Citation Nr: 1328537 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 06-29 654 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to service connection for intervertebral disc syndrome (IVDS) of the lumbar spine. 2. Entitlement to service connection for IVDS of the cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from October 1998 to October 2003. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2005 rating decision in which the RO, inter alia, denied service connection for cervical and lumbar IVDS. In April 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals in September 2006. In September 2010, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. At the time of the Board hearing, the Veteran submitted additional lay evidence, in the form of a written statement from his mother and father, directly to the Board, along with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304, 20.1304 (2012). Thereafter, in September 2010, the Veteran's representative submitted additional medical evidence directly to the Board, along with a waiver of initial RO consideration of the evidence. In June 2011, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the AMC continued to deny the claims (as reflected in a March 2012 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. The case was again remanded in August 2012 to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further action, to include additional development of the evidence and diagnostic clarification. After completing the requested development, the AMC continued to deny the claims (as reflected in an April 2013 SSOC and returned these matters to the Board for further appellate consideration. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims folder associated with the Veteran's claims. For the reasons discussed below, the Board finds that the claims on appeal must, again, be remanded to the RO, via the AMC, for further development. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board's review of the claims files reveals that further RO action in this appeal is warranted, even though it will, regrettably, further delay an appellate decision on these matters. As noted in the Board's June 2011 and August 2012 remands, the Veteran contends that he developed back and neck problems when, during his service in Iraq, he was helping to tie up antennas and one of the antenna guidelines snapped, hitting him in the back and the head, knocking him to the ground. The Board acknowledged that there was no documentation of this injury in the service treatment records (STRs). It was also noted that he testified that, in Iraq, he had to carry antennas that were between 80 and 90 pounds when setting up communication equipment in different locations, which involved a lot of carrying, lifting, and long walks. Also, the Board had noted that the record contained lay statements from the Veteran and his parents indicating that he experienced neck and back problems upon his return from Iraq which were credible in light of the Veteran's specialty during service (i.e., Multi Channel Equipment Operator). Upon a closer reading, the September 2006 joint statement from his parents reported that he had back pain but does not report that the Veteran had an inservice back injury or chronic neck or back pain since service. Also, statements from a friend and the Veteran's sister make no mention of neck or back pain. Initially, it is noted that the comment in the prior Board remands that the lay statements in this case were credible was an assumption made solely for the purpose of determining whether a VA examination to obtain medical etiology opinions should be accomplished. The ultimate determination of the credibility of any lay evidence is made at the time of a decision on the merits. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i) (2012). Furthermore, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stegall v. West, 11 Vet. App. 268 (1998). The STRs include an April 2003 post-deployment Wellness Support Services Element questionnaire in April 2003 in which the Veteran reported not having back pain. In August 2003 it was reported that the Veteran had bronchitis and left upper extremity weakness. However, the August 2003 separation examination was negative and in an adjunct medical history questionnaire the Veteran reported not having recurrent back pain or any back problem and not having numbness or tingling. On the other hand, in the Veteran's original September 2004 VA claim for compensation he reported having had neck pain from 2001 to 2003 and back pain from 2002 to 2003. During an official (QTC) examination in October 2004, about one year after service discharge, the Veteran related the onset of neck and back pain in 2000, with neck pain radiating down the left arm and back pain radiating down the left leg. On examination there was no cervical muscle spasm, weakness or tenderness but there was lumbar tenderness and mild to moderate paravertebral muscle spasm, and straight leg raising was positive on the right. There was decreased sensation in the approximate dermatomes of C6 and C7 in the right upper extremity and the approximate dermatomes of L4 and L5 in the right lower extremity. Spinal X-rays revealed no significant findings. The pertinent diagnoses were cervical radiculopathy, IVDS, C6 and C7 nerve roots; and lumbar radiculopathy, IVDS, L4 and L5 nerve roots. There was no opinion as to whether the IVDS of the neck and lumbar spinal segments were of service onset or otherwise related to military service. VA outpatient treatment (VAOPT) treatment records in 2005 reflect complaints of neck and back pain. In August 2006 the Veteran again complained of shoulder and back pain, and reported having had to carry heavy equipment and a back injury during service but it was also reported that he stated that "both conditions [had] started after the service." In part, the 2011 Board remand was for the purpose of obtaining treatment records from October 2003 to October 2004 of Dr. M., a massage therapist, whom the Veteran reported having seen in the immediate postservice years, because he reportedly was unaware that he could seek VA treatment. In a July 2011 letter he was requested to execute and return the necessary authorization or release form. However, he never responded. It is emphasized, for the Veteran's understanding, that such records may play a vital role in the adjudication of his claims. Thus, he should again be requested to execute and return the needed release or authorizations forms to obtain such records. After the June 2011 Board remand, a September 2011 VA examination by a physician's assistant (P.A.) yielded assessments of subjective complaints of neck pain and lumbago with normal range of motion and normal neurological evaluation, without radiographic evidence of any pathology. Finding no clinical pathology of the neck or low back, the P.A. opined that neither of the claimed condition was at least as likely as not related to military service. That opinion was based upon a lack of evidence of complaints, treatment, or diagnosis for any neck/back pain or injury during service, an April 2003 Wellness Support Services Element denying any history of back pain, and a May 2003 Post Deployment Health Care Assessment in which the Veteran stated his health was "good." The 2011 physician's assistant reported that the 2004 QTC examiner "did not state that the [V]eteran's diagnosed intervertebral disc syndrome . . . was due to his active military service." In the August 2012 remand, the Board noted that the September 2011 VA examiner did not discuss-and, in fact, seemed to have (1) disregarded-the October 2004 QTC examination clinical findings and conclusions, to include diagnosis of lumbar and cervical intervertebral disc syndrome and radiculopathy; (2) relied, inter alia, on the absence of a positive opinion in the October 2004 QTC examination report as support for finding that neither claimed disability is related to service; and (3) did not address the lay evidence of an in-service injury with post- service symptoms or lay evidence regarding the Veteran's duties during service. Moreover, the Board observed that the absence of an opinion in the 2004 QTC examination report was not the equivalent to a negative opinion. Thus, the Board remanded these matters in August 2012 for another examination and opinion. It was requested that the examiner discuss whether the Veteran now had current disabilities of the cervical and lumbar spine and, in doing so, consideration was to be given to the findings of the 2004 QTC examination. Also, the examiner was to consider lay assertions as to the occurrence of an in-service injury with continued back and neck pain since service, and to also discuss the impact of the Veteran's duties in Iraq, such as carrying equipment weighing approximately 80 to 90 pounds. The requested VA examinations were conducted in November 2012, at which time the claim files were reviewed. The examiner, another physicians assistant, related the Veteran's history of an in-service injury in the field sometime between May and June 2003 during a sand storm and that he was unable to seek medical attention until 1 1/2 months later and when he was evaluated, he was given Motrin, and returned to duty, but no X-rays were taken. The examiner reported that the Veteran did not have IVDS or signs of radiculopathy of the cervical or lumbar spinal segments, and further that because 1 1/2 months after the in- service injury he was evaluated and released to full duty that it could be assumed that the injury was not severe or permanently disabling. While VA treatment records revealed numerous consults for bilateral knee complaint, the first consult to address the back was not until August 2006 and one for his neck was in September 2006. Thereafter, the claims file was forwarded to a VA medical doctor for review and opinion. After reviewing the claims file, the VA physician opined, in March and April 2013, that cervical and lumbar spine X-rays in 2011 were normal and there was no low back or cervical spine diagnosis. The rationale for the opinion rendered in 2011 was repeated , and it was agreed that the in-service injury was self- limiting in nature as confirmed by the Veteran's not having sought medical care until 2006, three years after service discharge. However, the VA physician rendering the opinions in 2013 made no mention of the diagnoses of cervical and lumbar IVDS and radiculopathy at the time of the 2004 QTC examination. Also, while it is true that X-rays have not confirmed any spinal pathology, the fact remains that clinical findings at the 2004 QTC examination of muscle spasm and decreased sensation seem to support the diagnoses of IVDS made at that time; this fact has not been addressed in the subsequent VA examinations or opinions. The Board points out that the requirement that a claimant have a current disability before being granted service connection is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability may have resolved by the time VA adjudicates the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, the Board finds that, unfortunately, the medical evidence of record is still inadequate to resolve the claims remanding on appeal, and that a remand for additional examination and opinion is warranted. The Board further notes that the record appears to raise an alternative theory of entitlement that should also be addressed by the examiner. The Veteran is service-connected for degenerative changes of the meniscus of the left knee, without a tear, rated 10 percent disabling; and patellofemoral syndrome of the right knee, also rated 10 percent disabling. In the June 2013 Post-Remand Brief, contained in the paperless, electronic (Virtual VA) claims folder, the Veteran's service representative cites 38 C.F.R. § 3.310(a) and (b), which authorizes service connection for disability resulting from causation or aggravation by service-connected disability(ies). Neither the Veteran nor his representative has explicitly argued that the Veteran's service-connected knee disabilities either caused or aggravated the claimed cervical and lumbar spinal disorders. Nevertheless, all pleading must be liberally interpreted in favor of a potential theory of entitlement. Even if the appellant is represented, the Board is still obligated to look for issues raised by the evidence even though not specifically argued. Robinson v. Peake, 21 Vet. App. 545, 552-53 (2008); aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The requirement of sympathetic reading of pleadings "requires [VA] to fill in omissions and gaps" as to potential theories of entitlement. Acciola v. Peake, 22 Vet. App. 320, 326-27 (2008). Hence, the RO should arrange for the Veteran to undergo VA examination, by an appropriate physician at a VA medical facility, to obtain the medical findings and opinions needed to resolve these claims. The Veteran is, again, advised that failure to report to the examination scheduled in connection with these claims may well result in denial of the claims. See 38 C.F.R. § 3.655 (2012). Prior to arranging for further examination of the Veteran, to ensure that all due process requirements are met, and that the record is complete, the RO/AMC should give the appellant another opportunity to provide information and/or evidence pertinent to the matters remaining on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO/AMC should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO or AMC of the responsibility to ensure full compliance with the duties imposed by the VCAA. Hence, in addition to the actions requested above, the RO/AMC should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. As indicated above, in adjudicating each claim, the RO/AMC should consider both direct and secondary service connection theories of entitlement. Accordingly, these matters are hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent records from the Veteran's message therapist, Dr. M., dated between October 2003 and October 2004. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA spine examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND (and copies of all pertinent records from Voirtual VA if the examiner does not have access) must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies (to include X- rays) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. As regards the cervical spine, and the lumbar spine, for each, the physician should clearly indicate all disability(ies) deemed to currently exist, or to have validly existed but resolved at point since the filing of the September 2004 claim-to include IVDS with radiculopathy (previously diagnosed). In discussing whether any lumbar and cervical disability(ies) exist(s/ed), the physician must consider and discuss the diagnoses and findings of the October 2004 QTC examiner-to include findings of paravertebral muscle spasm and decreased sensation in the right upper and right lower extremities. Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service. In rendering this opinion, the physician should consider and discuss the Veteran's reported in-service injury with continued back and neck pain since service. The physician should also consider and discuss the impact of the Veteran's reported injury and his duties carrying heavy equipment during service. Also for each diagnosed disability, an opinion must be rendered as to whether it is at least as likely as not that the disability was caused or is aggravated (i.e., worsened beyond natural progression) by either or both of the Veteran's service-connected knee disability(ies). If aggravation is found, the physician should attempt to quantify the additional disability resulting from aggravation. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, ensure that all requested 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, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims for service connection remaining on appeal in light of all pertinent evidence (to particularly include all that added to the record since the last adjudication), and legal authority (to include that governing both direct and secondary service connection theories of entitlement). 7. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes citation to and discussion of additional legal authority considered- to include 38 C.F.R. § 3.310-along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims files are returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish a further adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2012).