Citation Nr: 1323296 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 05-06 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, to include as secondary to status post hysterectomy with bilateral salpingo-oophorectomy. 2. Entitlement to service connection for a right leg disorder, to include as secondary to status post hysterectomy with bilateral salpingo-oophorectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active military service from September 1978 to June 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In September 2008, September 2010 and April 2012, the Board remanded the case for additional development. With regards to the claim for service connection for a lumbar spine disability, the remand directives were substantially complied with and the claim is ready for appellate review. Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed the Veteran's Virtual VA file and finds that there are no additional relevant records contained therein. The issue of entitlement to service connection for a right hip disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for a right leg disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran currently has a lumbar spine disability related to his military service. CONCLUSION OF LAW The criteria for service connection for lumbar spine disability, including secondary to status-post hysterectomy with bilateral salpingo-oophorectomy, have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The claim initially arose as a claim to reopen a previously denied claim. In a January 2004 notice letter, the Veteran was advised of the foregoing elements of the notice requirements as it pertained to a claim to reopen a previously denied claim. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The notice letter predated the rating decision which reopened the claims. The Veteran was subsequently provided notice as to how to establish service connection both on a direct and secondary basis in letters of Match 2005, August 2006 and November 2008. While the letters did not predate the rating decision, the claim was subsequently readjudicated in supplemental statements of the case of December 2007, and November 2012. With respect to the Dingess requirements, the Veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disabilities on appeal prior to the initial rating decision; rather, notice was provided in a March 2006 letter. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the Veteran's claim for service connection for a lumbar spine disability, and any questions as to the appropriate disability rating or effective date to be assigned are moot. Accordingly, the RO effectively satisfied the notice requirements with respect to the issue on appeal, and there will be no prejudice to the Veteran from any initial deficiencies of notice. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). In this case, available service treatment records, outpatient treatment records and private medical treatment records have been obtained. The Board notes that the RO made several requests to obtain complete treatment records from the National Personnel Records Center (NPRC), however, no complete records were located. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). All identified and available private medical treatment records have been associated with the claim file. The Veteran was afforded VA examinations in October 2006, March 2009, November 2010 and May 2012. The examinations were conducted by VA examiners who had reviewed the Veteran's claims file, reviewed the history of the disabilities on appeal with the Veteran, conducted physical examinations, and included a rationale for the conclusions reached therein. While not all of the opinions in each of the examinations completely addressed the issue at hand, each opinion addressed a particular aspect of the issue. The Board therefore concludes that the examinations as a whole are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). There is no sign in the record that additional evidence relevant to the issue being addressed is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Legal Criteria and Analysis Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Arthritis is listed as a chronic disease for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). Additionally, disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, supra. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran is claiming service connection for a lumbar spine disability. She alleges that she has a current lumbar spine disability that is due to service or to the service connected status-post hysterectomy. Available service treatment records of October 1980 show the Veteran was seen for complaints of stomach and back pain. The diagnosis was deferred. A May 2005 letter from the Veteran's private physician states that she has osteoporosis linked to her having a complete hysterectomy. The Veteran was afforded a VA examination in October 2006. At the time, the Veteran complained of low back pain with an onset around 1997 with associated right leg pain. She reported low back strains in service while in boot camp from carrying heavy packs. She reported mild pain at the mid lumbar area with radiation to the right leg. The examiner noted that MRI findings showed a normal lumbar spine with bone density testing below average for age but not indicating osteoporosis. After a physical examination, she was diagnosed with lumbar strain with sciatica. The examiner opined that the lumbar strain with sciatica is less likely as not caused by or the result of injuries during military service or hysterectomy. She reasoned that the medical records do not provide any documentation of back/right leg problems prior to 1997 which is 10 years after discharge from military service. She further stated that it is less likely as not that the Veteran had an aggravation of a pre-existing low back/right leg condition; and, there is no current diagnosis of osteoporosis according to the record. The Veteran was afforded another VA examination in March 2009. At the time, the Veteran reported an onset of back problems in 1979 while in service. She reported back pain due to carrying heavy packs that resolved. The pain started again in 1981 or 1982. She stated she was prescribed medication and a back brace, and that this too resolved. She reported the pain returned in 1994 or 1995 after her hysterectomy. The examiner noted that there is a June 1999 note which shows the Veteran complained of low back pain related to a job injury. The examiner noted a bone scan was done in 2006 showing osteopenia, and a lumbar MRI of 2002 which was normal. After a physical examination, a diagnosis of lumbar strain was rendered. The examiner opined that it is less likely as not that the lumbar spine strain originated from her time in service. He noted that the Veteran herself had stated that the back pain in 1979 and 1981/82 had resolved, and that there was a record of a job related injury to the back in June 1999 after she had left service. He further opined that it is less likely than not that the hysterectomy is connected to the lumbar strain. He reasoned that while there is documented osteopenia in a bone scan, her MRI in 2002 was normal. The Veteran was afforded an additional VA examination in November 2010. At the time, she reported an onset of symptoms in 1995. After a physical examination, she was diagnosed with lumbosacral strain with bilateral facet degenerative joint disease at L5-S1 and fibromyalgia. The examiner noted that there was no radiculopathy or neuropathy found on examination despite her reports of sciatica on the right during the examination. He noted that her symptoms are out of proportion with the imaging findings. An incidental finding of osteopenia was noted. She opined that the lumbar spine condition was not permanently worsened by the service-connected status-post hysterectomy with bilateral salpingo-oophorectomy. She reasoned that the low back condition may be a combination of factors including muscular strain, as well as fibromyalgia and some degenerative joint disease. She noted there were multiple notes of low back pain including in 2001, 2002, 2006, 2008 and 2009. There were also some noted indicating a work-related injury in the 1990's. None of these conditions would be caused by bone loss from hormone deficiency. She noted the osteopenia is likely a combination of hormone deficiency, age, tobacco use, and perhaps lack of exercise and alcohol use. She also noted the Veteran has problems with Vitamin D deficiency which could have contributed to the osteopenia. She noted that the 2005 letter from the private examiner noted that while the letter stated that the osteoporosis is due to the hysterectomy, it did not state that the lumbar spine strain is due to the hysterectomy. Finally, she noted that there is no evidence showing any relationship between the osteopenia and the lumbar spine strain. The Veteran was afforded one additional VA examination in May 2012. At the time, the Veteran reported an onset of symptoms in 1995. She reported peripheral neuropathy symptoms on the right leg. After a physical examination and review of the claims file, the Veteran was diagnosed with lumbosacral strain and fibromyalgia. It was noted there was no radiculopathy/neuropathy found on examination. The examiner opined that the lumbar spine disability is not the result of service or any incident in service, and it did not have its onset in service. The examiner noted that the only mention of a back problem in service was in 1980 and the back pain was associated with abdominal pain. There is no indication that this complain would be related to the current lumbosacral strain. There are no records of back problems since then until 2001. The imaging of the low back was negative until 1998 when imaging showed degenerative changes. In 2002 the back was noted to be normal. Then in 2010, it was noted to have degenerative changes. All these findings were noted long after discharge from service. She concluded that, based on the lack of a chronic back condition during service, lack of a same diagnosis as the current one, lack of chronicity between time of discharge and 1998, the current physical examination and medical knowledge, there is no current low back disorder that is in any way related to service. After a review of the evidence as delineated above, the Board finds that the evidence is against a finding of service connection for a lumbar disability, to include as due to the service connected hysterectomy with salpingo-oophorectomy. The Veteran is competent to state that she started experiencing problems with her back in service. However, she has not alleged having an ongoing back pain since service. Indeed, quite the contrary, she has reported that her back problems in service resolved and it was not until years after separation from service that she started experiencing problems with her back again. Accordingly, the Board finds that the Veteran has not alleged a continuity of symptomatology since service. The Board finds the VA medical opinions of record, as a whole, to be the most probative evidence. The opinions were provided by VA medical doctors after having reviewed the Veteran's claims file and examined the Veteran, the examiners provided a rationale for the opinions reached. The VA examiners also supported their conclusions with factual findings. In regards to any relationship between the current lumbar strain and degenerative joint disease at L5-S1, and the service connected hysterectomy with salpingo-oophorectomy, the Board finds that the probative and competent evidence of record is against the claim. Indeed, the May 2009 VA examiner stated the lumbar spine disability was not caused by the hysterectomy and provided a rationale for the same. The November 2010 VA examiner stated that the lumbar spine disability had not been worsened by the hysterectomy with salpingo-oophorectomy. In rendering her opinion she considered the medical records, and the claim file to include the 2005 private medical opinion stating that hysterectomy caused osteoporosis. In that regard, the November 2010 VA examiner pointed out that while the private physician had related the osteoporosis to the hysterectomy, he did not relate the current lumbar spine strain or degenerative joint disease to the hysterectomy. Moreover, she opined that there was no relationship between osteoporosis and the current low back disability. A full rationale was provided for both opinions. In regards to whether the current lumbar spine disability is related to an incident in service, the April 2012 VA opinion noted the in-service complaints of back pain in 1980 and stated that there was no relationship between those complaints and the current diagnoses. Again, a full rationale was provided. The Board notes that while the Veteran has alleged that she had back problems in service, VA outpatient treatment records of September 2001 note that she reported an onset of back pain in 1997. Moreover, she reported the symptoms started after a trauma in 1997. At the October 2006 VA examination, she also reported an onset of back pain in 1997. The Board finds the Veteran's statements made during the course of seeking treatment and prior to the filing of the claim, to be more credible than the current allegations of back problems in service. Nonetheless, even assuming her statements of back pain in service to be credible, the competent evidence is against a finding of any relationship between the Veteran's complaints of pain and back problems in service related to carrying heavy packs, and the currently diagnosed lumbar spine disabilities. In this regard, the Board notes that the March 2009 VA medical opinion noted that there is no relationship. A full rationale was provided noting that the Veteran herself stated that the reported issues had resolved prior to discharge from service and that there is evidence of a post-service injury to the back. Moreover, the May 2012 VA examiner also opined there was no relationship to service and noted the normal findings related to the lumbar spine through 1998. She noted that all the abnormal findings were first noted long after discharge from service. She concluded that, based on the lack of a chronic back condition during service, lack of a same diagnosis as the current one, lack of chronicity between time of discharge and 1998, the current physical examination and medical knowledge, there is no current low back disorder that is in any way related to service. To the extent that the Veteran is alleging that her back disability is due to service and/or the service connected hysterectomy the Board recognizes that the Veteran is competent to report symptoms as they come through her sense. See Jandreau, supra. However, the issue of the etiology of a lumbar strain and degenerative joint disease of the lumbar spine requires a level of expertise that the Veteran does not have. Therefore, any opinions rendered by the Veteran as to the etiology of the currently diagnosed lumbar strain and degenerative joint disease are not considered competent evidence and are afforded little probative weight. The preponderance of the evidence is against the Veteran claim; there is no doubt to be resolved; and service connection for a lumbar spine disability is not warranted. ORDER Service connection for a lumbar spine disability, to include as due to status post hysterectomy with bilateral salpingo-oophorectomy, is denied. REMAND The Veteran seeks service connection for a right leg disability, to include as due to the service connected hysterectomy with salpingo-oophorectomy. After a careful review of the evidence of record, the Board finds that additional development is needed prior to deciding the claim. The Veteran has been afforded VA examinations in October 2006, March 2009, October 2010 and May 2012. The October 2006 VA examination included a diagnosis of sciatica associated with the right leg. The remaining VA examinations have found no right leg disability. The October 2006 VA examiner opined that the lumbar spine with sciatica was less likely caused by or a result of injuries during military service. The rationale was that the medical records do not provide any documentation of back/right leg problems prior to 1997, 10 years after discharge from service. This opinion is inadequate as it does not consider the Veteran's reports of back pain in service, and it does not address whether the sciatica was worsened or aggravated by the hysterectomy. The March 2009, October 2010 and May 2012 VA opinions do not address a right leg disability as the finding is of no disability of the right leg. The Board notes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The record contains a finding of sciatica associated with the right leg during the course of the appeal. Accordingly, the Board must decide the claim on the premise that there is a right leg disability. However, the medical evidence of record is inadequate to decide the claim as it does not contain appropriate VA medical opinions. On remand, a medical opinion must be obtained based on the existence of a right leg disability. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain a VA medical opinion from a neurologist, regarding the nature and etiology of the diagnosed sciatica of the right leg. If an examination is needed, it should be scheduled. The examiner must assume that there was a diagnosis of sciatica of the right leg during the pendency of the current appeal when providing the opinions requested below. The claims folder must be reviewed in conjunction with the examination. The examiner should answer the following questions: i) Is it at least as likely as not (a 50 percent or greater probability) that sciatica of the right leg was caused by or associated to the Veteran's reports of back pain in service due to carrying heavy backpacks. ii) Is it at least as likely as not that sciatica of the right leg was caused by or aggravated (made permanently worse) by the service-connected status-post hysterectomy with bilateral salpingo-oophorectomy? 2. To help avoid future remands, the RO/AMC must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the claims files must be reviewed to ensure that all of the foregoing requested development has been completed. Then, the claim for service connection for s right leg disorder, to include as secondary to status-post hysterectomy with bilateral salpingo-oophorectomy must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case, and an adequate time to respond. Thereafter, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs