Citation Nr: 1322092	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  06-18 854	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for arthritis of the back and legs with radiating pain, to include as due to service-connected residuals of penetrating fragment wounds and service-connected traumatic pericarditis.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

The Veteran had active service in the United States Army from July 1966 to September 1968, to include combat duty in Vietnam.  He was awarded a Purple Heart for his service.  

This matter comes before the Board of Veterans' Appeals (Board) from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  Jurisdiction of the claims file was subsequently transferred to the RO in Houston, Texas.  The claim was previously remanded in November 2010, March 2012, and January 2013 for evidentiary development.  

The Veteran appeared at a Videoconference hearing in October 2010.  A transcript is of record.  


FINDING OF FACT

Resolving all doubt in the Veteran's favor, degenerative joint disease and degenerative disc disease with radiculopathy is as least as likely as not related to active service.  


CONCLUSION OF LAW

Degenerative joint disease and degenerative disc disease with radiculopathy was incurred in active duty service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).  



REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants entitlement to service connection for degenerative joint disease and degenerative disc disease with radiculopathy.  As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), is necessary.  

Service connection will 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 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

Establishing service connection generally requires competent evidence of (1) a current disability; (2) 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.  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).  

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a).  In Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit held that § 3.303(b) applies only to listed chronic diseases.  Arthritis (also known as degenerative joint disease) is listed as a chronic disease.  Id.  

Service connection for chronic diseases like arthritis may be established on a presumptive basis by showing that it manifested to a degree of 10 percent or more within one year from the date of separation from service, or in service and at any time thereafter.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a) (2012).  

Additionally, a presumption is afforded a veteran if he or she is shown to have engaged in combat with the enemy in active service.  38 U.S.C.A. § 1154(b) (2012).  If combat is shown, VA shall grant service connection for any disease or injury alleged to have been incurred in or aggravated by service as long as there is satisfactory lay or other evidence of service incurrence or aggravation and the injury or disease is consistent with the circumstances, conditions, or hardships of service.  Id.  Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary.  Id.  The Federal Circuit has held that, while § 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected, it does considerably lighten the burden on the veteran who seeks benefits for an allegedly service-connected disease or injury and who alleges that the disease or injury was incurred in, or aggravated by, combat service.  Collette v. Brown, 82 F.3d 389, 392 (1996).  

In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2012).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).  When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  See, 38 U.S.C.A. § 5107(b) (West 2002).  It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent with the facts shown in every case.  38 C.F.R. § 3.102 (2012).  

The Board must assess the competence and credibility of the Veteran.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under 38 C.F.R. § 3.159(a)(2) (2013), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  Id.  In determining whether evidence is credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza, 7 Vet. App. 498.  

The Veteran essentially contends that he has a back disability that was either incurred in service or was aggravated by his service-connected pericarditis (see December 2011 and January 2006 statements).  

The service treatment records show the Veteran complained of back pain several times in service before he was injured in a rocket attack.  In May 1967 and in February 1968, the Veteran complained of back pain; the February 1968 record states it was severe pain with radiation.  The Veteran had been doing a lot of lifting and had muscle spasms.  The impression was low back strain.  Later that month the Veteran was seen again; his back pain improved and the impression was back pain of musculoskeletal origin.  

In March 1968, the Veteran was injured in a rocket attack.  While he was still on active duty, records show he was treated at the former Wadsworth VA hospital.  An April 1968 history and physical examination showed he received shrapnel injuries to the arm, chest, stomach, and had a tooth knocked out.  The records states: "Post op course: pt 'couldn't walk' for two days."  No injuries other than the combat wounds were noted.  He had no musculoskeletal aches, weakness, muscle, joint pain or bone pain.  It was noted his spine was straight and cranial nerves and deep tendon reflexes were intact.  He was later transferred to Ft. Ord Army Hospital with minimal chest pain.  

At the separation examination in September 1968, a report of medical examination noted scars on the abdomen and "left side."  He also had suffered a severed part of the fourth finger on the left hand prior to the rocket attack.  The history noted multiple wounds in Vietnam.  On the report of medical history, he complained of swollen or painful joints and recurrent back pain.  

Months later, in December 1968, a VA X-ray of the lumbar spine showed normal alignment, no significant abnormalities, no arthritis, and no degenerative disc disease.  There was a row of metallic sutures in the midline representing previous surgery.  A VA examination report from the same month showed that no service treatment records were reviewed.  The Veteran complained of pain in the legs.  This report mostly described his finger amputation.  There were no scars on the Veteran's back.  The Veteran told the examiner the medical officers told him he had small metal pieces in his left thigh and back.  As a result, he was given X-rays.  A chest X-ray showed that there was a foreign body 1 by 1/2 centimeter just below the left diaphragm.  (This foreign body is routinely mentioned on diagnostic tests over the years and into the present time.)  

The evidence shows that the Veteran continued to report back pain to providers, including to VA, over the years since service.  A January 1974 VA record shows the Veteran stated, "The metal in my back really pulls when I try to run or walk a long distance also."  In June 1986, a VA review of systems showed that back, arthritis or musculoskeletal pain was reported as abnormal.  In April 1994 at a VA examination, the Veteran complained of various pains in body due to combat trauma.  The Veteran complained of left side pain and back pain when sitting or standing for a long time.  At a September 2000 appointment, the Veteran complained of low back pain which he claimed was due to his shrapnel wounds.  

In reviewing the evidence, the Board also found evidence of intervening events that may have impacted the back and legs since service.  An August 1994 police report in the file states that the Veteran was attacked and robbed while driving his cab; he suffered numerous hits to the body and the report noted he was going to seek his own medical care for possible injuries.  In his April 1995 statement regarding a total disability rating for individual unemployability (TDIU) claim, the Veteran said that after service he was twice injured in the back.  He said in 1980 he injured his back while lifting a five hundred pound dryer out of a basement.  In 1981, he sustained another back injury, this one more intense.  Since 1991, he worked as a cab driver but went part time due to the physical demand and stress.  He also mentioned being mugged in 1994 (see police report).  Finally, an October 2002 VA physician's assistant record showed the Veteran reported having an accident two weeks prior driving a truck and current low back pain.  A physical examination showed no gross deformity, with tender right paraspinal muscles.  The assessment was low back pain.  

For all the complaints of low back pain, the record also contains normal and negative objective findings over the years.  A November 1994 VA general medical examination noted that the shrapnel wound scar was well-healed and the rest of the examination was negative.  In September 1997, the Veteran saw Dr. R. and a review of systems for back showed no deformities of spine, tenderness or muscle spasm.  At the June 2003 VA Agent Orange examination, the Veteran complained of joint pain and stiffness.  A lumbar back examination was totally normal.  A June 2006 VA internal medicine examination showed posture and gait were normal.  There was no exit wound or sign of bone, joint, tendon or nerve damage.  A neurological examination was also normal.  An August 2008 VA primary care assessment found no true radiculopathy.  

Abnormal findings, however, for the back and legs were present by the late 1990s; in June 1998, a VA X-ray showed mild facet arthrosis at L5-S1, otherwise negative.  In October 2000, a VA X-ray showed thoracic scoliosis noted on a chest X-ray.  A September 2002 spine X-ray showed no evidence of significant degenerative or acute spine osseous disease.  In October 2002, a VA orthopedic record showed the Veteran complained of knee pain aggravated by prolonged walking and squatting, accompanied by back pain.  Pain radiated from the right knee to the back.  He was noted to have mild scoliosis.  X-rays showed very mild degenerative joint disease.  The assessment was back and knee pain of uncertain etiology without sciatica, aggravated by hip motions.  In May 2006, a MRI showed L5-S1 disk degenerative joint disease, disk bulging without foraminal or central stenosis.  

Regarding the legs and radiating pain, a March 2009 VA examination report for service-connected diabetes mellitus showed a diagnosis of peripheral neuropathy of bilateral lower extremities; the Veteran is now service-connected for that peripheral neuropathy.  A September 2010 record from Dr. B. noted symptoms of radiculopathy and spinal stenosis.  

Although the Veteran received several VA examinations, no examiner has appropriately reviewed the file and cited to accurate facts in providing an opinion for this case.  The August 2009 VA examination report stated that the service treatment records showed no treatment for a low back disorder in the service and stated that the first note of any back disorder was in 2002, which was many years after the release from active duty.  This is not correct.  The December 2010 VA examination report essentially repeated this statement, as did the March 2012 VA examination report.  The March 2012 report also stated there were "limited service records," that there were no complaints of a back or leg disorder in service, and that no entrance or exit physicals were available.  These statements were incorrect.  The most recent VA opinion from February 2013 parrots the 2012 opinion and was completely unresponsive to the last remand.  

The United States Court of Appeals for Veterans Claims has stated: "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009).  Although the Board repeatedly directed examiners to note the complaints of back pain before 2002, they continually failed to do so.  

Meanwhile, in May 2013 the Veteran submitted a record from a certified physician's assistant (PA).  This record noted that the Veteran had lumbar radiculopathy.  The PA stated that the longstanding history of his back injury was discussed.  The Veteran told the PA that he had an injury in service that affected his back.  The PA stated: "He has paperwork with multiple complaints of pain from his service years and I think it is very reasonable that this started at that time and has progressively gotten worse since those original injuries."  

The Veteran is competent to report that he fell on his back in combat and such a statement is corroborated by the service treatment records.  See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.159(a)(2) (2012).  It follows that the Board finds the Veteran to be credible as to his assertion of an injury in service as what he asserts is plausible and consistent with other evidence.  Caluza, 7 Vet. App. 498.  

The evidence shows Veteran has a current disability of degenerative disc disease and degenerative joint disease with radiculopathy; the first element of the claim is met.  Shedden, 381 F.3d at 1167.  The service treatment records, the Veteran's credible statements, and many post-service medical records also confirm and corroborate the Veteran had an in-service injury to the back.  The service treatment records also show back complaints prior to that injury.  The second element of in-service injury incurrence is also met.  Id.  

The final element is the nexus requirement.  Id.  Despite attempts by VA to determine its cause, the etiology of the back disability with radiculopathy is not completely clear.  The Board asked multiple times for a clear and rational opinion from a VA examiner and every time the examiners thwarted efficacious review by not reading the remand and including incorrect facts in giving the opinion.  (See August 2009, December 2010, March 2012 and February 2013 VA examination reports.)  The Board is left with no choice but to rely on the May 2013 opinion, which, although brief, does not include citation to inaccuracies and at the very least puts the case in equipoise.  

Resolving doubt in the Veteran's favor, the Board finds service connection for degenerative joint disease and degenerative disc disease with radiculopathy.  In addition to the positive private opinion, the Board has also considered 38 U.S.C.A. § 1154(b) and the Veteran's credible statements.  As explained, the Board also finds there is plenty of evidence to support continuity of symptomatology for the diagnosed degenerative joint disease in this case.  See Walker, 708 F.3d at 1337.  Discussion of the secondary service connection theory under § 3.310/Allen or the chronic disease presumption under 38 C.F.R. §§ 3.303, 3.307, 3.309 is not necessary here.  

As the benefit of the doubt rule is for application, degenerative joint disease and degenerative disc disease with radiculopathy; service connection is warranted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  




ORDER

Service connection for degenerative joint disease and degenerative disc disease with radiculopathy is granted.  



____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs