Citation Nr: 1320446 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 08-12 383 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a low back disability, including secondary to service-connected bilateral metatarsalgia. 2. Entitlement to service connection for a neck disability, including secondary to service-connected bilateral metatarsalgia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from April 1965 to January 1967 and from November 1993 to July 1994. The Veteran also had unspecified periods of active and inactive duty for training in the Army Reserve and the Army National Guard from January 1967 to September 2002. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2007 decision by the RO which denied the benefits sought on appeal. The Board remanded the appeal for additional development in August 2011. FINDING OF FACT A low back or neck disability was not present in active service or until many years thereafter, and there is no competent medical evidence that any current low back or neck disability is related to service or causally or etiologically related to, or aggravated by the service-connected bilateral foot disability. CONCLUSIONS OF LAW 1. The Veteran does not have a low back disability due to disease or injury which was incurred in or aggravated by military service, arthritis may not be so presumed, nor is any current low back disability proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 101(24), 1110, 1154(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.310 (2012). 2. The Veteran does not have a neck disability due to disease or injury which was incurred in or aggravated by military service, nor is any current neck disability proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 101(24), 1110, 1154(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in October 2006. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. All available service treatment records (STRs) and VA medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's VA electronic medical records. The Veteran was examined by VA during the pendency of this appeal and was afforded an opportunity for a personal hearing, but declined. Transcripts of several hearings at the RO are of record. The Board finds that the September 2001 VA examination and the October 2012 medical opinion were comprehensive in scope, included a discussion and analysis of the Veteran's medical history and current findings, and are adequate to render a fair and impartial decision on the merits of the claims. Additionally, the appeal was remanded for additional development of the record in August 2011. The remand directives included obtaining all available STRs for the Veteran's Reserve and National Guard service, and his active service from November 1993 to July 1994, his service personnel records, all VA treatment records from 2009 to the present, and for a VA examination to determine whether the Veteran's current neck and low back disabilities were due to service or his service-connected bilateral foot disability. In this case, the Appeals Management Center (AMC) obtained the Veteran's personnel records, and associated all VA treatment records from 2009 to 2012 with the claims file and with the virtual VA record keeping system. The Veteran was examined by VA in September 2011 in compliance with the remand directives, and the claims file was referred to a doctor of podiatric medicine for an opinion October 2012. The AMC also undertook exhaustive efforts to obtain the Veteran's Reserve and National Guard STRs and for his active service in 1993/94, to include contacting the State Adjutant General's Office, his National Guard unit, and the National Personnel Records Center (NPRC). However, other than an October 1993 periodic examination report, no additional STRs could be located. In November 2009 and September 2012, the AMC made formal findings that the Veteran's STRs for his National Guard, active service and active reserve service were unavailable, and notified the Veteran of the same in supplemental statements of the case (SSOC) promulgated in December 2009 and October 2012. Considering the aforementioned, the Board concludes that the RO and AMC's actions constitute a "reasonably exhaustive search" of all available options and that any further development would not yield any probative evidence favorable to the Veteran. See Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992). Furthermore, the Board notes that the Veteran testified that he never sought medical attention for any low back or neck problems in service, including during his Reserve and National Guard service. As the missing STRs would not include any probative information concerning the issues on appeal, there is no basis for any further pursuit of the STRs. In light of the foregoing, the Board finds that the AMC has substantially complied with the August 2011 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection - In General Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection also may be granted for a disability that is proximately due to or the result of a service-connected condition. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a) (2012). Also, when aggravation of a disease or injury for which service connection has not been granted is proximately due to, or the result of, a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and arthritis is manifest to a compensable degree within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (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. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay 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 professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Because of the Veteran's lengthy association with the Army Reserve, it is important to note that a "veteran" is a person who served in the "active military, naval, or air service" and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2), (24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c). INACDUTRA includes duty (other than full-time duty) prescribed for Reserves. 38 C.F.R. § 3.6(d). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). In order to establish basic eligibility for veterans' benefits based upon active duty for training, the appellant must first establish that he was disabled from a disease or injury incurred or aggravated in the line of duty. See Laruan v. West, 11 Vet. App. 80,84-86 (1998) (rev'd on other grounds, D'Amico v. West, 12 Vet. App. 264 (1999)); see also Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Factual Background & Analysis Initially, it should be noted that the Board has thoroughly reviewed all the evidence in the Veteran's claims files. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veteran contends that his current low back and neck disabilities are due to an altered gait from favoring his service-connected bilateral metatarsalgia, and believes that service connection should be granted secondary to the service-connected bilateral foot disability. In the alternative, the Veteran argues that his low back and neck disabilities were due to excessive wear and tear on his body from the physical demands of his active and Reserve/National Guard service. At a DRO hearing in August 2008, the Veteran testified that he had an altered gait due to his bilateral foot disability since 1965, and has had low back problems off and on since 1975. He also recalled having neck pain while wearing his Kevlar helmet in 2001, and said that he first sought medical attention for his neck in 2004 or 2005. The Veteran testified that he did not seek medical attention for any low back or neck problems while on active service or during his Reserve and National Guard service. He testified that he was told "verbally" by various doctors and chiropractors that his neck and back problems were related to his bilateral foot disability, but that he never received a written note to that effect from any of them. Regarding his assertion that various healthcare providers have related his current low back and neck disabilities to his service-connected foot disability, the Board notes that despite several requests to provide VA with the names and addresses of all medical care providers who have treated him for neck and low back problems, he has not submitted any specific information or authorization to obtain any pertinent medical records. Without the Veteran's cooperation, VA is unable to obtain the alleged favorable reports, and must base its decision on the evidence currently of record. As to the Veteran's assertion that he has had an altered gait since 1965, and intermittent low back pain and sciatica into the lower extremities since the late 1970's or early 1980's, the Board notes that not only was there no mention of an altered gait, back pain or sciatica in any of the available STRs or VA treatment reports prior to 2004, but the medical reports of record showed that his posture and gait were normal on numerous occasions subsequent to his discharge from military service in 2001, including as recently as July 2011. (See VA neurology outpatient note). The Board also notes that on a Report of Medical History for a periodic service examination in October 1993, the Veteran specifically denied any history of recurrent back pain, lameness, arthritis, or painful joint, and no pertinent abnormalities were noted on examination at that time. In 1996, the Veteran confirmed that there had been no changes to his medical status. In this case, the Veteran does not claim, nor do the available STRs show that he suffered a specific injury or trauma to his lower back or neck while on active duty or during his Reserve or National Guard service. Although the Veteran has been treated by VA for various maladies on numerous occasions since 1973, including many detailed encounters for his service-connected foot disability, he made no mention of any low back problems until July 2004. In September 2003, a clinician noted the Veteran's reports of running two miles, three times per week and swimming 500 yards twice per week. The first complaint of a neck problem was in December 2003. A VA X-ray report at that time noted a history of neck pain for more than one year. The impression was degenerative changes of the cervical spine without evidence of an acute injury. When first seen for low back in July 2004, the Veteran reported a history of low back pain for three weeks. In August 2004, he reported a history of low back pain for several months, and denied any history of injury or trauma. The Veteran reported that he worked as a recreational sports manager and was very active. The impression included history of arthritis and suspect muscle sprain/degenerative joint disease. When seen by VA physical therapy in October 2004, the Veteran's gait and posture were normal, and he made no mention of any neck problems. A VA MRI in September 2006, revealed multilevel degenerative disease of the lumbosacral spine causing spinal stenosis and neural foraminal narrowing. X-ray studies at that time showed moderate lower lumbar degenerative changes. In August 2011, the Board remanded the appeal for a VA examination to determine the nature and etiology of his current low back and neck problems, to include whether any identified disability was due to or aggravated by the Veteran's service-connected bilateral foot disability. When examined by VA in September 2011, the examiner indicated that the claims file was reviewed and included a description of the Veteran's complaints, medical history and the findings on examination. The Veteran reported that he developed intermittent lower extremity sciatica in the late 1970's or early 1980's. He reported some neck pain while carrying heavy gear during a training exercise in 2001, and intermittent neck pain since then that improved with exercise and chiropractic treatment. The Veteran stated that he believed that his current neck and low back problems were related to an altered gait due to his service-connected bilateral foot disability. The diagnoses include osteoarthritis of the lumbosacral and cervical spine. The examiner noted that there was no evidence of a low back or neck injury or treatment in any of the available STRs, and no evidence of any neck problems until 2003, or back problems until 2004. The examiner opined that it was less likely than not that the Veteran's current low back and neck disabilities were related to service, and were not aggravated by his service-connected bilateral foot disability. In October 2012, the AMC referred the claims file to a doctor of podiatric medicine for a medical opinion. The examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints and medical history. After reviewing the evidentiary record, the examiner opined that it was less likely than not that the Veteran's current low back and cervical spine disabilities were related to service, and was not aggravated by his service-connected metatarsalgia of the feet. The examiner noted that while the STRs and VA treatment records showed the Veteran was treated for chronic foot problems on numerous occasions since the mid-1960's, he was never shown to have any gait or posture problems or abnormalities. The examiner indicated that the degenerative changes in the Veteran's lumbosacral and cervical spine were consistent with a non-inflammatory arthritis, i.e., osteoarthritis, which is a progressing, naturally occurring process of bone erosion and joint surfaces degeneration. The examiner opined that the Veteran's current low back and cervical spine disabilities were due to the natural aging process and progressive degenerative disease. The examiner commented that while an abnormal gait could arguably aggravate the lower back, there was no evidence of any gait disturbance in any of the STRs or VA treatment records. Therefore, it was less likely than not that the Veteran's current low back and cervical spine disabilities were proximately due to or aggravated by his service-connected bilateral foot disability. In this case, the Board finds the VA medical opinions, particularly the October 2012 opinion, persuasive as it was based on a thorough review of the record and included a detailed discussion of all relevant facts. The examiner offered rational and plausible explanation for concluding that the Veteran's current low back and neck disabilities were not related to service, and were not proximately due to or aggravated by his service-connected bilateral foot disability. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Furthermore, the Veteran has not presented any competent medical evidence to rebut this opinion. Thus, the most probative evidence of record consists of the October 2012 medical opinion. 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, and consistency with other evidence submitted on behalf of the Veteran. Caluza, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board emphasizes that personal interest to receive benefits may affect the credibility of the evidence. Cartright, 2 Vet. App. at 25 (1991). In this case, the Board does not find the Veteran to be a reliable historian, and that his contentions of chronic low back problems since 1975, and neck problems since 2001 are not credible, and accords them no probative value. The Veteran is likewise not shown to have any medical expertise, and therefore any medical conclusions he offers are of no probative value. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The decision then must be based on the documented medical record, which as described above, fails to support the conclusion that any current low back or neck disability is related to service or is proximately due to or aggravated by his service-connected bilateral metatarsalgia. As there is no probative evidence showing a low back or neck disability in service or arthritis within one year of discharge from service, and no persuasive evidence of record suggesting a connection between the Veteran's current low back and neck disability and service or his service-connected metatarsalgia, the Board finds no basis for a favorable disposition of the Veteran's claim. Accordingly, service connection for a low back and neck disability is denied. In reaching its conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting service connection for a back disability. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. ORDER Service connection for a low back disability, to include as secondary to service-connected bilateral metatarsalgia is denied. Service connection for a neck disability, to include as secondary to service-connected bilateral metatarsalgia is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs