Citation Nr: 1325138 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 07-10 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION 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 Veteran served on active duty from January 1977 to January 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In July 2013, the Veteran testified at a personal hearing before the undersigned Veterans' Law Judge. A transcript of that hearing is of record. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, 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 Veteran's current low back disability did not have onset during active service, was not caused by any event, injury, or disease during active service, and arthritis of his low back did not manifest within one year of separation from active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 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). 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. 38 C.F.R. § 3.159(b)(1). 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). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA provided adequate notice in letters sent to the Veteran in January 2005 and March 2006. All notice other than that referred to in Dingess, was provided prior to the initial unfavorable adjudication of his claim of entitlement to service connection for a low back disability. The timing error in the notice as to the downstream elements is harmless error because the Board here denies his appeal of that issue and no disability rating or effective date will be assigned. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service and VA treatment records. He has not identified any other records relevant to his claim. Documented in VA social work notes is that the Veteran had no income and had applied for "SDI." For example November 2004, March 2005, April 2005 entries indicate that he applied for SDI but his application had been denied. A January 2006 entry documents that he applied for assistance from the California Department of Rehabilitation. "SDI" typically refers to state disability insurance or California State Disability Insurance. He has not identified any SDI records relevant to his claim of entitlement to service connection for a back disability. The record also documents that he considered applying for Social Security Administration (SSA) benefits. For example, a March 2005 note documents that he planned to either apply for "SSI" or go on a work program and that he had asked a VA social worker how to apply for SSDI. There is no indication that he actually applied for benefits administered by the SSA. During the July 2013 hearing, the undersigned asked the Veteran if any physician had informed him that his low back disability is related to the in-service injury and the Veteran referred to his service treatment records as documenting the injury and that his VA physicians "know about this." T. at 7. VA has a duty to assist the Veteran in obtaining relevant records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (explaining that VA has no duty to obtain records unless the records are relevant and that "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant"). There is no specific reason to believe that any application for SDI benefits contains relevant records and no specific reason to believe that the Veteran actually applied for benefits administered by the SSA. For these reasons, the Board concludes that the references to an application for SDI and consideration of applying for SSA benefits do not identify existing records relevant to his claim of entitlement to service connection for a low back disability. Also noted is that during the July 2013 hearing, the Veteran reported that he sought treatment for his back at the Long Beach, California VA medical facility in 1980 but medical professionals told him that he was "faking it" so he left VA and self medicated. T. at 7. The RO has obtained records of treatment at the Long Beach VAMC and those records include a request for dental eligibility in 1997, an entry that is not relevant to any claim on appeal. From this evidence, the Board concludes that all existing relevant records of VA treatment have been associated with the claims file and VA has met its duty to assist with regard to obtaining VA treatment records. VA provided an examination of the Veteran's spine in November 2011 and the examination report includes an expert opinion with regard to whether his current low back disability is related to his active service. The examination and opinion are adequate because the examiner indicated review of the relevant medical history, described the disability in detail, and supported the opinion with a rationale. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). As indicated above, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Veterans Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the July 2013 hearing, the undersigned Veterans Law Judge identified the issues on appeal. Hearing Transcript (T) at 2. The undersigned elicited detailed information as to the nature of the Veteran's low back disability. T. at 7-9. The undersigned informed the Veteran of what was lacking in this case; i.e., a nexus between the current back disability and his service; and held the record open for 30 days to give the Veteran an additional opportunity to submit evidence or information to substantiate his claim. Id. In response, the Veteran submitted copies of his service treatment records. Those records were previously associated with the claims file. As such, the Board finds that, consistent with the Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection The Veteran contends that his current low back disability was caused by a 1979 in-service injury when he was caught between a truck and a trailer. The preponderance of evidence shows that it is less likely than not that his current low back disability was caused by an injury during service, had onset during service, or that arthritis of the spine manifested within one year of separation from service. Therefore, the Board must deny the appeal as to this issue. Now the Board turns to a detailed explanation of its reasons and the bases for this determination. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.3099a) (2012). Service treatment records include a January 1979 emergency room entry that documents the Veteran's report that he was caught between a truck and a trailer and had pain of his arms and left shoulder. Medical personnel diagnosed right arm abrasion and left shoulder strain. From February 1979 through early August 1979 he sought treatment for numerous conditions but there is no documentation of treatment for back pain until the end of August 1979. That August 1979 entry documents that he had back pain of one month duration, had been previously been treated on numerous occasions for back pain, had gone to the emergency room a day earlier where they took a urine sample, and that medical personnel were waiting for a culture to grow. Assessment was possible kidney infection. A note from a day later documents his complaint of kidney and back problems. An additional note states that he had low back pain, left quadrant pain but no radicular pain. Objectively he had slight spinal tenderness at the lumbosacral region. A September 1979 request for orthopedic consult lists a history that the Veteran injured his back four months earlier when crushed by a truck and now had chronic back pain. In response, the consult report states that the Veteran was "smashed on his back by a truck" four months earlier but had no symptoms until two months later. X-rays were normal; he had stiffness, tenderness, and some loss of forward flexion but was neurologically within normal limits. Impression was low back pain, with another assessment of lumbosacral strain. Plan was physical therapy and a change in his duty for 3 days and to return in 2 weeks. Another request to the commanding officer documents that the Veteran had moderate back pain that did not require hospitalization. October 1979 medical examination and medical history reports document that he had slight pain from an old back injury and the Veteran provided a history of recurrent back pain. There are no further documented reports of back pain until 2004. Although the Veteran reported during the July 2013 hearing that prior to 2004 he was seen at the VA Long Beach facility for reported back pain, the earliest record from that facility is an October 1997 note that the Veteran requested dental eligibility. Even assuming that he did seek treatment from VA in 1980, which would have been immediately after service, his own testimony was that he was told that he was "faking it." At most his report is only that he had no documented pathology but had pain in 1980 which is not particularly different from what is shown in the September 1979 report that he had pain at that time. Assuming arguendo that he did report back pain to VA in 1980, by his own account that report adds nothing significant to the report of back pain in late 1979. In October 2004 he initially sought treatment for substance abuse. In an extensively documented VA Veterans Village Recovery Center (VVRC) admission history and physical report, he reported that he felt tremors, was anxious, had poor diet, and a sensitive stomach but was not aware of any medical problems. Physical examination of extremities and joints revealed only the presence of bony calus at the right knee. If the Veteran had the long history of back pain and had self medicated since service, as he has alleged, it does not follow that there would be no mention of back pain by him at this time. This report of other medical conditions but not back pain tends to show that his reports of back pain present since service are not credible. In early November 2004, he reported that "[i]n 1979 he sustained a serious back injury, was hospitalized in an Army hospital in Seoul Korea for 6 months and received physical therapy. Vet currently presents with significant back pain every day when getting up in the morning and after periods of being seated." As between this report and the service treatment records, the Board finds the service treatment records more probative of the treatment he received for his back symptoms during service than his current report. This is because the service treatment records were created contemporaneous to the in-service back symptoms and there is no reasonably discernible reason to find those inaccurate. In contrast, there are reasonably discernible reasons for why the reports beginning in 2004 are inaccurate. Those reasons are that the later reports were made many years after service and therefore subject to the effects of time on his memory and were made in the context of seeking monetary benefits where the existence of symptoms since service would be favorable to obtaining such benefits. The service treatment records clearly show that he had no hospitalization for his back symptoms. The Board finds that his report of hospitalization and six month treatment for his back symptoms during service is not credible. This tends to show that the Veteran is not an accurate historian. In November 2011, VA examined the Veteran's spine and obtained an expert medical opinion as to whether any current spine condition had onset during or was caused by his active service. The examiner diagnosed the Veteran's spine condition as post-operative herniated disc of the lumbar spine. Following examination, review of the claims file, and interview with the Veteran, the examiner concluded that it is less likely as not that his low back disability is related to service. The examiner provided a rationale to support this determination, stating that "[a]lthough there were 2 documented records showing lumbar spine strain, there were no x-rays done and no chronicity was noted during service or for years after." The Board finds this opinion to be the most probative evidence of record as to whether his current low back disability had onset during or was caused by his active service, including the injury involving the truck. It is recognized that the examiner stated that there were no x-rays done and no chronicity noted during service and it is recognized that the September 1979 consult report includes a note that x-rays were within normal limits and the request stated that he had chronic pain in the back. That being said, there is no radiographic report, only the very minimal notation in the consult report, and therefore a basis for why the examiner stated that there were no x-rays. Even if one argues that the examiner did not consider this short remark, the remark itself is not evidence favorable to the Veteran's claim because it states that x-rays were normal and thereby is simply additional evidence unfavorable to the claim. As to the single statement of chronic pain, that statement is too brief to be considered a finding of chronicity in service. Furthermore, given the time frames involved - several months of service from first report of back pain in August 1979 to last report in November 1979, and the twenty-four years until the next documented report of back pain, and that the Veteran is not a credible historian, the Board concludes that the examiner's statement of no chronicity during service and for years after service is accurate. Although a report of a March 2005 MRI study documents findings, such as degenerative endplate changes of L4 and L5, that may be interpreted as arthritis, there is no evidence that arthritis of his spine manifested within one year of separation from active service. Therefore service connection cannot be presumed. See 38 C.F.R. § 3.307, 3.309(a). For the reasons just discussed, the Board concludes that the preponderance of evidence is against a finding that the Veteran's current back disability had onset during or was caused by his active service. His appeal as to this issue must therefore be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disability is denied. REMAND A remand is necessary with regard to the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, so that VA can meet its duty to assist the Veteran in substantiating his claim by providing an examination and obtaining an expert opinion. Establishing service connection for PTSD requires (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012). The Veteran alleges several in-service stressors. First, the incident in which he was caught between a truck and trailer that resulted injury abrasions of his arms, shoulder strain, and later report of back pain. Second, he testified during the July 2013 hearing that during service he had not seen but had heard about U.S. military personnel killed by North Koreans and heard that a sergeant was crushed or cut in half by two U.S. tanks. T. at 3. In October 2004 treatment notes he reported that he had witnessed several deaths during his active service. The incident involving a truck is documented in his service treatment records and is described in more detail in the section of the instant document in which the Board addresses his claim of entitlement to a low back disability. VA treatment records include references to the Veteran suffering from PTSD. As such VA has a duty to provide an examination and obtain an expert opinion as to whether the Veteran has PTSD, or any other psychiatric disorder, that was caused by or is related to his active service. This must be accomplished on remand. Additionally, any records of treatment of the Veteran by VA since February 2007 must be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain any records of VA psychiatric treatment of the Veteran since February 2007 and associate any such records with the claims file. If there are no such records, then obtain a negative reply from the Long Beach, California VA Medical Center and associate that reply with the claims file. 2. Ensure that the Veteran is scheduled for a VA examination to determine the nature of any psychiatric disability and whether such disability is related to his active service. The examiner is asked to accomplish the following: (1) Identify any psychiatric disorder from which the Veteran has suffered at any time since 2004. (2) Provide an expert opinion as to whether it is at least as likely and not (at least a 50 percent probability) that any such psychiatric disorder was caused by or had onset during his active service. If the examiner diagnoses PTSD, the examiner must explain whether the PTSD is due to the event documented in the January 10, 1979 emergency room note involving the Veteran being caught between a truck and trailer. If the examiner determines that he has PTSD or any other psychiatric disorder due to some other in-service event, the examiner must identify the event. The examiner must provide a rationale for any opinion reached and that rationale must identify how the diagnosis conforms to or does not conform to the DSM-IV. 3. The RO/AMC should then accomplish any additional stressor verification development if the examination indicates that the Veteran has PTSD due to an in-service event other than the event involving the Veteran's injury when caught between a truck and trailer in 1979. 4. Then readjudicate the appeal as to entitlement to service connection for an acquired psychiatric disorder, to include PTSD. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the issue to the Board, if in order. The appellant 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs