination revealed a normal spine. The Board notes the transcript of a June 1983 RO hearing related to the Veteran's first attempt to obtain entitlement to service connection. The transcript reflects that, in addition to the hearing officer, a VA physician was in attendance. The VA physician observed there was no significant evidence of thoracic-lumbar spine arthritis at that point in time. Following the hearing, 1979 x-rays of the Veteran's lumbar spine were reviewed, and they were read as within normal limits. Thus, the Board finds there is no factual basis for service connection on a presumptive basis. 38 C.F.R. §§ 3.307(a) and 3.309(a). The evidence of record shows the Veteran to have sustained more than one post-service work-related back injury, including lifting-type injuries. A private physician opined in February 1989 that the Veteran had early degenerative changes in the lumbar spine but no evidence of spine bifida. The examiner also noted he could not say if the Veteran's back injury was related to an injury in service. In his January 2012 VHA opinion, Dr. S.R., MD, noted he conducted a review of the numerous and extensive files related to the Veteran. He noted the Veteran's report of the 1972 injury for which there was no documented confirmation, and instances in the service treatment records and private records where the Veteran was treated for complaints of low back pain. Dr. R noted a CT study of the low back as far back as 1990 suggested a bulging disc at L4-5 with mild stenosis; and, over the years, mild to moderate degenerative changes in the lumbar spine and facets. Dr. R opined that, in the absence of any documented injuries to the Veteran's low back in 1972 or 1976, the Veteran's currently diagnosed low back disability is related to the post-service repeated minor injuries and as a natural progression related to aging. Thus, Dr. R opined it was not likely the Veteran's low back disability was related to his active service. In February 2012, the Board requested clarification; specifically, the Board reminded Dr. R that lay testimony was relevant on the issue, and also asked Dr. R to opine whether the in-service instances documented in the service treatment records could have made the Veteran more susceptible to his post-service injuries. In his March 2012 addendum, Dr. R noted the Veteran's documented in-service treatment and the number of repeat minor injuries over the course of two or three decades the Veteran sustained. Dr. N noted he could not state that any in-service injury or back pain could have made the Veteran more susceptible to his post-service injuries, but he could state the in-service events may have been the first of many injuries. Dr. N noted that, while he did not believe the Veteran's reported in-service injuries inevitably led to the Veteran's long-term low back problems, it was, rather, just the first in a series of later events. Dr. R noted that he thus concluded that the reported in-service injuries were as likely as not related to the Veteran's current complaints. Dr. R opined further that the burden of proof would have to rest on subjective history rather than any objective findings. In light of the state of the evidence, the Board does not deem expenditure of further efforts to obtain additional clarification is indicated. See generally Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The Board notes that, in addition to the evidence of post-service work-related injuries, the medical paper trail corroborates the Veteran's lay reports of chronic low back pain. Nonetheless, pain alone is not subject to service connection. There must be a diagnosed underlying disability associated with the pain. Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) ("[P]ain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."). There was no diagnosed low back disability at the time the Veteran separated from active service or within one year of his separation. Thus, service connection may not be shown on the basis of continuity of symptomatology. 38 C.F.R. § 3.303(b); Walker, 708 F.3d 131. On the other hand, while there is an element of vagueness to Dr. R's addendum, the Board finds it sufficient to place the state of the evidence related to the low back in equipoise. Given this state of affairs, the doubt is resolved in the Veteran's favor. Hence, the Board allows the claim on the basis of a positive medical nexus opinion of a causal connection between the Veteran's currently diagnosed low back disability and his active service. 38 C.F.R. § 3.303(a) and (d). The Board now considers the cervical spine claim. ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for low back disability; Entitlement to service connection for low back disability is granted. New and material evidence has been received to reopen a claim for entitlement to service connection for cervical spine disability. The appeal is granted only to that extent. REMAND The Board is generally precluded from considering a claim in the first instance on a basis different from that of the agency of original jurisdiction. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (holding that in its review of the RO's decision on a claim, if the Board is required to address an issue related to that matter that was not previously considered by the RO, the Board must either remand the matter to the RO or secure the appellant's waiver). The Court has previously held that the Board may consider the merits of a reopened claim in the first instance, provided it can be shown that the claimant would not be prejudiced. Bernard v. Brown, 4 Vet. App. 384 (1993). The Court has since cast doubt on the continued validity of its holding in Bernard. Gardner v. Shinseki, 22 Vet. App. 415, 418, footnote 2 (2009) (noting that the decision of the U.S. Court of Appeals for the Federal Circuit in Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1346-48 (Fed.Cir.2003) calls into question the ability of the Board to reopen a claim and decide the matter on the merits without remanding the claim to a regional office for a decision on the merits in the first instance). It also does not appear that the Veteran's periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) have been verified. This could be relevant to his claim for service connection. Accordingly, the appeal is REMANDED for the following: Verify the specific periods of the Veteran's ACDUTRA and INACTUTRA with the NDARNG. Adjudicate the Veteran's claim for service connection for a cervical spine disability on the merits. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. 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). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs