Citation Nr: 1322589 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 10-47 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a lumbar strain. 2. Entitlement to service connection for right shoulder tendinitis. 3. Entitlement to service connection for a cervical strain. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from September 1956 to September 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In February 2012, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. In January 2013, the Veteran submitted additional evidence followed by a waiver of review by the AOJ, dated in March 2013. In April 2013, the Board obtained a VA medical expert opinion pursuant to 38 C.F.R. § 20.901 (VHA opinion) addressing the medical questions at issue. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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). FINDINGS OF FACT 1. The Veteran experienced continuity of back, neck and right shoulder symptoms since his injury in service. 2. The medical opinion evidence of record shows that the Veteran is diagnosed with a lumbar strain, right shoulder tendinitis, a cervical strain, and degenerative changes of the cervical and lumbar spines, which are all related to an injury that occurred during the Veteran's military service. CONCLUSIONS OF LAW 1. A lumbar strain with degenerative changes was incurred in active service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.303 (2012). 2. Right shoulder tendinitis was incurred in active service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.303 (2012). 3. A cervical strain with degenerative changes was incurred in active service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board grants the Veteran's claims for service connection. This award represents a complete grant of the benefits sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. II. Service Connection The Veteran contends that he has low back, cervical spine, and right shoulder disorders that are all linked to a single injury in service. For the reasons explained below, the Board agrees and the claims are granted herein. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303, 3.304. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 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. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, service treatment records are unavailable as they were destroyed in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. A formal finding of unavailability of service treatment records and service personnel records has been made and the Veteran has been advised of the same. In such cases, there is a heightened duty to assist the Veteran in the development of the case, and a heightened obligation to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 362, 367 (1991). The Veteran reports that he sustained a fall in service, in 1958, when he and a fellow service member were carrying a heavy steel truss beam. The other service member dropped his end of the beam and the Veteran took the remaining weight and was knocked to the ground with the beam falling on top of him injuring his back, neck, and right shoulder. He reports that following the injury, he was treated with heat therapy and placed on light duty for about a year, until he left service. Transcript [T.] page 5. A buddy statement confirms his reports of the injury in service. Fellow service member, H.B., remembered the event in question as well as the Veteran undergoing heat therapy for his back and being placed on light duty. See letter from H.B. The Veteran has also submitted proof that H.B. served in his unit while in service. See January 2013 Informal Hearing Presentation. Another service member, C.G., has also submitted a statement indicating that he remembers the Veteran being placed on light duty during service, following a fall. The Veteran is competent to report the circumstances of the fall in service as this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Similarly, his fellow service members, H.B. and C.G., are competent to report their observations of the Veteran's fall and observations of the Veteran's treatment as well as complaints of pain as this requires only personal knowledge as it comes to them through their senses. Id. The Board finds the Veteran's statement as well as the reports of H.B. and C.G. to be competent and credible in the absence of evidence to the contrary. Based on these credible reports as well as the heightened obligation to consider carefully the benefit of the doubt rule in cases where service records were destroyed while in the care of the government, the Board accepts as fact that the injury in service occurred. Shedden element (2), an in-service incurrence, has been met. Regarding Shedden element (1), current diagnoses, there is no dispute that the Veteran has current neck, back and right shoulder diagnoses. Regarding the neck disorder, a December 1999 private X-ray noted degenerative changes in the cervical spine. Additionally, private physical therapy records dated in March 2000 include diagnoses of arthritic degeneration of facets of the entire cervical spine and faulty cervical arthrokinematics most likely degenerative. A November 2003 private X-ray noted arthritic degeneration of facets of the entire cervical spine. Further, January 2010 VA cervical spine X-rays revealed an impression of degenerative cervical spondylosis with accentuated lordosis. Regarding the right shoulder, the January 2010 VA examiner diagnosed tendinitis of the right shoulder. Regarding the back disorder, a January 2010 VA spine X-ray resulted in impressions of scoliosis of the thoracolumbar spine with associated degenerative changes, right upper quadrant calcification, indeterminate, and Grade I retrolisthesis of L2 on 3. Additionally, the January 2010 VA examiner diagnosed cervical and lumbar strains. Regarding Shedden element (3), a relationship between the in-service occurrence and the current disorders, the Veteran offered sworn testimony that he has experienced continuity of back, neck, and right shoulder symptoms, since the injury in service. Transcript [T.] page 13. See January 2010 VA examination report and February 2012 Board Hearing Transcript p. 13. As discussed below, the April 2013 VHA physician opined that if the Board finds the Veteran's reports of continuity of symptomatology to be credible, then it is more likely than not that the disorders on appeal are related to service. Further, regarding continuity of symptomatology, the Veteran reported that following service discharge, he worked as a carpenter as well as a manager in the construction business. See Veteran's December 2008 statement. He reports that after a few days of working as a carpenter, his back and neck began to give him problems. He sought medical treatment shortly following service but reports that the records are not available. However, the Veteran submitted a letter from a nurse who worked for the practice where the Veteran was treated shortly following service, indicating that she remembers he was treated for back pain during the period prior to 1961. See December 2010 letter from R.W. He has also submitted check stubs to demonstrate that he was subsequently treated for his back, neck and right shoulder disorders in 1969-70. He also reported that he became self-employed so that he could work around his neck, back, and shoulder ailments. See Veteran's December 2008 statement. He further reported that he went to art school because he thought it would cause less stress on his back. T. page 6. Regarding the neck and back disorders, the Veteran's mother submitted a statement reporting that the Veteran lived with her for one year following service. She noted that he told her about his injury in service at that time and that he sought medical treatment for his back during the time in which he lived with her. She also observed that he had a great deal of problems with his back at the time, and missed a lot of work due to his neck and back. See November 2008 letter from E.R. The Veteran's brother submitted a letter indicating that he observed the Veteran's back and neck problems following service and that he had to drive the Veteran to doctors' appointments for the neck and back as it was too difficult for the Veteran to drive. See December 2008 letter from D.R. Additionally, the Veteran submitted a letter from a fellow service member, N.S., who remembered the Veteran's complaints of an injury in service as well as the Veteran's post-service complaints of back pain. Regarding the onset of right shoulder symptoms, the Veteran reported to the January 2010 VA examiner that his symptoms began in service, in 1958. The Veteran's wife offered sworn testimony that since service, the Veteran never worked a full week because he never felt good. T. page 7. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran is competent to report continuous neck, back and right shoulder symptoms since service as this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Similarly, his family members are competent to report their observations of the Veteran's complaints of pain and need to assist the Veteran with things such as driving, as this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the competent reports of record regarding observations of the Veteran's continuity of symptomatology are also credible, particularly in light of supporting evidence from the treating nurse and check stubs for treatment dated close in time to his separation from service. The April 2013 VA physician opined that if the Veteran had continuity of back, neck, and right shoulder symptomatology since service, that the current "back, neck, and shoulder problems" are more likely than not related to service. The opinion rendered was based on consideration of the injury in service, the Veteran's lay statements concerning the onset of symptoms and symptoms experienced since service, and consideration of intervening events including cancer treatment and two motor vehicle accidents. The examiner reasoned that any continuous neck, back, and right shoulder symptoms since service supported a finding that they were not caused by the intervening cancer treatment and motor vehicle accidents because they were present before the intervening events. As discussed above, the Board finds that the Veteran had continuous back, neck and right shoulder symptomatology since service. As such, the VHA physician's positive nexus opinion applies. There is no competent medical evidence to the contrary. In fact, there is another supporting private opinion dated in December 2011 regarding the Veteran's neck disorder that indicates that the Veteran's fall in service is one of the contributing factors of his neck problems. The Board notes that the January 2010 VA examination report does not weigh against the claim as a nexus opinion was not rendered. Accordingly, the Board finds that service connection for a lumbar strain with degenerative changes, right shoulder tendinitis, and a cervical strain with degenerative changes is warranted. ORDER Service connection for a lumbar strain with degenerative changes, is granted. Service connection for right shoulder tendinitis, is granted. Service connection for a cervical strain with degenerative changes, is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs