Citation Nr: 1323800 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 08-36 529 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a claimed spinal disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served in the Army National Guard from October 1955 to October 1965 with periods of active duty for training. He was transferred to the inactive National Guard in January 1964. He achieved his status as a Veteran because he was previously awarded service connection for hearing loss and tinnitus based on his National Guard service. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the RO. The Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in March 2013. The Veteran had previously testified at hearing before a Decision Review Officer (DRO) at the RO in October 2010. 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 is not shown to have manifested complaints or findings referable to a chronic spinal disorder during any period of active duty for training or for many years thereafter. 2. The currently demonstrated chronic lumbar and cervical spine disorders are not shown to be due to an injury or other event or incident of any period of inactive or active duty for training. 3. The Veteran's assertions are not found to be credible for the purpose of establishing the presence of chronic spinal disease during any period of active duty for training or a continuity of symptomatology referable chronic spinal disease after service. CONCLUSION OF LAW The Veteran's spinal disability is not due to disease or injury that was incurred in or aggravated by a period of active duty for training or an injury that was incurred in or aggravated by inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims 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. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the Court. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in October 2006 which explained how VA could help him obtain evidence in support of his claim. The October 2006 letter also explained what the evidence needed to show in order to establish service connection for a claimed disability, as well as how VA assigns ratings and effective dates for service connected disabilities. The issue was also clarified at the March 2013 hearing and the Veteran was informed of what the evidence needed to show. VA also must make reasonable efforts to assist the claimant with 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. In connection with the current appeal, VA has of record evidence including National Guard treatment records and administrative records, private treatment records, and a transcript of the October 2010 and March 2013 hearings. The Veteran was afforded VA examinations in January 2009 and in May 2013. While the Board previously determined that the rationale that was set forth in the January 2009 examination report was inadequate, the May 2013 examination report adequately addressed the etiology of the Veteran's spine problems based on a complete examination and review of the claims file. The May 2013 examination adequately addressed the instructions set forth in the Board's April 2013 remand. Service connection The Veteran contends that he developed a disability of the lumbar and cervical spine as a result of an injury incurred during a period of annual training. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, such as arthritis of the spine and organic diseased of the nervous system such as polyneuropathy, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the context of Reserve or National Guard service, active military service is defined to include any period of active duty for training in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty for training during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24). While certain chronic diseases that are set forth in 38 C.F.R. § 3.309(a), including arthritis and polyneuropathy, are also generally subject to a presumption of in-service incurrence if manifest to a compensable degree within one year after active service, this does not apply to active duty for training and inactive duty for training. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's National Guard treatment records do not show complaints or findings referable to a chronic spine disorder. A July 1960 line of duty determination indicated that in late June 1960 while he was performing military duties loading kitchen supplies on to a two and a half ton truck, the Veteran fell and broke the middle finger on his left hand. A July 1960 treatment record indicated that the Veteran had fractured the left middle phalanx. The middle finger was splinted. There are no references to an injury involving the back or neck. An October 1962 periodic physical indicated that the Veteran's spine and musculoskeletal system were normal. In early 2004 the Veteran sought treatment for neck and shoulder pain. An April 2004 MRI showed findings of herniation of C6-7 and C5-6, spondylosis, and posterior hypertrophy. At an initial examination at an orthopedic center in October 2005, the Veteran reported having had neck and back pain on and off for about one year, ever since he fractured his ankle. In a follow up, he noted falling off his house in July 2004 and landing on both of his feet. In November 2004, the Veteran reported that, three months earlier, he fell off of his roof and injured his right foot. In April 2005, he reported having a history of low back and right leg pain. In April 2006, he noted having neck and low back pain for "several years" without a specific injury. In July 2006, the Veteran reported having low back pain off and on for eight to ten years without specific injury. The private treatment records show that the Veteran underwent an anterior cervical discectomy and fusion in June 2006. A nerve conduction study in April 2006 showed cervical radiculopathy. The major finding on a July 2006 MRI of the back was osteoarthritis. An x-ray study of the back in 2006 showed that the Veteran reported having retired from his job as a truck driver due to back pain in 2001. A January 2008 study showed severe longstanding length dependent polyneuropathy of both lower extremities. In a written statement received by VA in January 2007, the Veteran stated that he injured his back lifting 105 and 155 MM artillery rounds during service. He also reported being treated for back strain as well as a broken finger while on active duty. In his Notice of Disagreement dated in April 2007, the Veteran reported that his back pain developed as a result of constantly lifting artillery rounds for firing missions. In a handwritten entry on an undated article about fibromyalgia, the Veteran wrote that he had fibromyalgia and arthritis in every damaged part of his body. In a written statement received in September 2007, the Veteran wrote about falling off of a truck when a tarp was lifted by a gust of wind from 13 feet in the air. He wrote that he injured his finger, neck and back, but only received treatment for his finger. He felt that he had spinal cord injuries since that time but did not know it. His neck and back were noted to be painful and to possibly need another surgery. He also believed that he also sustained a traumatic brain injury in the fall. In a September 2008 written statement, the Veteran again claimed that he hurt his back and neck when he fell off a truck during service. He did not report those injuries at the time, but had had back and neck pain since then. The Veteran claimed that he sought medical attention for his back and neck about a week after the accident but received no treatment. He reported that, when he fell from the truck, he landed on his neck. In another letter, he reported that he sustained damage to his entire body while lifting an artillery shell. The Veteran was examined by VA in January 2009 and reported hurting his back and neck when he fell off a two and a half ton truck and broke his middle finger, but he never saying anything about it while in service. He claimed this occurred when he was holding a 150 pound artillery shell. The examiner noted that private treatment records documented back and neck pain after the Veteran broke his ankle in 2005. The X-ray studies of the cervical spine were noted to show that the bones were osteopenic. There was an anterior vertebral body fusion with plate fixation from C5 to C7. This appeared to be fused. The paravertebral soft tissues were normal. The X-ray studies of the lumbar spine showed degenerative changes with osteophytes in the vertebral bodies. There was minimal scoliosis, and the lumbar spine was convex to the right. There was no evidence of recent fracture or dislocation. There was some questionable narrowing of the intervertebral disk space at L5-S1. Sacroiliac joints were unremarkable. The examiner noted that this was a very unremarkable x-ray study of the spine for a 71 year old man. The Veteran did have evidence of polyneuropathy per EMG and nerve conduction studies. The examiner noted that a review of the in-service accident report stated that he Veteran fell out of a two and half ton truck, was trying to break his fall by grabbing a canvas, and broke his middle finger on the left hand. He was noted to be helping to load stoves and kitchen equipment, not artillery shells as he had claimed. There was no evidence of a chronic condition in service. The Veteran never sought any treatment for his cervical or lumbar spine until he put in for Social Security benefits and Medicare at age 65. There was nothing in the claims file indicating a chronic condition since service. It appeared that the Veteran was first seen, treated and evaluated for his neck or back in 2000. Therefore, the Veteran's spinal disorders were noted not to be related to service. The Veteran testified before a DRO in October 2010 that, as part of his National Guard duties, he had to lift heavy ammunition. He initially reported that he fell off of a truck while loading artillery shells, but then corrected himself to state that he fell while loading kitchen supplies when a tarp blew off the truck and lifted him about five feet into the air. He reported hitting the ground with his neck bent underneath his shoulders, but did not realize that he had hurt his back or neck at that time. He just thought that he had broken his finger because that was all he felt. Later, he reportedly complained to his superiors, but nothing was done about his back and neck pain. The Veteran testified at a hearing in March 2013 that he was loading a truck with food when a wind gust knocked him off of the truck and causing him to land on his neck. He held on to the tarp and broke his middle finger. The Veteran testified that, at the hospital where he was treated for his broken finger, he mentioned that his neck was hurting but they did not do anything about that. He felt that he had a broken neck for 50 years until a doctors performed surgery on the cervical spine. He testified that his back was always hurting him and had hurt for 50 years. He did not seek medical treatment until he qualified for Medicare. The Veteran was reexamined by VA in May 2013, and the examiner diagnosed degenerative disc disease of the lumbar and cervical spine, noting a C5 to 7 fusion in 2005. The examiner reviewed the claims file and VA records in conjunction with the examination of the Veteran. He opined that it was less likely than not that the Veteran's spine conditions were due to an in-service injury. The only evidence in the service treatment records is a fall from a truck in 1960 when he fractured his finger but there was no indication of back or neck injuries. The examiner added that, in 2004, the Veteran fell from a roof and fractured his right ankle and that a note in October 2005 indicated that he developed back and neck pain after he fractured his ankle. The examiner added that the Veteran worked after service without evidence of back or neck problems until 2001 when he quit due to related issues. There was noted to be no evidence of back or neck problems in service or after service until the Veteran was 65 years of age. There is no evidence that he sought medical attention after discharge in 1965 until 2000. Iniitially, the Board notes that, on two occasions, when the Veteran was examined and the evidentiary record was reviewed, VA examiners have opined that the Veteran's current spinal problems were less likely than not related to an injury or other event of his service. The opinions were based on the lack of documentation of spinal trauma in service or the showing of actual problems with the spine until many years after service. It was noted that the condition of the Veteran's lumbar spine was consistent with his age. Since arthritis and polyneuropathy are chronic diseases pursuant to 38 C.F.R. § 3.309, the Veteran may establish that a disease in related to service by evidence establishing a continuity of symptomatology. While the Veteran asserts that he injured his neck and back and developed back and neck pain after a fall in service, his statements are not found to be credible for the purpose of linking the onset of any current chronic spinal disease to an injury or other event of any period of active duty for training in this case. The Veteran's current statements in this regard are found to be inconsistent with other information provided by him in describing the onset of his back and neck manifestations. When the Veteran was treated after falling in July 1960, he is shown to have voiced complaints referable to a broken finger even though he had an incentive to report any back or neck pain so that he could receive appropriate medical treatment. Later, when examined in October 1962, his spine was noted to be normal. Then, in October 2005, more than 50 years after he served in the National Guard, the Veteran reported in connection with treatment that he had had neck and back pain for about a year, after fracturing his ankle falling off of a roof. Later, in July 2006, he reported having low back pain for eight to ten years without any preceding injury. In January and April 2007, the Veteran reported injuring his back lifting artillery shells and being treated for back strain in service. In September 2007, for the first time, he stated that his neck and back manifestations were due to the documented fall from a truck during service. In September 2008, the Veteran reported having neck and back pain and seeking treatment about one week after the fall in service. Then, in January 2009, he reported injuring his back when he fell off of a truck while loading a 150 pound artillery shell, but never seeking treatment. In October 2010, the Veteran testified that he fell while loading kitchen supplies during service. At that time, he noted not feeling any back or neck pain immediately after the fall, but believing that he had just injured his finger. In March 2013, the Veteran reported falling off a truck onto his neck while loading kitchen equipment, but having nothing done about his complaints neck and back pain. Thus, to the extent indicated, the Veteran's statements over time, cannot be found to be credible for the purpose of establishing a continuity of symptomatology referable to chronic spinal disease since service. As such, his current lay assertions are of limited probative value. The benefit of the doubt rule was considered. However, the weight of the evidence is against the Veteran's claim. ORDER Service connection for a spinal disorder is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs