Citation Nr: 1325045 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 11-18 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression and adjustment disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from January 1970 until July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied service connection for back, neck, and mental health disorders. The Veteran appealed the denials of service connection in this decision, and the matter is now before the Board. The appellant testified at a hearing before the undersigned Veterans Law Judge via videoconference from Cheyenne, Wyoming, in May 2012. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not already of record. 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). The issue of service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The Veteran fell during active service. 2. Neither a back nor a neck disability manifested within one year of separation, and no such disability has been continuous since separation. 3. The Veteran does not have a back or neck disability which is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for service connection for a back disorder have not been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 1137, 1153, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). VCAA notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Veteran in July 2010, prior to the initial adjudication of the service connection claims currently on appeal. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The notice requirements of the VCAA apply to all 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. In this case in the July 2010 letter, the Veteran was provided with such notice, including the type of evidence necessary to establish a disability rating and effective dates. Based on the foregoing, timely and adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must 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); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as have records of VA treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. In disability compensation claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service (or, by analogy, to a service-connected disability), the Court has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). See also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). As discussed below, the service treatment records are silent as to any complaints or treatment of the neck or back, and on service separation examination in May 1972 the Veteran's spine and neck were normal. Furthermore, the Veteran affirmatively denied any current symptoms, or history of symptoms, related to arthritis, rheumatism, bursitis, or recurrent back pain, as well as any bone, joint, or other deformity. Moreover, post-service evidence is silent for any back or neck related references until 1998, 26 years after separation from service. Consequently, a VA examination as to the etiology of the claimed disorders is not warranted, even under the low threshold of McLendon. The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claims are also of record, including testimony provided at a May 2012 hearing before the undersigned. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of these claims have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Entitlement to Service Connection for Neck and Back Disorders Service connection may be granted for a 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). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In December 1997, X-ray imaging of the Veteran's back revealed possible hypertrophic degenerative changes - a form of arthritis. Arthritis is a "chronic disease" which is listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). For example, while a diagnosis of arthritis is nor capable of lay observation, pain and discomfort in the neck and back are symptoms which are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). Only those with specialized medical knowledge, training, or experience are competent to provide evidence on the question of diagnosis and causation. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran contends that he hurt his neck and back when he fell out of a truck while stationed at Camp Drum in New York. The Veteran does not allege that the claimed injury occurred as a result of combat against enemy forces nor does he allege that he ever had such combat. Furthermore, a review of his official military documentation contained in his claims file does not otherwise indicate that the Veteran engaged in combat against enemy forces as contemplated by VA laws and regulations. For these reasons, the Board finds that the weight of the evidence demonstrates that the Veteran did not "engage in combat" with the enemy during service; and thus, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application. The Veteran's service treatment records do not reflect any treatment or complaints referable to the neck or back. On service separation examination in May 1972 the Veteran's spine and neck were normal and the Veteran affirmatively denied any current symptoms or history of symptoms related to arthritis, rheumatism, bursitis, or recurrent back pain, as well as any bone, joint, or other deformity. In December 1997, on reports of neck and back pain, the Veteran underwent X-ray imaging of the spine at a VA facility. Imaging revealed mild relative retrolisthesis, without evidence of accompanying spondylolysis or definite degenerative narrowing of the facet joints. The reviewing radiologist commented that this finding may represent a normal variation. Also seen were minimal anterior marginal hypertrophic degenerative changes of the mid and lower lumbar spine, and no evidence of intervertebral disc narrowing or other significant findings. Imaging of the cervical spine was "virtually normal," with no evidence of significant arthritic changes or findings to suggest recent or remote fracture. On general physical evaluation at a VA facility in July 2001, the Veteran was described as having a known history of low-grade back pain, and migraine headaches which seemed to correlate with neck pain. The Veteran's neck was supple, with no adenopathy or bruits and good range of motion. There was no obvious tenderness on palpation of the cervical or thoracis spine. The assessment was of chronic back pain. A VA primary care note from the Veteran's February 2003 annual physical indicated that the Veteran neck was supple and without adenopathy or bruits. The overall assessment included chronic back pain. On physical evaluation in April 2004, the Veteran's neck was again supple and without adenopathy or bruits, and there was no notation regarding any endorsement of neck or back pain. On annual physical evaluation in October 2007, the Veteran complained of chronic back pain, which he described as pain between his shoulder blades and in the low back. In his July 2010 claim for service connection and July 2011 VA Form-9, the Veteran stated that he was treated several times for neck and back complaints during service following a fall out of a truck while conducing maneuvers either at Fort Dix, New Jersey or at Camp Drum, New York. Specifically, he stated that he was riding in the back of a truck and fell over when the truck began moving. He has also separately endorsed having fallen out of the truck entirely. In his July 2011 statement and at the May 2012 videoconference hearing before the undersigned, the Veteran also endorsed unremitting neck and back problems since the in-service incident. During his May 2012 videoconference hearing, the Veteran stated that his neck and back bothered him since service and he treated his pain with the use of aspirin. The Veteran stated that while working for a concrete contractor in 1996 or 1997, "something popped in [his] back," and he admitted that it was at that time that he first went to VA for treatment related to his neck or back. The Board finds the Veteran's endorsement of having fallen during maneuvers in-service to be competent and credible. Nonetheless, while the Veteran is competent to endorse having experienced back pain, see Layno v. Brown, 6 Vet. App. 465 (1994), as a lay person he is not competent to offer an opinion on a matter requiring medical expertise, such as providing a medical nexus opinion etiologically relating his current symptoms with service. To the extent that the Veteran has endorsed continuous symptomatology of the back, such an endorsement may be probative in substantiating the Veteran's claim in light of the 1997 assessment of possible arthritis. See, 38 C.F.R. § 3.303(b); Walker, 708 F.3d 1331. However, the Board weighs the Veteran's endorsement of continuous symptomatology against affirmative evidence to the contrary. On the annual VA physical evaluations of record, the Veteran only sporadically endorsed neck or back pain, which the Board construes as negative evidence. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7)). Further weighing against the Veteran's claim, is his own admission that he only sought treatment for the neck or back following a 1997 job-site injury. The Board finds that the Veteran's current assertions conflict directly with statements he made at service separation examination in May 1972. At that time the Veteran expressly denied any current back symptoms, current or past arthritis, rheumatism, bursitis, and recurrent back. In weighing the conflicting statements provided by the Veteran at various times, the point in time in which the statement was made is important because a recounting of an event which is closer to the time that event occurred is naturally less likely to be diluted by the shortcomings of human memory. Thus, the contemporaneousness of the statement of medical history at discharge is highly significant. In contrast, the Veteran's more recent endorsements of continuous symptoms have been made more than 30 years after separation from service, and while seeking VA benefits rather than medical treatment. The Board is of course cognizant of possible self interest which any veteran has in promoting a claim for monetary benefits. The Board may properly consider the personal interest a claimant has in his or her own case, but the Board is not free to ignore his assertion as to any matter upon which he is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). The Board finds that the weight of the evidence shows that the Veteran's neck and back pain did not manifest within one year of service, has not been continuous since service, and is not etiologically related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a back disorder is denied. Service connection for a neck disorder is denied. REMAND Service Connection for an Acquired Psychiatric Disorder, to Include Anxiety, Depression and Adjustment Disorder The Veteran is seeking service connection for an acquired psychiatric disorder. On VA examination in January 2011, the Veteran was diagnosed with a history of bipolar disease and a personality disorder, not otherwise specified. The examiner determined that a current diagnosis of a mental health condition not otherwise specified was not appropriate and thus not caused or related to the Veteran's service. In a June 2012 VA psychiatry note, the Veteran was diagnosed with a mood disorder, not otherwise specified, and bipolar disorder type II was ruled out. The evaluating VA psychiatrist stated that with regard to the Veteran's current mental health issues and their relationship to service, it was "hard to say for certain at this point," but it was recommended for the Veteran return in one month. It was also noted that it was possible that his military experiences caused or at least contributed in some way to his mental health issues but there was not enough information to say for certain at that time. The VA psychiatrist also noted that the Veteran was unwilling or unable to discuss details of his military service, and that this made evaluation additionally difficult. The Board finds that the foregoing request for the Veteran to return in one month suggests that additional medical records may exist and have not been associated with the record. In light of the June 2012 medical evidence, another VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the issue of service connection for a left hip disorder is REMANDED for the following action: 1. Associate with the claims file any relevant VA mental health treatment records created after June 15, 2012. 2. Schedule the Veteran for a VA psychiatric examination to determine the correct diagnoses for all psychiatric disabilities currently present, and, for all acquired psychiatric conditions, provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any such disability had its onset in service or is otherwise related to service. The claims folder must be made available to the examiner for review in conjunction with the examination, and the complete rationale for the opinion must be provided. 3. After completing all indicated development, the RO should readjudicate the claim in light of all the evidence of record. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran and representative and they should be afforded a reasonable opportunity response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs