Citation Nr: 1327335 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 05-41 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, to include lumbar stenosis with radiculopathy. 2. Entitlement to service connection for a cervical spine disability to include cervical stenosis with radiculopathy, status post-spinal fusion. 3. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD W.T. Snyder INTRODUCTION The Veteran had active service from January 1982 to February 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal of a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that denied the benefits sought on appeal. These matters were remanded by the Board in April 2009, May 2010 and October 2011. The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has reviewed the documents in both files in the review of this appeal. The issue of entitlement to service connection for 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. FINDINGS OF FACT 1. The RO completed the additional development directed in the May 2011 Board remand. 2. The Veteran's current cervical spine disability, to include spinal stenosis, did not have its onset in active service, nor is it related to a disease or injury during active service. 3. The Veteran's current lumbar spine disability, to include spinal stenosis, did not have its onset in active service, nor is it related to a disease or injury during active service. CONCLUSIONS OF LAW 1. A cervical spine disability, to include status post-spinal fusion and spinal stenosis, was not incurred in active service, nor may it be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a) (2012). 2. A lumbar spine disorder, to include spinal stenosis, was not incurred in active service, nor may it be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the 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. VCAA 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). Prior to issuance of the rating decision on appeal, the Veteran was sent a notice letter in August 2003. This communication explained the division of responsibilities between VA and a claimant in developing an appeal and how to substantiate a service connection claim. The August 2003 letter was fully time- but not entirely content-compliant. 38 C.F.R. § 3.159(b). The sole content deficiency was that the letter did not inform the Veteran how disability evaluations and effective dates are determined. See Dingess/Hartman, 19 Vet. App. 473. This deficiency was cured by a March 2006 letter. The timing deficiency was cured by re-adjudication of the claims in supplemental statements of the case issued after the notice. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Upon receipt of the Veteran's claim, the RO obtained the service treatment records, VA outpatient records, and sought any existing private records. It obtained records of treatment provided through a corrections department. The Veteran had reported treatment at the VA Medical Center in Miami, Florida beginning in 1990. The RO made four requests for these records and ultimately received for the period beginning in December 2000. The initial record dated in December 2000 contains a report that the Veteran was newly enrolled at that facility. Hence, it is reasonably certain that there are no records from that facility for the period prior to December 2000. After the Veteran asserted there were records missing from the claims file, the Board remanded so he identify what records were missing. None were identified. The Board also remanded so records of the Social Security Administration (SSA) related to the Veteran could be obtained and for another VA examination. The Board notes the Veteran's May 2013 letter wherein he takes issue with a VA examination conducted in January 2013. The Board finds the Veteran was addressing a mental disorder examination and not the spine examination germane to the decision in this case. The January 2013 examination with regard to the low back and neck appears to consider an accurate record, including the Veteran's reports; and contains opinions that were supported by a sufficient rationale. The examination is; therefore, adequate. In light of the earlier discussions, the Board finds further that VA has complied with the VCAA duty to assist the Veteran with his claim. See 38 C.F.R. § 3.159(c). There is no additional notice or assistance that would be reasonably likely to aid the Veteran in substantiating his claims. Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection generally requires a showing of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Certain chronic diseases such as arthritis are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element in a claim involving a chronic disease, is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007), if the condition is a chronic disease. Walker v. Shinseki, 708 F.3d 1131 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was "noted" during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Walker, supra; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). If a chronic disease is adequately demonstrated during service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 profession." See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.307, 3.309. The Board must fully consider the lay evidence. Davidson, 581 F.3d 1313. A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology 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. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The bottom line is that lay testimony, where probative on the issue, still must be assessed for credibility and accuracy. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran asserts his spine disorders are the result of injuries he sustained in a fall while stationed in Germany. Service treatment records dated in August 1983 note the Veteran walked into the Battalion Aid Station with complaints of trauma to the left side of the head 12 hours earlier. He reported he was walking down the side ramp of a building when he slipped and fell. According to the Veteran, another person passed by four hours later and saw him laying where he had fallen; the person had difficulty waking the Veteran. The Veteran reported he awoke the morning of his visit to the aid station with a severe headache throughout his head, and he also complained of nausea, blurred vision, and malaise. Physical examination revealed edema and ecchymosis over the posterior aricular area of the left ear. There was tenderness to palpation of the temporal muscles throughout the mandible, and the pupils were slightly slow in reacting to light. The Veteran complained of severe photophobia. Pinprick sensory test suggested loss of sensation of pain at the forehead and upper mandible. The assessment was rule out left occipital fracture/concussion, and the Veteran was referred for another evaluation at the local clinic. At the clinic, the discs were normal, and the diagnosis was rule out skull fracture/closed head injury. He was then referred to the hospital emergency room. At the emergency room, the Veteran reported he had vomited twice that day, and he had a right occipital headache. Physical examination revealed the discs as sharp, and the neck supple. A skull x-ray was read as negative. The diagnostic assessment was loss of consciousness, normal examination. General surgery was notified, and the Veteran was admitted. The Veteran was discharged approximately 48 hours later with a diagnosis of closed head injury. He was instructed to follow up as needed. He was placed on a temporary profile until the first of September 1983 that excused him from PT testing and field duty. In September 1983, the Veteran complained of pain in the jaw and small lumps behind the right ear due to the August 1983 trauma. He reported further that it was hard for him to sleep and, when he did sleep, it was hard to get up. When he yawned, it felt as if someone was stabbing him with a knife. The entry also notes the Veteran "blacked out." The entry appears to describe the August 1983 fall; the Veteran reported he experienced cold chills. Physical examination revealed the Veteran to have a tired appearance. There was a contusion behind the right ear that was very tender to palpation. The right mandible from near the ear down to the chin was also tender to palpation, the right jaw line had edema, and there was decreased range of motion (ROM) when the Veteran tried to open his mouth fully. Examination of the left ear revealed shiny tympanic membranes, and there was white fluid in the right ear external to the tympanic membrane. The Veteran was referred to a physician assistance for further evaluation. There is no indication the Veteran reported, however, as the next in the service treatment record is dated a month later in October 1983, and the Veteran complained of flu-like symptoms, which was the diagnosis. In January 1984, the Veteran complained of tightness in his chest and difficulty breathing. He reported further that it really hurt when he sat back, and when he tried to get up. The symptoms had existed for two days. Physical examination revealed tenderness to palpation of the chest, decreased ROM at the neck posteriorly and anteriorly, and mild decreased ROM on lateral movement. There was no reference to the August 1983 fall. The diagnostic assessment was muscle spasm of the chest, and the Veteran was placed on 48-hours bed rest. On his January 1984 Report of Medical History for his examination at separation, the Veteran indicated he was in good health. He specifically denied any history of recurrent back pain, arthritis, or bursitis. He noted the August 1983 head injury when he slipped on cobblestone while it was raining. The examiner noted the Veteran denied any other significant medical history. The January 1984 Report of Medical Examination For Separation reflects the Veteran's spine and other musculoskeletal system were assessed as normal. He was deemed physically fit for separation with a "1A "Profile. The earliest post-service treatment record in the claims file is dated in 1988. An October 1988 private discharge summary (Vol. 3) notes the Veteran was working in a paper factory when a chemical explosion ensued. The Veteran protected his face with his hands, and he sustained second degree burns to his hands as a result. The summary notes the Veteran's medical and surgical history was non-significant, and it describes the Veteran as healthy. A cervical spine X-ray in June 1989, was interpreted as essentially negative. An April 1990 private record notes the Veteran was status post-median and ulnar nerve release, and that the Veteran had experienced persistent right arm and neck pain following a burn injury. This report notes cervical spine films were essentially normal. VA records of November 2001 note the Veteran's report of multiple back injuries, to include a compression fracture in 1997, and a pelvic fracture in the 1980's. The entry notes there was no documentation of the injuries. Lumbar x-rays showed spondylosis and scoliosis. Cervical spine x-rays also showed arthritis by 2002. The November 2003 VA examination report (Vol. 1) reflects the Veteran's statement that he had suffered from spinal stenosis with myelopathy since 1983. He reported further that the condition was not due to injury, as it occurred over time without known initiating trauma. The Veteran reported symptoms of cervical spine discomfort with caudal radiation to the lumbar region, with associated distal left upper and bilateral lower extremity paresthesia. He reported further that his symptoms were constant. Physical examination revealed ROM of the cervical and lumbar spine. Cervical spine X-rays showed post-surgical changes with evidence of C5-C7 fusion. Lumbar spine X-rays showed degenerative arthritis and levoscoliosis. The examiner noted there was no evidence to merit a change in the existing diagnoses. Correction department treatment records dated from 2004 to 2008, show the Veteran was seen with complaints of neck and back pain, but do not record his history. The August 2009 VA examination report (Vol. 3) reflects the examiner conducted a review of the claims file as part of the examination. The Veteran reported the 1983 fall, that he was hospitalized for three days, and afterwards he was treated for low back problems on multiple occasions. He reported further that, after his separation from the Army, he remained in Germany for three years, during which German physicians treated his back problem with spinal injections. According to the Veteran, he returned to the U.S. in 1987 where he again was treated by private physicians. He started receiving VA treatment in 1999 while living in Florida. After his symptoms increased, he underwent cervical spine surgery in April 2003. The Veteran reported his medications included narcotics for pain relief as well as physical therapy. The Veteran reported severe low back pain with sciatic radiation. Prior to the cervical spine surgery, he also had severe neck pain with radiation down both arms. Based on the Veteran's reported history and the physical examination, the examiner diagnosed status post-cervical spine fusion and lumbar intervertebral disc syndrome. The examiner opined the Veteran's current cervical and lumbar spine disabilities were not causally related to the August 1983 fall noted in the service treatment records. The examiner noted the Veteran did not seek VA care for several years, and there were significant periods of time when the Veteran sought private treatment, to include from corrections medical officials while he was incarcerated. Thus, the examiner opined, a link between the Veteran's current spine disorders and the 1983 in-service injury could not be made with any degree of certainty. The examiner then noted further, "[i]n point of fact, these conditions likely have nothing to do with his service." The examiner did not provide further explanation for the last observation. In the October 2011 remand, the Board noted the fact that a medical opinion was not adequate where it relied solely on the absence of treatment records without considering a Veteran's competent reports, and that the examiner at the 2009 examination did not appear to apply the correct legal standard. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Hence, the Board remanded for another examination. The January 2013 examination report (Vol. 6) reflects the examiner conducted a review of the claims file as part of the examination. The Veteran reported he had wrenched his lower back and struck his head secondary to the August 1983 fall. He reported ongoing back and neck problems with limited movements afterwards. The Veteran also reported that he eventually returned to duty despite the pain. He had some spine injections and physical therapy with limited results. The Veteran reported he was separated from service in 1984 on "temporary records," and he was told he would be contacted for follow-up on his neck and back injuries; but, he was never contacted. He reported his current symptoms, and that he was incarcerated at the time of the examination. His medication included Neurontin, which did not provide relief for his pain. Physical examination revealed the Veteran to use a cane for ambulation. The spine demonstrated limitation of motion. The examiner noted spine X-rays showed arthritis but no fracture. The examiner noted the date of onset of arthritis was uncertain. Based on the review of the claims file and the examination of the Veteran, the examiner opined there was less than a 50-percent probability that the Veteran's current cervical and lumbar spine disorders were causally related to the 1983 in-service fall. The examiner noted the fact the Veteran denied any history of recurrent back pain in January 1984. The examiner noted further that the usual natural history of the type neck and back injury the Veteran described at the examination, as well as the description noted in the service treatment records in 1983, is complete resolution of symptoms without residuals. Finally, the examiner noted that the widespread nature of the Veteran's degenerative arthritis and degenerative disc disease indicates it is more likely indicative of natural processes as opposed to an injury such as the Veteran asserts and which is documented in the service treatment records in August 1983. Analysis The extensive medical record in this case clearly shows that the Veteran has current cervical and lumbar spine disabilities. The service treatment records and the Veteran's statements support a finding that there was an in-service injury (although the nature of that injury and whether it involved the neck or low back is less clear). The remaining question is whether the evidence establishes a link between the current disabilities and service. As arthritis is a chronic disease, a nexus to service could potentially be established on the basis of a continuity of symptomatology. The Veteran has reported that his symptoms began in service and have continued since. The contemporaneous record; however, shows that the Veteran did not report ongoing symptomatology when given the opportunity to do so at the time of his separation from service, or in the initial post-service clinical records dated in the late 1980's and early 1990's. In March 1984, he filed for VA compensation for a heart disorder. The Veteran did not claim any other basis for compensation. As earlier noted, the 1988 summary noted the Veteran's prior medical history was not significant and described him as a healthy male. As late as 2001, when the Veteran related his history to a VA treatment provider, he apparently omitted mention of any in-service neck or low back injury nor did he mention symptoms dating to service; and in March 2003, it was noted only that there had been back injuries in the last several years. The Veteran did not consistently report a continuity of symptomatology until the time of his claim in August 2003. Given the contradictory contemporaneous statements and the normal findings and history at the time of his separation from service; the Veteran's reports of continuity of symptoms are not deemed credible. There is no other evidence of a continuity of symptomatology dating from service. There is also no other evidence linking the current neck or low back disabilities to service. The August 1983 entry in the service treatment records does not document any report by the Veteran of neck or back involvement. There is no evidence the Veteran's cervical or lumbar spine arthritis was manifested in or within one year of service. Thus, there is no factual basis for service connection on a presumptive basis. See 38 C.F.R. § 3.303(b); see also Walker, 708 F.3d 1331. There also is the matter of the Veteran's credibility, which the Board rejects. The Board has found the January 2013 VA examination and opinion to be highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner discussed the Veteran's reports of in-service injuries and resulting symptoms and discussed the relevant post-service records. The examiner provided an opinion supported by reasons that considered relevant history. As noted that opinion is against a link between the current disabilities and service. There is no favorable medical opinion of record. As the most probative evidence is against a link between the current disabilities and service; the preponderance of the evidence is against the Veteran's claim on a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). As the preponderance of the evidence is against the Veteran's claims, reasonable doubt does not arise and the claims are denied. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for a lumbar spine disability, to include lumbar stenosis with radiculopathy, is denied. Entitlement to service connection for a cervical spine disability to include cervical stenosis with radiculopathy, status post-spinal fusion, is denied. REMAND A March 2013 rating decision denied entitlement to service connection for PTSD. The Board reads the Veteran's May 2013 letter as showing an intent to appeal that decision. See 38 C.F.R. § 20.201. Hence, the appeal process has started, and the Veteran is entitled to a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The agency of original jurisdiction issue an SOC on the issue of entitlement to service connection for a psychiatric disability to include PTSD. The issue should not be certified to the Board unless a sufficient substantive appeal is received. The Veteran 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs