Citation Nr: 1326330 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 07-23 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right hand disability. 3. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from November 1982 to November 1987 and from February 2003 to April 2004. He also had periods of inactive duty training and active duty for training in the Alabama National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Montgomery, Alabama. This matter was previously before the Board in March 2011, at which time it was remanded for further development. Unfortunately, as will be discussed in the remand section below, the issues of service connection for left shoulder and right hand disabilities require further development. The issues of service connection for a right hand and left shoulder disabilities are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The Veteran did not sustain a low back injury or disease in service, nor is any claimed low back disorder causally or etiologically related to service. CONCLUSION OF LAW A low back disability not incurred in or aggravated by active service or during a period of ACDUTRA or INACDUTRA, nor may a back disability be presumed to have been incurred or aggravated during a period of active service. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1131, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Board notes that the Veteran's status has been substantiated. The Board observes that in an April 2005 letter, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). An October 2006 letter provided the Veteran with notice as to the disability rating and effective date elements of the claim. Although some of the notice letters were not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only was the Veteran afforded a meaningful opportunity to participate effectively in the processing of the claim and given ample time to respond, the RO also readjudicated the case by way of a supplemental statement of the case issued after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Furthermore, the Veteran presented detailed argument which showed he was aware of what is needed to substantiate the claim. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting in the procurement of service treatment (medical) records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records, service, VA, and private, have been obtained and associated with the claims folder insofar as possible. The Board notes that a portion of the Veteran's service treatment records are not available for review through no fault of the Veteran. As part of the prior remand, the Board requested that an attempt be made to obtain copies of all service treatment records from all periods of active duty, ACDUTRA and INACDUTRA. In a March 2011 letter, the AMC informed the Veteran that it was attempting to obtain these additional records. In February 2012, a Formal Finding of Unavailability of Records was made. The Veteran was notified of the unavailability of the records in February 2012 and indicated that he had no further treatment records in his possession. As to the necessity for a VA examination for a low back disability, the Board notes that in determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination is not warranted under 38 U.S.C.A. § 5103A(d) because there is no competent evidence that the Veteran's currently claimed low back disability is related to service, to include periods of ACDUTRA and INACDUTRA, and there is other sufficient medical evidence of record to make a decision. Moreover, the Veteran was previously informed in the VCAA letter noted above that he needed to provide medical evidence showing the disorder had existed since service. He has not done so. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, a VA medical examination is not necessary. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments set forth by and the opportunity to appear at a hearing if so desired. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to notify or assist the appellant in substantiating this claim. Service Connection for Low Back Disability 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, 1131; 38 C.F.R. § 3.303(a). 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). The Veteran's claimed back disorder, diagnosed as possible degenerative disc disease at one point, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to that disability. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such 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 for service connection. 38 C.F.R. § 3.303(b) (2012). Service connection may also 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) (2012). In addition, the law provides that, where a veteran served ninety days or more of active service, and arthritis becomes 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) (2012). 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. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a) (2012). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from "injury" incurred or aggravated while performing INACDUTRA. See 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002). National Guard service generally includes periods of ACDUTRA and/or INACDUTRA. Basically, this refers to the two weeks of annual training that each National Guardsman must perform each year or in some cases, an initial period of training. ACDUTRA includes full-time duty with the Army National Guard of any State under §§ 316, 502, 503, 504, or 505 of Title 32, or the prior corresponding provisions of law. See 38 U.S.C.A. § 101(22)(c); 38 C.F.R. § 3.6(c) (2012). INACDUTRA includes service with the Army National Guard of any State (other than full-time duty) under §§ 316, 502, 503, 504, or 505 of Title 32, or the prior corresponding provisions of law. Presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 U.S.C.A. §§ 1111 and 1131 (presumption of soundness), 3.306 (presumption of aggravation of a chronic pre-existing disease), and 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for the periods of ACDUTRA or INACDUTRA is not appropriate. In cases such as this, where a portion of the service treatment records are missing, the Board has a heightened duty to explain its findings and conclusions and to consider the benefit of the doubt rule due to the absence of possible pertinent service medical records. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Generally, when claimant's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the Veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See Id. This heightened obligation does not establish a heightened "benefit of the doubt" or lower the legal standard for proving a claim of service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996); Ussery v. Brown, 8 Vet. App. 64 (1995). The Veteran maintains that he injured his back in 1983 while at Ft. Bragg during a training exercise. Although the Veteran's service treatment records are not available for that period, the Board notes that private treatment records associated with the claims folder reveal that the Veteran was involved in a motor vehicle accident in March 1991,which resulted in muscle spasms of the lower back with no further notation of low back problems being made at that time. Available service treatment records reveal that at the time of an August 1993 Annual Reserve examination, normal findings were reported for the spine and lower extremities. On his August 1993 report of medical history, the Veteran did not report having any back problems. On an Annual Medical Certificate dated in February 1995, the Veteran checked the box indicating that he had no medical problems. While the Veteran checked the "yes" box on his November 1996 Annual Certificate when asked if he had medical problems, it was noted that he had had surgery on his right shoulder. There were no complaints of back problems listed at that time. On a November 1997 Annual Medical Certificate, the Veteran again checked the "yes" box when asked if he had medical problems, with right shoulder problems again being noted. The Veteran checked the "no" box on an October 1998 Annual Medical Certificate when asked if he had any medical problems. At the time of the an October 1998 Reserve examination, normal findings were reported for the spine and lower extremities, along with the Veteran checking the "no" box when asked if he had or had ever had recurrent back pain on his report of medical history. In an April 1999 private treatment record, the Veteran was noted to have been seen for complaints of pain in his left leg with numbness and tenderness on the outer space of the left leg. Following examination, a diagnosis of possible disk disease was rendered. However, on an October 1999 Annual Medical Certificate, the Veteran checked the "no" box when asked if he had medical problems. At the time of an April 2001 Reserve periodic examination, normal findings were again reported for the spine and lower extremities, with Veteran again checking the "no" box when asked if he had or had ever had recurrent back pain on his report of medical history. Normal findings for the spine and lower extremities were also reported at the time of a February 2002 service examination, with the Veteran again checking the "no" box on his report of medical history when asked if he had or had ever had recurrent back pain. Although the Veteran checked the "yes" box on his March 2002 Annual Medical Certificate when asked if he had medical problems, reference was made to surgery on his right foot, which no indication of back problems. On a September 2002 Annual Medical Certificate, the Veteran checked the "no" box when asked if he were having medical problems. On a January 2004 Annual Medical Certificate, the Veteran, while checking the "yes" box when asked if he had medical problems, made reference to medical problems not related to the back in the explanation portion of the report. In July 2006, the Veteran was seen with complaints of low back pain after he injured it riding a mechanical bull in Disney World. The Board finds that the weight of the competent, probative and credible evidence does not demonstrate that the Veteran had a diagnosed back disability during a period of active service, or during a period of ACDUTRA/INACDUTRA. The Board does note that the Veteran reported having injured his low back during training in 1983; however, his assertions are not supported by service treatment records which have been associated with the claims folder. While the Veteran's service treatment records from his first period are not available, the service records which have been associated with the claims folder revealed no complaints or findings of back problems. Moreover, the private treatment records making reference to possible back problems are during a periods of non-active duty with no indication of the Veteran having been on ACDUTRA or INACDUTRA status. Therefore, the weight of the evidence does not demonstrate that any condition of the back was manifested to a compensable degree within one year after discharge from active service or during a period of ACDUTRA or INACDUTRA and does not reflect continuity of symptomatology, for reasons clearly noted above, with significant evidence against such a finding. The Board, however, must also consider the lay evidence of record in determining whether there is continuity of symptoms. The Board has considered the statements of the Veteran, noting that the Veteran is considered competent to report back symptoms, because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept a veteran's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). In this case, the Board finds that the Veteran's reported history of continued symptomatology since active service, while competent, is not sufficiently credible to establish that the claimed inservice back injury had continued since that time. As noted above, the normal findings for spine along with consistent denials of back pain were reported from 1993 through 2004. These reports and findings are more probative than are his recent assertions that his current back problems are related to an inservice injury which occurred during training exercises in 1983, voiced many years after the claimed injury and in connection with a claim for disability benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). For the above reasons, continuity has not here been established, either through the clinical record or through the Veteran's own statements. As to the Veteran's belief that any low back problem is related to his period of service, the Board acknowledges the holding of the U.S. Court of Appeals for the Federal Circuit in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. Next, while service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints, the evidence in this case does not establish such a relationship. The Veteran was informed of the necessity to submit evidence showing a relationship between any claimed back disorder and his period of service, and he has not done so. In sum, the preponderance of the evidence weighs against a finding that any claimed low back disorder is related to the Veteran's period of service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a low back disability is denied. REMAND As it relates to the claim of service connection for a right hand disorder, the Board notes that on his January 2004 Annual Medical Certificate, the Veteran indicated that his right hand had a knot in it that bothered him. Private treatment records associated with the claims folder reveal that the Veteran had right tunnel carpal surgery performed in March 2006. While there is no indication in the record that the Veteran injured his right hand in service, based upon the Veteran's complaints of a knot in his right hand during his period of active service, a current right hand disability, and the heightened duty to assist as a result of lost records, the Veteran should be afforded a VA examination to determine the etiology of any current right hand disorder and its relationship, if any, to this period of active service. As it relates to the claimed left shoulder disorder, the Board notes that the Veteran was seen with complaints of a left shoulder problems in May 2004. Although the Board observes that the Veteran finished his period of active duty service in April 2004, personnel records associated with the claims folder reveal that the Veteran had ACDUTRA for a period of 15 days between April 3, 2004 and May 26, 2004. The Board is unsure as to whether the May 2004 left shoulder injury occurred during a period of ACDUTRA. While the Board requested that an attempt be made to verify whether this occurred during a period of ACDUTRA, it does not appear that such an attempt was made. If it is determined that this occurred during a period of ACDUTRA, the Veteran should then be afforded a VA examination to determine if any current left shoulder disorder is related to the injury sustained to the left shoulder in May 2004. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Alabama National Guard and request that it provide the specific dates that the Veteran served on ACDUTRA during the time period from April 3, 2004, to May 26, 2004. All attempts to verify this service must be documented and if it is determined that this cannot be verified it should be noted what steps were attempted to verify this information. 2. If it is verified that the Veteran's left shoulder injury, which occurred on May 10, 2004, was during a period of ACDUTRA or if there can be no verification of the period of ACDUTRA for the time period from April 3, 2004, to May 26, 2004, schedule the Veteran for a VA examination to determine the nature and etiology of any current left shoulder disorder. All indicated tests and studies should be performed and all findings must be reported in detail. The claims folder and all other pertinent records must be made available to the examiner for review and the examiner should noted such review in his/her report. The examiner is requested to render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the May 2004 shoulder injury is related to any current left shoulder disorder. Complete detailed rationale is requested for any opinion that is rendered. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any current right hand disorder. All indicated tests and studies should be performed and all findings must be reported in detail. The claims folder and all other pertinent records must be made available to the examiner for review and the examiner should noted such review in his/her report. The examiner is requested to render an opinion as to whether it is at least as likely as not that the painful right hand knot reported by the Veteran in January 2004 is at least as likely as not (50 percent probability or greater) related to any current right hand disorder. Complete detailed rationale is requested for any opinion that is rendered. 4. To help avoid future remand, the RO must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the above development, readjudicate the remaining claims. If any disposition remains unfavorable, furnish the Veteran and his representative with a supplemental statement of the case (SSOC), and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs