Citation Nr: 1328577 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 12-16 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Service connection for residuals of an injury of the low back. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1953 to January 1955. This case comes to the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA) that found that new and material evidence had not been received to reopen a claim of service connection for a low back disability. In a December 2012 decision, the Board granted the Veteran's application to reopen the claim of service connect, and remanded the matter to the Appeals Management Center (AMC), in Washington, DC for additional development. Such development has been conducted and the matter of service connection is now before the Board. A review of the Virtual VA paperless claims processing system reveals that the system includes documents that relate to the immediate appeal, specifically records of VA treatment. Such records are considered to be part of the claims file, and as such have been considered as part of the present appeal. In the introduction section of the Board's December 2012 decision it was noted that in the Veteran's December 2010 notice of disagreement, the Veteran had requested that a claim of service connection for a scar under the right eye be reopened and also claimed service connection for a dental disability. These matters were referred, not remanded, for initial adjudicated by the applicable Agency of Original Jurisdiction (AOJ). To date, these matters still remain unaddressed and the Board again refers them to the applicable AOJ for action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran sustained an in-service injury of the back. 2. Low back symptomatology has been continuous since service. 3. The Veteran has low back arthritis. CONCLUSION OF LAW The criteria for service connection for low back arthritis are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting, in full, the benefit sought on appeal. Accordingly, because the benefit sought is granted, VA has no further duty to notify or assist. Service Connection for Residuals of an Injury of the Low Back According to a September 1992 letter from the director of the National Personnel Records Center (NPRC), it has been determined that the Veteran's records are "fire-related," indicating that some service treatment records may have been destroyed in a 1973 fire at the NPRC in St. Louis, Missouri. The Board notes that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). 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 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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). 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). In this case, the Veteran is diagnosed with arthritis of the low back, and arthritis is a "chronic disease" which is listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred 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 in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, including arthritis, become 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). 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. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Here, while back pain and other symptoms of arthritis are capable of lay observation, arthritis itself is not. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Lay evidence can be competent and sufficient evidence of a diagnosis 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). When there is an approximate balance in the 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. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran contends to have injured the low back during service in Korea. The Veteran has specifically endorsed having fallen in-service while doing demolition and construction work, and that his low back disorder due to cold weather exposure during service. Additionally, the Veteran has stated that low back symptomatology has been present ever since service. The Board finds that, resolving doubt on the Veteran's favor, the Veteran did sustain a low back injury in service. Service treatment records include treatment referable to the teeth and eye, but do not include any complaints of back problems or a back injury. On separation examination in January 1955, the Veteran's spine was "normal." The Veteran separated from service in January 1955, and that same month filed a claim of service connection for a "back condition" which he attributed to an injury in Chun Chon (Chuncheon), Korea in April 1954. Multiple searches by VA in January, March and April 1955 failed to reveal any records of in-service or post-service treatment of the back at any VA facility. In a 1981 claim regarding the low back, the Veteran endorsed injury in Inchon, Korea in December 1954, and subsequent treatment at a VA facility in 1955. A September 1990 letter from a private chiropractor indicated that the Veteran had been treated at the chiropractor's office for "chronic lower back disorders and degenerative disc disease." An October 1992 letter from an Army physician indicated that the Veteran had sustained an injury of the back in December 1954 in Korea. An April 1992 letter from a private chiropractor indicated that the Veteran had been examined and treated for a chronic lumbar spinal disorder. The chiropractor opined that "in light of the extensive disc and osseous degeneration of [the Veteran's] lumbar spine as well as the myofascial instability" the Veteran was unable to perform his regular job. The Board notes that the chiropractor has the same last name as the Veteran, and it was subsequently noted that the chiropractor is the Veteran's nephew. Te Board finds the statement to be probative to the extent that it identifies the nature of the Veteran's back disorder. An November 1992 record of private treatment indicates X-ray evidence of moderate degenerative arthritis. The Veteran presented with a history of progressive back problems, dating to the Korean War. The Veteran was able to walk, but with a slightly halting, jerky, side to side gait. When bending over to pick up a shoe, the Veteran visibly grimaced. The physician opined that the Veteran had "significant lumbosacral arthritis". In April 1994, the Veteran reported to a VA physician a history of low back pain "since back frozen" in Inchon, Korea in 1954. Since that time pain had become worse in severity. VA X-ray imaging in June 1994 revealed mild degenerative changes in the lower lumbar spine. On VA treatment in March 1995, the Veteran endorsed low back pain for "many years." Mild degenerative changes of the lower lumbar spine were noted, and pain was stable. On VA treatment in October 2007, the Veteran endorsed mild pain over the back, but did not request treatment. On VA treatment in March 2009, the Veteran endorsed stable, chronic back pain. A January 2011 statement from the Veteran's private family physician indicates that the Veteran relates current back symptoms to an in-service injury, and the physician felt "strongly that this patient should be treated as such." The physician's statement included no rationale, no statement of the nature of the in-service injury, and no description of the Veteran's current back disorder. On VA examination in January 2013, the examiner indicated that the Veteran had degeneration of lumbar or lumbosacral intervertebral discs, and spinal stenosis of the lumbar region without neurogenic claudication. The Veteran told the VA examiner that that the onset of low back pain dated to an in-service fall while doing demolition or construction work in South Korea around August 1954. The Veteran indicated that he injured his right eye and broke his front teeth in the same fall. The Veteran also stated that while sleeping on a malfunctioning air mattress in temperatures reaching 40 degrees below zero, his back "froze." Following separation from service, the Veteran spent three weeks at a VA facility and "exploratory back surgery" was recommended. The Veteran was concerned about the risk of paralysis, however, and declined to have the surgery. The Veteran endorsed the use of assistive devises, including a cane, since his early 30s; a cane was used at all times when outside the home. The VA examiner reviewed imaging from November 2012, and noted multilevel degenerative disc disease and foraminal stenosis from L2-3, L3-4 and L4-5. There was also right side lumbar scoliosis, L4-5 anterolisthesis, and L5-S1 retrolisthesis. The examiner concluded that the Veteran's low back disorders were less likely than not incurred in or caused by the claimed in-service injuries. In so concluding, the examiner recognized that the Veteran had a long history of nonsurgical treatments including during the purported three week stay at a VA facility in 1955. The VA examiner stated that the in-service fall likely resulted in temporary musculoskeletal pain, as reflected by the Veteran's claim for service connection immediately following separation. However, the examiner noted that "the first documented radiology report" relating to the back was not until 1994. The examiner stated that although radiographic imaging from 2012 and 2013 showed significant multilevel spinal stenosis and degenerative disc disease, these findings were "more likely from the progression of the natural degenerative process, and not traumatic in origin." After reviewing additional medical records, a different VA examiner offered an addendum opinion in July 2013. The examiner noted in particular the June 1994 VA radiographic evidence of "only" mild degenerative changes "almost 40 years" after the in-service fall. The examiner did not comment on the April 1992 radiology report of significant lumbosacral arthritis, and in fact stated that the 1994 evidence was "the first documented radiology report" since the Veteran left service. As both VA examination opinions failed to recognize the 1992 X-ray evidence, the Board concludes that the examinations were based on inaccurate factual histories, and are therefore of no probative value. While the Veteran's service treatment records do not reflect treatment for the back during service, the Veteran has consistently stated that an in-service injury occurred in 1954. Although the Veteran's report of some of the specific details of the injury has wavered slightly, the Veteran has maintained the primary contention for nearly 60 years. Furthermore, that the Veteran first filed a claim of service connection for the back the very same month that he was discharged from service is highly probative. It is unfortunate that records of treatment at a VA facility in 1954 or 1955 cannot be located, however the Veteran is competent to report having been hospitalized and the Board finds the Veteran's statement to that effect to be credible. The Veteran is also competent to report continuous symptomatology since the in-service injury, as back pain is capable of lay-observation. Layno v. Brown, 6 Vet. App. 465 (1994). Here too, the Veteran has been highly consistent in reporting unremitting symptomatology. The Veteran first claimed service connection related to back symptoms in 1955; then submitting claims for service connection again in 1981 and 1990. Furthermore, the Veteran has endorsed continuous back symptomatology even when reporting such symptoms for private treatment purposes having nothing to do with a claim for VA compensation, such as in November 1992. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). Again, where the evidence shows continuous symptoms of a "chronic disease" under 38 C.F.R. § 3.309(a) after service, the disease shall be presumed to have been incurred in service. Here, the competent credible evidence shows an in- service injury followed by continuous symptomatology and a current diagnosis of arthritis, a "chronic disease." While VA examination reports indicate the current low back arthritis is not related to service, such reports carry no probative weight for the reasons discussed above. Thus, there is no probative evidence to rebut the presumption of in-service incurrence of the claimed back disorder. Accordingly, resolving doubt in the Veteran's favor service connection is established. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for arthritis of the low back is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs