Citation Nr: 1319762 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 12-16 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for degenerative joint disease, thoracolumbar spine. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran had service in the Army National Guard from March 1957 to March 1963, with periods of active duty for training (ACDUTRA) from: June 1, 1957, to November 18, 1957; August 16, 1958, to August 30, 1958; June 27, 1959, to July 12, 1959; and August 5, 1960, to August 21, 1960. The Veteran also had a period of active duty from October 15, 1961 to August 15, 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 decision of the Huntington, West Virginia, Regional Office (RO). In January 2013, the Veteran and his spouse testified via videoconference before the undersigned Veterans Law Judge (VLJ), seated at the Board's Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. The Veteran submitted additional evidence at the time of his hearing, with a waiver of RO consideration of the same. The VLJ agreed to hold the record open to allow the Veteran an opportunity to submit additional evidence; however, to date, no such evidence has been received. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Resolving all doubt in favor of the Veteran, his degenerative joint disease, thoracolumbar spine, had its onset during a period of ACDUTRA or INACDUTRA. CONCLUSION OF LAW The criteria for service connection for degenerative joint disease, thoracolumbar spine, have been met. 38 U.S.C.A. §§ 101, 106, 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist the Appellant In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied, including whether the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) (2012), is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay 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. 38 U.S.C.A. §§ 1101, 1131; 38 C.F.R. § 3.303 (2012); 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). 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, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F. 3d 1372 (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 term "Veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a),(d). To establish status as a "Veteran" based upon a period of ACDUTRA or INACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. 38 C.F.R. § 3.1(a),(d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "Veteran" for other periods of service (active duty, etc.) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA or INACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Certain presumptions that apply to periods of active duty are inapplicable to periods of ACDUTRA and INACDUTRA, specifically, the presumption regarding the incurrence of conditions that are considered chronic, such as arthritis, if initially manifested to a compensable degree within the initial post-service year. See Smith v. Shinseki, 24 Vet. App. 40 (2010). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's degenerative joint disease of the thoracolumbar spine was more specifically diagnosed as spinal stenosis, lumbar region, without neurogenic claudication; and spondylosis, lumbar region, on VA examination in April 2012. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the determinative issue is whether the diagnosed disability is related to his military service. The Veteran asserts that he injured his low back in an accident during service in 1959. He denied any other back injuries during his subsequent periods of service. He reported, in his October 2009 statement, that he fell off the back of a M48 tank at Fort Knox during training. The Veteran's service treatment records are negative for any in-service complaints or treatment for any lumbar spine or similar condition. Examination and history reports are silent for any clinical findings or report of a history of back injury or pain. A number of lay statements have been submitted in support of the Veteran's claim. While the Veteran's wife submitted a written statement in December 2010, such is similar to her testimony before the Board in January 2013. In a statement received by VA in October 2010, a friend who had known the Veteran since 1955 asserted that when the Veteran returned home from the Army, he complained of back problems and reported that he had fallen off of a vehicle during transport and dismissed it, as he did not want to appear weak. In statements received by VA in December 2010, two fellow service members reported that they were in the Veteran's unit in Fort Knox and the Veteran slipped off of a tank and fell several feet, landing on his back. They reported that the Veteran refused medical attention when several fellow service members helped him back on the tank. They also reported that they had known the Veteran for several years and since that time, the Veteran had had pain in the back. At the time of the Veteran's January 2013 Board hearing, the Veteran's representative discussed the results of the April 2012 VA examination and in essence reported that while the examiner noted that the Veteran had a "lifetime" of activities since his military service, the Veteran instead led a relatively sedentary life, with employment in management positions. The Veteran described his fall, reporting that he was on a rough terrain course before returning to the motor pool for refueling and as he climbed up the tank, he slipped and fell backwards to the ground, flat on his back, on the base of his tailbone. He reported that he feared reprisal for reporting an injury, and was brought up to work through pain. He asserted that he self-treated his back symptoms with heat and over-the-counter medication. His representative noted that at that time in history, a back injury could have had an impact on obtaining employment. The Veteran described his post-service employment and reported that he was a shop foreman, a squad leader, a shop owner, and a supervisor, and did not engage in heavy lifting or manual labor. He reported that his subsequent periods of service did not require heavy lifting or physical labor. He denied any active hobbies such as hunting or four-wheeler riding, and reported that he only played cards or did nothing. The Veteran and his spouse reported that while he refused treatment for many years, he eventually saw a family doctor, and was treated with pain medication. The Veteran's spouse reported that she remembered the injury, and described that she and the Veteran were married at that time and had a 10-month old baby, and the Veteran came home on leave and said that his back was hurting. She asserted that the Veteran said there was something about a tank and dismissed it, but that he could barely pick up their baby. She noted that since that time, when the Veteran was younger, he used pain medication and could work; but that now, he is older and cannot do anything. She reported that they had to hire someone to do lawn work or hang Christmas lights and their grandchildren take care of the garbage. She asserted that the Veteran has had recurrent back problems since the 1959 injury. Private treatment records from the Veteran's family doctor indicate that in as early as 2003, he complained of back pain. On VA examination in April 2012, subsequent to review of the claims file and physical examination, the examiner opined that the Veteran's lumbar spine disability was less likely than not incurred in or caused by his claimed in-service injury. She reasoned that despite the fact that the Veteran presented for examination and described extreme back problems; the only evidence that the injury occurred was a buddy statement and the Veteran's own claim, the Veteran denied any back problems during in-service examinations, and he had 53 subsequent years of a lifetime of activities. She reported that while the Veteran may have indeed fallen off of a tank, he did not seek care for a back disability until five years ago. In a May 2012 statement, one of the Veteran's chiropractors reported that he could not rule out a past fracture, and that such could be related to an injury incurred during service. In a September 2012 statement, the same chiropractor also opined that it could be certainly possible that the Veteran's arthritis is related to an injury he obtained during service. In a statement received by VA in February 2013, another chiropractor reported that the Veteran's in-service injury could possibly be related to his pain at the present time The Veteran's statements, and those of his friend, two fellow service members, and his spouse, relating to the in-service onset of back symptoms in 1959, are competent because the matters are within lay observation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau, 492 F.3d 1372, at 1377. There is no evidence that the parties are not credible. The Veteran has offered a reasonable explanation as to why his service treatment records are silent for any complaints of back pain or report of the 1959 injury; and his explanation is supported by the lay statements of his friend, fellow service members, and spouse, as to his personality and fears of seeking treatment. The Veteran has also offered a reasonable explanation as to why he did not seek treatment immediately subsequent to discharge from service, by describing his method of self-treatment as well as his relatively sedentary post-service employment; and his explanation is supported by the lay statements of his spouse. In the aggregate, these factors render the lay statements of record as to the onset of recurrent back symptoms competent, credible and highly probative. See Buchanan, 452 F.3d at 1335; see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). While reporting current examination finding and detailing both the medical and lay evidence, the VA examiner improperly relied largely, if not entirely, on the absence of corroborating medical evidence, to support the negative etiological opinion, failing to adequately consider and address the competent, credible and highly probative evidence in favor of the claim. See Dalton v. Nicholson , 21 Vet. App. 23, 39-40 (2007). Thus, the VA opinion is incomplete and is of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Also, the chiropractors used the terms "possible" and "could be" in their positive nexus opinions. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) ("may be" in the context of a medical opinion is the same as "may not be" and therefore cannot provide the requisite nexus). Further, the chiropractors did not provide rationale for their opinions based on the evidence of record. Thus, the private opinions from the Veteran's chiropractors are incomplete and are of little probative value. See Nieves-Rodriguez, 22 Vet. App. 295. However, after resolving all reasonable doubt in the Veteran's favor, his degenerative joint disease, thoracolumbar spine, had its onset in 1959, during a period of ACDUTRA or INACDUTRA. In this regard, the Board notes that the Veteran asserts his injury occurred during service in 1959. His service personnel records include record of only one period of ACDUTRA during 1959, dated from June 27, 1959, to July 12, 1959. As the Veteran's service treatment records are silent for a 1959 injury, the Board is unable to determine if the injury occurred during his period of ACDUTRA or during a period of INACDUTRA in 1959. In any event, as the Veteran was disabled from an injury, instead of a disease, the regulations applying to periods of ACDUTRA and INACXDUTRA apply and no distinction is required. 38 U.S.C.A. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a),(d). (Continued on the next page) In sum, the Veteran has a current diagnosis of a back disability and the competent, credible and persuasive evidence sufficiently places the onset of this condition in service. See Davidson, 581 F.3d 1313, at 1316; Jandreau, 492 F.3d at 1376-77. Service connection is warranted and the appeal is granted. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER Service connection for degenerative joint disease, thoracolumbar spine, is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs