Citation Nr: 1325358 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 05-03 551A ) 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 disorder. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for a disorder of the bilateral lower extremities, to include peripheral neuropathy, radiculopathy, and incomplete tetraplegia, including as secondary to cervical and lumbar spine disabilities, Agent Orange exposure, or diabetes mellitus. 4. Entitlement to service connection for a left knee disorder, to include as secondary to the service-connected residuals of a shell fragment wound to the left thigh and/or posttraumatic stress disorder. 5. Entitlement to service connection for a gastrointestinal disorder, to include as secondary to service-connected posttraumatic stress disorder and/or or Agent Orange. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to March 1971, including two tours of duty in the Republic of Vietnam from March 1968 to October 1969, and from October 1970 to March 1971, with additional service in the United States Army Reserves from March 1971 to December 1993. Pertinent evidence of record is to the effect that, based on the Veteran's service in the Republic of Vietnam, he was awarded the Purple Heart Medal and the Combat Infantryman's Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, as well as a June 2003 Hearing Officer's decision. In a decision of April 2009, the Board denied entitlement to a rating in excess of 10 percent for a service-connected scar of the left thigh. At that same time, the Board remanded for additional development all issues currently before the Board, as well as the issue of entitlement to an increased rating for service-connected tinea versicolor. In a subsequent decision of October 2010, the Board denied entitlement to an initial evaluation in excess of 30 percent for service-connected tinea versicolor during the period from May 8, 2003 to September 17, 2006. At that same time, the Board granted a 60 percent evaluation for service-connected tinea versicolor effective from September 18, 2006. Finally, the Board remanded for additional development all remaining issues currently before the Board. In December 2011 and December 2012, the Veteran's appeal was once again remanded for additional development. The case is now, once more, before the Board for appellate review. Finally, for reasons which will become apparent, the appeal as to the issues of service connection or a disorder of the bilateral lower extremities (to include peripheral neuropathy, radiculopathy, and incomplete tetraplegia), a left knee disorder, and a gastrointestinal disorder is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. A chronic disorder of the lumbar spine, including degenerative joint and/or disc disease, is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the Veteran's periods of active military service. 2. A chronic disorder of the cervical spine, including degenerative joint and/or disc disease, is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active military service. CONCLUSIONS OF LAW 1. A chronic disorder of the lumbar spine was not incurred in or aggravated by active military service, nor may osteoarthritis (degenerative joint disease) of the lumbar spine be presumed to have been so incurred. 38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 5103, 5013A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A chronic disorder of the cervical spine was not incurred in or aggravated by active military service, nor may osteoarthritis (degenerative joint disease) of the cervical spine be presumed to have been so incurred. 38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 5103, 5013A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran on numerous occasions, specifically, May and June 2003, March 2005, May and June 2009, April 2011, January 2012, and February and April 2013, of the information and evidence needed to substantiate and complete his claims, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, to include testimony presented at an RO hearing in February 2005, as well as statements by the Veteran's spouse, service treatment records, various articles, and both VA (including Virtual VA) and private treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims, and what the evidence in the claims file shows, or fails to show, with respect to those claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App.122, 128-30 (2000). Service Connection The Veteran in this case seeks entitlement to service connection for chronic disorders of the cervical and lumbar spines. In pertinent part, it is contended that the Veteran's cervical and lumbar spine disabilities had their origin during his period or periods of active military service. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any disability resulting from disease or injury incurred in or aggravated while performing active duty for training, or injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002). Finally, service connection may be granted for any disease diagnosed after discharge, when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Finally, where a Veteran served for ninety (90) days or more during a period of war, and osteoarthritis becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). In the present case, service treatment records are negative for history, complaints, or abnormal findings indicative of the presence of chronic disabilities of the cervical or lumbar spines. In that regard, at the time of a service separation examination in February 1971, the Veteran denied back trouble of any kind. A physical examination of the Veteran's neck, as well as the spine and musculoskeletal system conducted at that time was entirely within normal limits, and no pertinent diagnoses were noted. Subsequent service medical examinations conducted during the Veteran's period of service in the United States Army Reserves are similarly negative for evidence of pathology of the cervical or lumbar spine. At the time of a private medical examination in July 1977, it was noted that the veteran was being seen for a comprehensive examination "without complaint." Further noted was that, with the exception of a tendon injury to the Veteran's right ankle sustained while playing basketball, and a shrapnel wound to the left thigh in Vietnam, the Veteran's prior health history was "entirely benign." Once again, no pertinent diagnosis was noted. At the time of a subsequent VA general medical examination in August 1980, the Veteran voiced no complaints regarding his cervical or lumbar spine. A musculoskeletal evaluation conducted at that time showed no evidence of pathology of the cervical or lumbar spine, and no pertinent diagnoses were noted. The earliest clinical indication of the presence of potentially chronic lumbar spine pathology is revealed by private medical records dated in September 1987, more than 16 years following the Veteran's discharge, at which time there was noted the presence of lumbar disc disease. Cervical spine pathology was likewise first noted no earlier than December 2000, almost 30 years following the Veteran's discharge from service, at which time there were in evidence minimal degenerative changes in the area from the 2nd through the 4th cervical vertebrae following a motor vehicle accident. Significantly, on neither of those occasions was the Veteran's cervical or lumbar spine pathology in any way attributed to his period or periods of active military service. At the time of subsequent VA examinations in June 2012, it was noted that the Veteran's claims folder and medical records were available, and had been reviewed. When questioned, the Veteran indicated that he had injured his low back while in basic training, and once again injured his neck and low back when he was wounded in Vietnam. Reportedly, magnetic resonance imaging conducted in 2002 showed evidence of severe spinal stenosis in the area from the 3rd through the 5th cervical vertebrae, as well as subsequent surgeries to the cervical spine with decompression and a later fusion procedure. Following examination, the Veteran received a diagnosis of degenerative disc/joint disease of the cervical spine with accompanying radiculopathy, status post surgical interventions, which was less likely than not caused by military service. As a rationale for this opinion, it was noted that the first documentation of a cervical spine disability was "around 2002," when the Veteran began experiencing significant neck pain and radiculopathy. While the onset of the Veteran's cervical disc disease was unknown, given that the early symptoms of that pathology were not documented, in the opinion of the examiner, it was less likely than not the case that the Veteran's cervical spine pathology had its origin in military service, given that the Veteran's service was 30 years prior to the onset of his symptoms in the year 2000. Regarding the Veteran's lumbar spine, it was the opinion of the examiner that the Veteran's degenerative disc/joint disease of the lumbosacral spine with radiculopathy was less likely than not caused by his military service. This was particularly the case given the fact that no complaints of lumbosacral spine pain were documented in the Veteran's service medical records. Moreover, as of the time of the Veteran's service separation examination in February 1971, the Veteran voiced no complaints of neck or back pain. Significantly, at the time of his enlistment in the United States Army Reserves in February 1974, the Veteran once again voiced no complaints of neck or back pain. Nor did a United States Army Reserve physical examination in April 1975 show any such complaints. Following a review of the Veteran's claims folder and VA medical records in May 2013, it was the opinion of the examiner that the Veteran was suffering from tetraplegia of the cervical spine, which was thought to be the result of degenerative disc disease and cervical stenosis. Noted at the time was that exposure to Agent Orange in the military had not caused the Veteran's degenerative disc and/or joint disease of the cervical spine. Although the Veteran and his spouse gave a history of neck/back strain at the time of an inservice shell fragment wound in 1968, and subsequently throughout the Veteran's military career, the examiner could find no record of low back or neck injury or any other problem in the service medical records. Nor was there any evidence of such pathology on annual examination, at the time of the Veteran's service separation examination, or on initial compensation and pension examination in 1980. In fact, not until 2002 was there evidence of such pathology. Reportedly, the period in question included the Veteran's "lengthy successful career" as a police officer. In the opinion of the examiner, it was unlikely that any significant injury to the Veteran's back or neck would not have been mentioned during the aforementioned examinations. Under the circumstances, and in the absence of better documentation, it was less likely than not that the Veteran's low back and/or neck disabilities were related to his inservice shell fragment wound. The Board finds the aforementioned opinions of two VA examiners highly probative, because those opinions were based upon a review of the Veteran's entire claims folder, as well as other pertinent medical records, and, in the case of the June 2012 examination, a full examination, including both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file, and the thoroughness and detail of the opinion). The VA examiners reviewed the Veteran's claims folder, discussed the Veteran's medical history, provided well-reasoned medical opinions, and alluded to the evidence which supported those opinions. See Hernandez-Toyens v. West, supra. Under the circumstances, the Board is of the opinion that the probative medical evidence of record fails to establish that the Veteran's current cervical and/or lumbar spine disabilities are in any way related to his active military service. In evaluating the Veteran's claims, the Board has a duty to assess the credibility and weight to be given to the evidence of record. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In that regard, the Veteran has attributed his current cervical and lumbar spine disabilities to his active military service, to include an incident in which he sustained a shell fragment wound to the left thigh. However, not until 2003, many years following the Veteran's discharge from service, did the Veteran file a claim for service connection for those disabilities. Moreover, and as noted above, the earliest clinical indication of the presence of chronic pathology of the cervical and/or lumbar spines was at a point in time many years following the Veteran's discharge from service. Significantly, the passage of many years between discharge from service and medical documentation of a claimed disability is a factor which tends to weigh against a claim for service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In the case at hand, there is no persuasive evidence suggesting a link between the Veteran's pathology of the cervical and/or lumbar spines and his period or periods of active military service. Accordingly, the Veteran's claims for service connection must be denied. The Board acknowledges the Veteran's testimony, as well as the statements of his spouse, regarding the origin of the disabilities at issue. However, the Board rejects those assertions to the extent that they seek to etiologically relate the Veteran's current cervical and/or lumbar spine disabilities to his active military service. The Veteran's statements and history, as well as those of his wife, when weighed against the objective evidence of record, are neither credible nor of particular probative value. Moreover, the Veteran and his spouse, as lay persons, are not competent to create the requisite causal nexus for the disabilities at issue. Although lay persons are competent to provide opinions on certain medical issues [see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)], the issues currently before the Board fall outside the realm of common knowledge of a lay person. Significantly, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran (or his spouse) possess. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the aforementioned, the Board is unable to reasonably associate the Veteran's current cervical and/or lumbar spine disabilities with his period or periods of active military service. Accordingly, the Veteran's claims for service connection must be denied. ORDER Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to service connection for a cervical spine disorder is denied. REMAND In addition to the above, the Veteran in this case seeks entitlement to service connection for a disorder of the bilateral lower extremities (to include peripheral neuropathy, radiculopathy, and incomplete tetraplegia), a left knee disorder, and a gastrointestinal disorder. However, a review of the record raises some question as to the exact nature and etiology of those disabilities. In that regard, at the time of the Board's prior remand in December 2012, an opinion was requested as to whether the Veteran's current left knee disability had in any way been aggravated by his service-connected shell fragment wound to the left thigh. Additionally requested was an opinion as to whether the Veteran's gastrointestinal disability was related to service, or in some way caused or aggravated by his service-connected posttraumatic stress disorder. Significantly, while at the time of the aforementioned VA examinations in May 2013, an opinion was offered as to whether the Veteran's left knee disability was causally related to his service-connected shell fragment wound to the left thigh, no opinion was offered regarding whether the Veteran's left knee pathology was in some way aggravated by that same shell fragment wound. Nor was any opinion provided regarding whether the Veteran's gastrointestinal pathology was related to service, or in some way caused or aggravated by his service-connected posttraumatic stress disorder. Finally, while at the time of the May 2013 VA examination, an opinion was offered regarding the relationship between the Veteran's lower extremity disabilities and his period or periods of active service, no opinion was offered regarding whether the Veteran's lower extremity pathology was in some way caused or aggravated by his service-connected diabetes mellitus, a request contained in the Board's December 2012 remand. Significantly, a remand by the Board confers on the Veteran or other claimant as a matter of law the right to compliance with the remand orders. Moreover, a remand by the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to insure compliance with the terms of the remand, either personally, or as head of the Department. See Stegall v. West, 18 Vet. App. 268, 271 (1998). Under the circumstances, further development of the evidence will be undertaken prior to a final adjudication of the Veteran's remaining claims. Accordingly, in light of the aforementioned, the case is once again REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to May 2013, the date of the most recent VA examinations, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. The Veteran should then be afforded additional VA orthopedic, gastrointestinal, and neurologic examinations in order to more accurately determine the exact nature and etiology of his current left knee disability, gastrointestinal disorder, and disorder of the bilateral lower extremities. These examinations must be conducted by physician specialists who have not heretofore seen or examined the Veteran. The Veteran is hereby notified that it is his responsibility to report for the examinations in question, and to cooperate in the development of his claims. The Veteran is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the orthopedic examination, the orthopedic examiner should specifically comment as to whether the Veteran's current left knee pathology, however diagnosed, is at least as likely as not aggravated (which is to say, permanently made worse beyond natural progress) by the Veteran's service-connected residuals of a shell fragment wound to the left thigh. Following completion of the gastrointestinal examination, the gastrointestinal examiner should specifically comment as to whether the Veteran currently suffers from a chronic, clinically-identifiable gastrointestinal disorder (to include gastroesophageal reflux disease and/or irritable bowel syndrome), and, if so, whether that gastrointestinal disability is at least as likely as not caused and/or aggravated by the Veteran's service-connected posttraumatic stress disorder, or medication therefor. Following completion of the neurologic examination, the examining neurologist should specifically comment as to whether the Veteran's current neurologic disability of the lower extremities is at least as likely as not caused and/or aggravated by his service-connected diabetes mellitus. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder must be made available to and reviewed by the examiners prior to completion of the examinations. Moreover, the examiners must specify in their reports that the claims file and Virtual VA records have been reviewed. 3. The RO/AMC should then review the examination reports to ensure that they are in complete compliance with the directives of this REMAND and that the examiners have documented their consideration of all records contained in Virtual VA. If the reports are deficient in any manner, the RO/AMC must implement corrective procedures. 4. The RO/AMC should then readjudicate the Veteran's claims for service connection for a left knee disorder (to include as secondary to the service-connected residuals of a shell fragment wound to the left thigh and/or posttraumatic stress disorder), a gastrointestinal disorder (to include as secondary to service-connected posttraumatic stress disorder and/or Agent Orange), and a disorder of the bilateral lower extremities, to include peripheral neuropathy, radiculopathy, and incomplete tetraplegia (to include as secondary to Agent Orange exposure and/or diabetes mellitus). Should the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of the most recent SSOC in May 2013. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs