Citation Nr: 1328466 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 09-45 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a bilateral foot disability. 3. Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty October 1965 to October 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had also perfected an appeal of the RO's September 2008 denial of service connection for a sleep disorder. However, in a November 2009 VA Form 9 (Substantive Appeal), he indicated that he believed that his sleep problems are due to posttraumatic stress disorder (PTSD). A July 2010 rating decision granted him service connection for PTSD (with associated sleep problems). Consequently, the matter of service connection for sleep problems is not before the Board. The issues of service connection for bilateral foot and bilateral shoulder disabilities are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if action on his part is required. FINDING OF FACT A back injury in service is not shown; the Veteran's current low back strain and disc disease were not manifested in service; and his current back disability is not shown to be related to, his service, including as due to injury or environmental exposures therein. CONCLUSION OF LAW Service connection for a back disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of this claim prior to its initial adjudication. An April 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing and the evidence he was responsible for providing, and advised him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. Service treatment records (STRs) and available post-service treatment records have been secured. (A request for records of treatment prior to 2000 from Mercy Medical Center produced a response that such records are no longer available. The RO arranged for a VA examination in August 2010. The examination report is adequate for rating purposes, as the examiner expressed familiarity with the record, conducted a thorough examination, and offered an opinion that includes explanation of rationale with citation to factual data. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record, as it stands, includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The Veteran served in Vietnam from October 1966 to October 1967. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to an herbicide agent therein, unless there is affirmative evidence of non-exposure. If a Veteran was exposed to an herbicide agent during service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. The enumerated diseases do not include low back strain or disc disease. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The United States Court of Appeal for the Federal Circuit (Federal Circuit) has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nonetheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039, at 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's STRs, including his October 1968 service separation physical examination report, are silent for complaints, findings, treatment, or diagnosis related to his back. On October 1968 service discharge examination, the Veteran denied having or having had back pain. His back was normal on clinical evaluation. VA treatment records show that on January 2000 VA evaluation, the Veteran reported chronic aching pain in his entire back, from the neck to the low back, that occurs when he lies down, and goes away when he stands. He had not sought medical attention for it. He had previously self- treated with alcohol, and now was using aspirin or Tylenol for relief. He reported having lumbar laminectomies (in 1978 or 1979). On June 2007 VA evaluation, the assessment was low back pain. In his January 2009 notice of disagreement, the Veteran complained of constant back joint pain. In March 2009, the Veteran reported that when he first got to Vietnam, he was a stevedore on the Saigon River. In about the 2nd month, he hurt his back, so they put him on guard duty. In May 2009, the Veteran indicated that he injured his back unloading a ship during service. In April 2009, the Veteran reported he had received treatment for his back in about 1972 or 1973. In November 2009, the Veteran indicated that back pain started bothering him around the 2nd month he was in Vietnam; he sought treatment, and was put on light duty. The pain came and went through the rest of his service. His spouse stated that when the Veteran was discharged from service, he took a job at a packing company, but after 2 weeks was told there was something wrong with his back and let go. On August 2010 VA spine examination, it was noted that the Veteran's claims file was reviewed prior to the examination, and his history was considered. The Veteran related that at one point in service, he was moving 100-gallon barrels from a truck, when they fell and came at him. To avoid them he awkwardly twisted his low back, and since then has had low back pain intermittently. Based on the Veteran's reports, it seemed that had an L4-5 diskectomy (privately done) in about 1978 or 1979. After examination, which revealed a surgical scar on the dorsal surface of his back, in its midline, the impressions were chronic low back strain; and lumbar degenerative disc disease status post lumbar diskectomy. It was the examiner's opinion that the Veteran's chronic low back strain and lumbar degenerative disc disease were not likely related to his service. The examiner explained that low back pain, particularly in the form of chronic muscular strain, is quite common in the general population. It is expected that in the course of one's life, most people will experience such pain. It is often times related to various causative factors that the patients ascribe it to. However, in general, it cannot be reliably attributed to a single event. As for the lumbar disc disease, it was unlikely that the Veteran had a herniated disc [in service] that became symptomatic 10 years following service and required surgery. Disc pathology, particularly in the lumbar spine, is quite common in the general population. The fact that the Veteran had diskectomy for his lumbar back pain does not necessarily mean that it is attributable to his service. The constellation of symptoms related to chronic muscular strain and degenerative disc disease is quite common and increases in frequency with age. At the outset the Board notes that the Veteran appears to be alleging that his back disability is related to his exposure to herbicides/Agent Orange in service. Although he served in Vietnam, and thus is presumed to have been exposed to herbicides, back strain and disc disease are not listed among the diseases recognized as related to herbicide exposure enumerated in 38 C.F.R. § 3.309(e); consequently, the presumptive provisions of 38 U.S.C.A. § 1116 do not apply. Furthermore, the Veteran has not presented any evidence that affirmatively relates back strain and/or lumbar disc disease to herbicide exposure. Consequently, to establish service connection for his back disability, the Veteran must show, by competent evidence, that it was manifest in service or that it is otherwise causally related to his service. The Veteran's service treatment records do not show complaints, findings, or treatment of a back disease or injury in service; on service discharge examination in October 1968 he denied having or having had back pain, and his spine was normal on clinical evaluation. Notably, while denying a history of back pain on separation the Veteran endorsed a dozen other various physical complaints. Logically, if he was having any significant back pain in service, it would have been noted in that report. By their very nature (in that they are contemporaneous official records that reflect the state of the Veteran's health) the service treatment records are material, highly probative evidence against the Veteran's claim. The Veteran apparently had a couple of back surgeries in the late 1970's (histories note these were in 1978/79, but there are no contemporaneous records). He identified the treating facility, and the related records were sought, but were reported to have been destroyed, and unavailable. By their lay reports of continuity of complaints since injury in service the Veteran and his spouse have attempted to relate his surgically treated back problems to his service. However, because they are self-serving and contradicted by contemporaneous records that are available, their lay accounts are deemed not credible. A VA physician opined in August 2010 that the Veteran's disc surgery in 1978/1979 was not likely related to an injury in service. The examiner (a physician who by virtue of training is qualified to provide opinions requiring medical expertise) expressed familiarity with the record and the opinion is accompanied by an explanation of rationale that includes a detailed discussion of the etiological factors that contribute to the development of intervertebral disc disease. The opinion is therefore highly probative evidence in this matter. Regarding the Veteran's allegations that his back disability is related environmental exposures (as well as injury sustained) in service, the Board notes that in the absence of credible evidence of injury in service and (particularly) continuity of complaints thereafter, the matter of a nexus between disabilities such as lumbar disc disease and strain and environmental exposures or an undocumented injury in service is a medical question that is beyond the capability of lay observation. The Veteran is a layperson, and does not cite to supporting medical opinion or literature. His opinion in the matter is therefore without probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's current back disability is related to his service. Therefore, the appeal seeking service connection for such disability must be denied. ORDER The appeal seeking service connection for a back disability is denied. REMAND While the record reflects that VA's VCAA-mandated notification duties are met, the Board finds that further development is needed for VA to meets its duties to assist the Veteran in developing his claims. VA's assistance duties include arranging for a medical examination/opinion when such is necessary to make a decision on a claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. An examination/opinion is necessary (in a service-connection claim) if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App.79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). A May 1967 STR shows the Veteran received treatment for athlete's foot, and on service discharge examination in October 1968, he reported that he had had foot trouble. Regarding shoulder disability, in May 2009, he reported that his duties in service included unloading a ship in service for a few weeks. VA medical records show that he now has degenerative joint disease and likely rotator cuff injuries of both shoulders and degenerative joint disease of his feet. In February 2009, he reported that he developed jungle rot in service. [He also alleges the remaining claimed disabilities are related to exposure to Agent Orange in service.]. The Veteran has not been afforded a VA examination in these matters. Regarding the bilateral shoulder arthritis and/or rotator cuff injuries, he has provided evidence of a current diagnosis of the disabilities and a possible etiological factor (unloading a ship in service -which is consistent with his service occupational specialties of cargo/supply handler). Regarding bilateral foot disorders, he had athlete's foot in service and a history of complaints of foot trouble at separation and now has degenerative joint disease of his feet. Accordingly, the "low threshold" standard as to when an examination is necessary, endorsed by the U.S. Court of Appeals for Veteran's Claims in McLendon, is met. The case is REMANDED for the following: 1. The RO should arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his current bilateral shoulder and foot disabilities. The entire must be reviewed by the examiner in conjunction with the examination. All clinical findings should be reported in detail. Based on a review of the Veteran's pertinent medical history and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Please identify, by medical diagnosis, each shoulder and foot disability entity found. (b) Please identify the likely etiology for each shoulder and/or foot disability entity diagnosed. Specifically, is it at least as likely as not (a 50 % or better probability) that the disability is related to the Veteran's service/events therein, to include (for the shoulders) duties unloading a ship, and (for the feet) treatment in service/history noted at separation, as well as environmental exposures. The examiner must explain the rationale for all opinions. 2. The RO should then review the record and readjudicate these claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs