Citation Nr: 1327393 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 11-04 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disorder (also claimed as loss of balance and shift of weight secondary to gunshot wound) as secondary to service-connected neuropathy of the right common peroneal nerve, partial, resulting from gunshot wound, right leg, with post-operative scars. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from March 1958 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at a Board Videoconference in March 2013. A written transcript of this hearing has been prepared and incorporated into the evidence of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's low back disorder did not manifest during, or as a result of, active military service, nor is it secondary to or permanently aggravated by the Veteran's service-connected neuropathy of the right common peroneal nerve, partial, resulting from gunshot wound, right leg, with post-operative scars. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a low back disorder, to include as secondary to the Veteran's service-connected neuropathy of the right common peroneal nerve, partial, resulting from gunshot wound, right leg, with post-operative scars, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) 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. Letters sent to the Veteran in May 2008 and March 2009 addressed all notice elements listed under 3.159(b)(1) and were sent prior to the initial RO decisions in this matter. These letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The Veteran has been afforded a hearing before an AVLJ in which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation: to fully explain the issues and to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the AVLJ identified the issue on appeal, and ensured that pertinent evidence and information was elicited to include any pertinent outstanding evidence not currently associated with the claims file that might substantiate the claims and the location, dates, and providers of the Veteran's care. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the appeal. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed on the merits. VA obtained the Veteran's service treatment records. Also, the Veteran was afforded a VA examination in this case, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board recognizes that the Veteran asserted during his February VA spine examination that he stopped working in 2005 after his cerebral hemorrhage and was receiving Social Security benefits. However, the Veteran has not been prejudiced by the Board's decision to adjudicate this issue prior to the receipt of these records. The United States Court of Appeals for the Federal Circuit has noted that VA's duty to assist is not boundless in scope, and VA is not required to assist a claimant in obtaining identified records "if no reasonable possibility exists that such assistance would aid in substantiating the claim." Golz v. Shinseki, 590 F.3d 1317 (2010). While the Federal Circuit emphasized that this holding was limited in scope, the record shows that the Veteran was granted Social Security benefits following a 2005 cerebral hemorrhage, several years prior to his first treatment for low back pain in 2009. As such, obtaining these records would serve no useful purpose in substantiating a claim of entitlement to service connection for low back disorder - a disability that was diagnosed approximately four years after the Veteran's reported Social Security benefits. Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be evidence, medical or in some circumstances lay, showing: (1) the existence of a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a Veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the 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. 3 8 U.S.C.A. §§ 1101 , 1112, 1137; 38 C.F.R. §§ 3.307 , 3.309 (2012). In Walker v. v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Court held that continuity of symptomatology was not applicable because § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). In this case, a diagnosis of arthritis of the low back confirmed by X-ray findings has not been made. Thus, consideration of the Veteran's claim under this theory of entitlement is not warranted. Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Relevant Facts The Veteran's service treatment records show that he sustained an injury to the right leg in September 1960. Specifically, he removed a .45 caliber revolver from his holster and accidentally discharged the weapon into his right lower extremity. He was subsequently diagnosed with neuropathy, n.e.c., deep peroneal nerve, due to gunshot wound. A May 1962 examination as well as the Veteran's July 1962 separation examination show a normal spine. The Veteran submitted a claim for service connection for right leg nerve damage in January 1965. He was afforded a VA examination in February 1965. Significantly, this examination shows a normal musculoskeletal examination with the exception of neurological deficits in the right leg. By rating decision dated in April 1965 the RO granted service connection for gunshot wound (GSW) scar of the right leg, PO scars injury Muscle Group XI, post-traumatic neuropathy deep peroneal nerve and scar of the right heel from old cast assigning 30 percent disability rating for the right leg and a 10 percent disability rating for the scar, both effective January 7, 1965. The Veteran's service-connected right leg disorder was re-examined in May 1970, April 1972, and October 2005. None of these examination reports note any complaints of or findings regarding a low back disorder. The Veteran submitted a claim for service connection for a low back disorder in March 2008. Specifically, the Veteran wrote that his low back disorder was secondary to shift of weight due to his service-connected right leg injury. The first medical evidence showing a low back disorder in the claims file is dated in April 2009. At that time the Veteran complained of pain in his lumbosacral spine and X-rays were recommended. In connection with this claim the Veteran was afforded a VA examination in February 2010. The examiner reviewed the claims file and noted the Veteran's in-service right leg injury. The examiner indicated that the Veteran wore a right leg brace at some point but had not worn a brace for several years because his previous brace "wore out." The Veteran indicated that he occasionally stumbled and fell while walking. He stated that his knees were bad as well. He had been using a cane for the past four to five months. He used to have what he described as a spring-loaded ankle foot orthosis to hold his toes and foot while walking. The Veteran reported that he often wore the toe out on his right shoe. He stated that he could walk a couple of blocks without any problems. He denied problems driving. He stated that he was able to mess around his shop a little for a few hours each day. He indicated that his back pain began three years earlier. He could not do any heavy lifting. His back pain had been worse since XRT therapy for prostate cancer. He described some generalized weakness in both the upper and lower extremities. His back pain would occasionally wake him up. He described no bowel or bladder incontinence. He had erectile dysfunction. He used no braces or other aides regarding the back. He described no flare-ups or incapacitating events. He had no surgery or hospitalization. There was no history of inflammatory arthritis or neoplasms. He had x-ray therapy for prostate cancer in 2008. Of note, the Veteran had seizures and a head injury with a cerebral bleed with surgery in 2005. The Veteran last worked in 2005 after his cerebral hemorrhage. He previously installed fire sprinkler systems in buildings. At the time of the examination he was receiving Social Security benefits. The examiner noted that X-rays of the lumbar spine dated in May 2009 showed unremarkable spinal alignment. There was slight narrowing in the intervertebral disk space at L5-S1 secondary to underlying degenerative changes in the disk. There was no fracture or dislocation. Mild degenerative changes were noted in the facet joints at the L5-S1 level. Paravertebral soft tissues were unremarkable. There was minimal calcification in the wall of the abdominal aorta. The presence of any other significant abnormality was not suspected. The impression was minimal degenerative changes demonstrated at the lower part of the lumbar spine. The February 2010 VA examiner noted that the Veteran had age related changes of the lumbar spine with minimal degenerative disk disease. The examiner noted that the Veteran had no treatment for or complaints regarding his low back from 1960 to 2009. Changes on X-ray were reportedly consistent with the Veteran's age. The examiner opined that it was less likely as not that the Veteran's low back disorder is in anyway associated with his gunshot wound to the right lower extremity. During the March 2013 Board Videoconference hearing the Veteran reported that he first sought treatment for his back at VA in 2010 and also denied private medical treatment. He denied an in-service injury to his back. Analysis The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a low back disorder, to include as secondary to his service-connected neuropathy of the right common peroneal nerve, partial, resulting from gunshot wound, right leg, with post-operative scars. Service treatment records fail to reflect any low back symptomatology and the Veteran has not alleged an in-service injury to the low back. Therefore, the issue of in-service incurrence is not in dispute. Post-service evidence also reflects that the Veteran's low back disorder did not manifest as a result of military service or as a result of his service-connected left knee disability. As above, the February 2010 VA examiner noted that the Veteran had age related changes of the lumbar spine with minimal degenerative disk disease. The examiner noted that the Veteran had no treatment for or complaints regarding his low back from 1960 to 2009. Changes on X-ray were reportedly consistent with the Veteran's age. The examiner opined that it was less likely as not that the Veteran's low back disorder is in anyway associated with his gunshot wound to the right lower extremity. Therefore, the preponderance of the evidence of record demonstrates that service connection is not warranted for a low back disorder, to include as secondary to the Veteran's service-connected neuropathy of the right common peroneal nerve, partial, resulting from gunshot wound, right leg, with post-operative scars. The Board acknowledges the Veteran's testimony and appellate assertions, in that he essentially attributes his low back disorder to his service-connected right leg disorder. Nonetheless, the medical evidence establishes that the Veteran's low back disorder is due to his advancing age. The Veteran is not competent to establish a nexus between his low back disorder and service or any service-connected disability. A matter of such medical complexity requires medical expertise. Additionally, the competent and credible medical evidence opposes the Veteran's assertions. As such, the Veteran's lay statements are not competent and credible and in any event, are clearly outweighed by the medical evidence of record. Accordingly, the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for a low back disorder must be denied. ORDER Service connection for a low back disorder (also claimed as loss of balance and shift of weight secondary to gunshot wound) as secondary to service-connected neuropathy of the right common peroneal nerve, partial, resulting from gunshot wound, right leg, with post-operative scars is denied. ____________________________________________ B. MULLINS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs