Citation Nr: 1320320 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-27 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a low back disorder (claimed as back pain), including as secondary to a service-connected ventral hernia. 2. Entitlement to service connection for leg pain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran had honorable active military service from October 1950 to September 1953. His subsequent service from October 1953 to August 1958 was under other than honorable conditions and, therefore, disqualifying from receiving VA benefits in relation to that additional service. This appeal to the Board of Veterans' Appeals (Board) is from a February 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, denied claims for service connection for back and leg pain. Given that an averred theory of recovery for service connection for a lower back disorder is that of a secondary medical relationship to a ventral hernia, the Board has characterized this claim accordingly, and moreover, will decide this revised claim in the first instance inasmuch as a favorable decision is being issued. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction (AOJ), the Board must consider whether the Veteran has been prejudiced). In September 2011, as support for these and other claims he also had appealed, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. Relevant to that proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court/CAVC) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Here, during the hearing, the presiding VLJ noted the basis of the prior determination and the elements of the claims that were lacking to substantiate it. In addition, the presiding VLJ sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might help to substantiate the claims. Moreover, neither the Veteran nor his representative asserted during or since the hearing that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise identified any prejudice in the conducting of that hearing. To the contrary, the hearing focused on the elements necessary to substantiate the claims. As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in section 3.103(c)(2) such that the Board may adjudicate the claims based on the current record. In December 2011, the Board issued a decision denying the two other claims the Veteran also had appealed - for a rating higher than 40 percent for the postoperative residuals of his ventral hernia and for a temporary total rating, so a temporary 100 percent rating, for convalescence following an inguinal hernia repair in October 2010. The Board then remanded his remaining claims for service connection for back and leg pain for further development and consideration, including especially to refer the file to a VA compensation examiner for supplemental comment (an addendum medical opinion) regarding the likelihood the Veteran's service-connected ventral hernia had aggravated his low back disability with associated leg pain. The Board again remanded the claims in November 2012 because the supplemental medical opinion obtained did not resolve the determinative issue of whether there had been aggravation. A medical opinion from a different evaluating VA physician since has been obtained. Hence, these remaining claims are now ready to be decided. Please also 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). FINDINGS OF FACT 1. The Veteran's low back disorder - namely, his lumbar spondylosis - has been chronically worsened by his service-connected ventral hernia. 2. His bilateral leg pain is on account of sciatic neuropathy associated with his low back disorder. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, his low back disorder and associated leg pain are proximately due to, the result of, or aggravated by his service-connected ventral hernia. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). A regulatory amendment effective for claims pending as of or filed after May 30, 2008, removed the so called "fourth" requirement that VA also specifically request that he provide any evidence in his personal possession pertaining to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1). The Board is granting the comprehensive benefits sought on appeal of entitlement to service connection for a low back disorder with associated bilateral leg pain. Hence, even assuming, without deciding, that any error was committed in notifying and assisting the Veteran with these claims, it is ultimately harmless, so non prejudicial. 38 C.F.R. § 20.1102. This is because the claims are being granted, regardless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating VCAA notice and assistance errors are not presumptively prejudicial, even when shown to have occurred, rather, must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran bears this burden of proof of not only establishing error, but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim). There simply is no such possibility in this instance. Governing Laws and Regulations, Background and Analysis Service connection is granted for current disability resulting from a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases are considered chronic, per se, including arthritis, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Also of application to claims for direct service connection is the principle that where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. On the other hand, continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. In this circumstance, a showing of continuity of symptomatology since service is required establish chronicity of disease or injury in service and in turn link current disability to service. 38 C.F.R. § 3.303(b). However, the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) since has clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that this notion of continuity of symptomatology is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). In addition to the aforementioned theories of direct and presumptive service connection, service connection also may be granted on a secondary basis for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of § 3.310(b), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by the service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). Ultimately, though, the determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit Court commented that competence to establish a diagnosis of a condition can exist 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 professional. Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). But, to reiterate, establishing the required linkage between current disability and service alternatively by way of this continuity of symptomatology proof exception is not available to conditions that are not specifically identified as "chronic" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Federal Circuit Court has further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. But as also observed by the Federal Circuit Court, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). 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. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran has contended as a basis for entitlement that he sustained a back injury in service during a parachute jump accident, and has also since developed shooting pains down his lower extremities. A secondary theory of entitlement advanced is that his back problems developed, or at the very least were substantially aggravated, by his service-connected ventral hernia condition. Based on the evidence now of record, it is upon this latter theory of recovery that his claim ultimately prevails. A review of the service treatment records (STRs) in this case does not immediately indicate any report of a parachute injury during the Veteran's period of service that was honorable (i.e., from October 1950 to September 1953). During this same time period, however, the Veteran earned, among other medals and commendations, the Parachute Badge and the Combat Infantry Badge (CIB). Thus, since his reports of injury from parachute jumps are consistent with the terms, conditions, and hardships of his service, they are accepted as competent and credible evidence of this type of injury during his service, even absent evidence documenting such a back injury in service. See 38 U.S.C.A. § 1154(a) and (b); 38 C.F.R. § 3.304(d). As indicated though, the basis that supports recovery is one of secondary service connection. Thus, while the Board regards the Veteran's reported in-service parachuting injury as competent and credible, it is a different theory along with supporting evidence underlying the Board's favorable decision. To this effect, the September 2009 correspondence from Dr. C.L.P., private physician, indicates his opinion that the Veteran's incisional hernia had contributed to his increased back pain. It was observed in this regard that weak abdominal muscles often contributed to back pain and disability. The correspondence continued that proving an increased disability might be difficult for the Veteran in light of the fact that he routinely played recreational golf. The Veteran then underwent a December 2009 VA Compensation and Pension examination, which following physical examination, resulted in the opinion that the Veteran "has lumbar spondylosis which is a common degenerative condition of the lumbar spine which would have no relationship to his ventral hernia." The Board's December 2011 remand observed that the December 2009 VA examiner's opinion was deficient in that it did not clearly consider whether the service-connected ventral hernia had aggravated the Veteran's low back disability with associated leg pain, as another viable basis for granting secondary service connection. See again, 38 C.F.R. § 3.310(b). Prior to when a VA addendum opinion could be obtained, a February 2012 statement from Dr. R.H.L., private physician was received indicating that "prior to the repair of his inguinal hernia [emphasis added], it was coming out on him a lot, at which time he would have to bend over a lot to try to reduce the hernia. In doing so, this did give him an increase in back pain. Prior to his surgery his increase in back pain certainly could have been aggravated by the hernia, because of him having to reduce it so frequently." [The Board observes that this opinion cites a nonservice-connected inguinal hernia as a contributor to back pain, and since it involves the secondary consequence of a nonservice-connected disability is inapposite to the instant claim.] Thereafter, a March 2012 VA supplemental opinion was acquired indicating that the Veteran's "ventral hernia did not aggravate his lumbar spondylosis, but it did at least as likely as not aggravate the Veteran's muscular low back pain secondary to decreased core strength and increased demands on his low back." After a second remand by the Board for a more comprehensive opinion (in light of the fact that back pain alone, without underlying pathology did not constitute a compensable disability for VA purposes), a January 2013 VA supplemental opinion was obtained, indicating as follows: The Veteran's low back disability of lumbar spondylosis is unlikely to be directly related to any injury during his military service and is more likely than not related to advancing age. The Veteran's lumbar spondylosis is unlikely to have initially manifested during the one year presumptive period following Veteran's service as this is a prolonged degenerative process and the Veteran developed pain related to this condition in the 1990s. The Veteran's service-connected ventral hernia has aggravated the pain and disability of his low back condition of lumbar spondylosis because it has increased the tension, pressure, and muscular strain on the Veteran's back musculature and spine discs and facet joint which leads to an increase in pressure and pain. The Veteran's ventral hernia has led to abdominal core weakness which has increased the Veteran's back pain related to his lumbar spondylosis and at least as likely as not has aggravated the Veteran's back condition of lumbar spondylosis. The Veteran's "muscular" pain is related to his spondylosis because the muscular tension and spasms to help alleviate the joint pain is related to the Veteran's spondylosis which has been aggravated from the decreased core strength caused by the ventral hernia. Based on the foregoing, the Board now has before it definitive and competent medical evidence etiologically linking a low back disability, specifically lumbar spondylosis, to the Veteran's existing service-connected ventral hernia, and therefore, a tenable basis upon which to establish secondary service connection for the lower back disorder. The dispositive opinion is the January 2013 VA examination addendum, which explains that the Veteran's ventral hernia has led to abdominal core weakness, which in turn aggravated lumbar spondylosis. This falls within the ambit of secondary secondary connection based on a service-connected disability chronically and substantially aggravating a nonservice-connected condition, under 38 C.F.R. § 3.310(b). Moreover, the opinion proffered establishes lumbar spondylosis, a distinct and identifiable pathology, as the disability in question, rather than merely citing the contribution of a ventral hernia to back pain, given that the symptom of pain in and itself is not recognized as disabling for VA compensation purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain 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."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Indeed, the Board notes that the January 2013 VA opinion also closely parallels the reasoning and conclusion of the September 2009 private physician's opinion, finding that weakening of the abdominal wall from the incisional hernia strongly contributed to back problems. A March 2012 VA supplemental opinion reached a similar conclusion. However, both earlier opinions only identified back pain as the resultant disability -- there is now a definitive finding of lumbar spondylosis linked to the underlying ventral hernia. Accordingly, there are sufficient grounds upon which to premise a grant of service connection for a lumbar spine condition. The Board finds there is enough favorable evidence on the subject of etiology that when resolving reasonable doubt in the Veteran's favor, service connection is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Moreover, in regard to the issue of service connection for leg pain, there have been numerous clinical outpatient findings of radiating pain to the lower extremities associated with the Veteran's lower back disability. The Board will again apply VA's benefit-of-the-doubt doctrine and find that the Veteran in all likelihood has a distinct neurological impairment of sciatic nerve affection of the lower extremities, as this closely fits the description of symptomatology experienced, rather than being suggestive of just a random-type bilateral leg pain, or otherwise one for which no concrete diagnosis could be made. Supporting this conclusion is a May 2012 VA outpatient record indicating an assessment of "sciatica." (The Board notes on this point that the VA Rating Schedule likewise permits assignment of compensation for sciatic nerve impairment that is wholly sensory, without motor or mental impairment.) Thus, service connection for leg pain associated with the low back disability is recognized. The determination of the appropriate disability rating for sciatic nerve impairment may be determined upon the RO's implementation of this decision. ORDER Service connection for a low back disorder (claimed as back pain), secondary to a service-connected ventral hernia, is granted. Service connection is also granted for leg pain associated with the low back disorder. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs