Citation Nr: 1325698 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 11-05 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for an upper body disorder, including affecting the shoulder, chest, and back. REPRESENTATION Appellant represented by: Nebraska Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from June 1987 to November 1990. This appeal to the Board of Veterans' Appeals (Board/BVA) is from January and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, denied the Veteran's claim of entitlement to service connection for a thoracic strain. His claim initially was for a generic "back condition." The Board, however, is recharacterizing his claim to be more expansive in light of the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), indicating that a claimant seeking service connection for disability who has no special medical expertise is not competent to provide diagnosis requiring application of medical expertise to facts such as claimant's description of history and symptoms. VA therefore should construe a claim for service connection based on reasonable expectations of a non-expert claimant. In any event, this claim requires further development before being decided on appeal, so the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Although the Board sincerely regrets the additional delay that inevitably will result from this remand, the additional development of this claim is necessary to ensure there is a complete record upon which to decide this claim so the Veteran is afforded every possible consideration. The Veteran was involved in a motor vehicle accident in April 1989 while on active duty. His service treatment records (STRs) indicate he was treated several times later that year for back pain, including in his thoracic and columbar spine. Despite that treatment, he reported that he did not have recurrent back pain - either then presently or in the past - during his August 1990 military separation examination. His service ended a relatively short time later, in November 1990. After separation, he did not have health insurance until 1997, so for some seven more years, thus, he was unable to obtain treatment for any symptoms he may have been experiencing. See the transcript of the February 2012 hearing before a local Decision Review Officer (DRO). The Veteran testified however that his symptoms affect the entire left side of his back, including his shoulder. Id. He had VA compensation examinations in October and November 2009. At the conclusion of the October 2009 evaluation, the examiner diagnosed a thoracic strain, but he did not render an etiological opinion because he did not have the claims file to review. In November 2009, after reviewing the claims file, the examiner reaffirmed the diagnosis of a thoracic strain. He determined the strain was less likely than not caused by an event in service because: 1) the Veteran did not report it during his separation examination, so it was assumed to have been resolved, and 2) "it has been 20 years since [he] was last seen for complaints regarding his back." On the basis of this unfavorable medical nexus opinion, the RO denied the Veteran's claim. The Veteran subsequently in response submitted private medical evidence showing intermittent treatment for back, chest, and shoulder pain from 1997 to 2010. On the basis of this additional evidence, the RO requested a supplemental VA opinion in November 2010. After reviewing this additional evidence, the VA examiner noted this additional evidence only revealed treatment for a lumbar condition, not a thoracic condition as the Veteran was diagnosed with in 2009. The examiner therefore concluded that, since "there are no medical visits regarding any thoracic condition," the Veteran's "claimed thoracic strain is less likely than not due to any events in 1987-1990" - referring to the time that he was in service. Moreover, according to this examiner, "there is [a] lack of any thoracic or mid back treatments since the service for the last 20 years to show that any chronic condition has continued." On the basis of this addendum opinion, the RO again denied the claim in a January 2011 Statement of the Case (SOC). The Veteran subsequently submitted two statements from his primary care physician addressing his treatment for upper body symptoms including referable to his back, shoulder, and chest. Because of this additional evidence, the RO requested another supplemental opinion in April 2011. The VA physician again determined however that it was less likely than not the thoracic spine strain was caused by military service because of the Veteran's negative statement of any then current symptoms or disability during his separation examination and the lack of treatment for the condition after discharge. But symptoms, not instead treatment for them, are the essence of the continuity of symptomatology contemplated by 38 C.F.R. § 3.303(b), which is an alternative means of establishing chronicity (i.e., permanency) of disease or injury in service to in turn show the required linkage or nexus between current disability and that shown in service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as "chronic" under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013). A thoracic strain or upper body disability involving the type of symptoms the Veteran has complained about is not amongst the conditions listed in § 3.309(a) as chronic or permanent, per se, thus is not entitled to this pleading exception. But there still remains the possibility the Veteran has experienced continuous symptoms referable to his upper body since service on account of this claimed condition, and VA adjudicators cannot determine his lay statements concerning this lack credibility merely because they are unaccompanied by contemporaneous medical evidence, such as actual treatment records. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). His lay statements, then, can satisfy the requirement for evidence that the claimed disability may be related to his service. As such, and given his recitation of his symptoms, still additional comment is needed to assist in deciding his claim. 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit Court held in Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010), that medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service. When determining whether a VA examination and medical opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicate an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Schedule another VA compensation examination for an additional medical nexus opinion concerning the etiology of the Veteran's purported upper body disability. He is hereby advised that his failure to report for this additional VA examination, without good cause, may have adverse consequences on this pending claim since this will result in deciding this claim based on the existing evidence of record. See 38 C.F.R. § 3.655. The examination should include all necessary diagnostic testing or evaluation. The claims file, including a complete copy of this remand, must be made available for review of the pertinent medical and other history. Based on a comprehensive review of the claims file, as well as the current examination of the Veteran, the examiner is asked to indicate the likelihood (very likely, as likely as not, or unlikely) any upper body disability, whether affecting the back, shoulder, or chest, or any combination of them, is the result of the injury the Veteran sustained in the motor vehicle accident during his service, or if involving arthritis initially manifested within one year of his discharge from service, or otherwise is related or attributable to his service, including whether he has had persistent symptoms (continuity of symptomatology) since his service. Unlike the examiner that previously evaluated the Veteran, this additional VA examiner must remain mindful that it is continuous symptoms (like pain, etc.), not necessarily treatment for them, either during service or since, which is the essence of continuity of symptomatology under 38 C.F.R. § 3.303(b). So the examiner cannot conclude the Veteran was not experiencing symptoms at a particular time, including during the intervening years after his service ended up to the time of his initial treatment for this condition, post-service, merely because there is no documentation of treatment for his symptoms, such as would be reflected in actual treatment records. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board ultimately will have to assess the credibility of the Veteran's lay testimony concerning this to determine its ultimate probative value since this is a factual, not medical, determination. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, in the meantime, this additional VA examiner should consider the likelihood the upper body disability (thoracic strain) noted in service was chronic, rather than acute and transitory, so is the same upper body disability currently complained about and shown. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the file. 2. Then readjudicate this claim in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).