Citation Nr: 1329745 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 09-27 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a low back disability other than chronic lumbosacral strain, to include spinal stenosis and spondylosis, and to include as secondary to service-connected left knee disability and/or chronic lumbosacral strain. 2. Entitlement to an effective date prior to February 6, 1992, for the assignment of separate 10 percent evaluations for degenerative joint disease and instability of the left knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1984 to December 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted a separate 10 evaluation for degenerative joint disease of the left knee effective May 23, 2002, to implement a June 2007 Board decision; and a May 2008 rating decision from the New Orleans RO, which denied service connection for spinal stenosis. In July 2007, the Veteran submitted a notice of disagreement (NOD) with the effective date assigned for the grant of the separate 10 percent evaluation for the left knee. In June 2008, he submitted an NOD with the denial of service connection for spinal stenosis. He subsequently perfected his appeal of both issues in July 2009. In March 2010, the Veteran presented sworn testimony during a video conference hearing in New Orleans, Louisiana, which was chaired by the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In a February 2012 rating decision, the Appeals Management Center (AMC) granted an earlier effective date of February 6, 1992, for the grant of separate 10 percent evaluations for the Veteran's service-connected left knee disability. However, as the Veteran is seeking an effective date earlier than February 6, 1992, this is only a partial grant of the benefits on appeal. Accordingly, the Veteran's claim for an effective date earlier than February 6, 1992, for the grant of separate 10 percent evaluations for his service-connected left knee disability remains before the Board. The issue of entitlement to an effective date prior to February 6, 1992, for the assignment of separate 10 percent evaluations for degenerative joint disease and instability of the left knee is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDING OF FACT The preponderance of the evidence is against a finding that a low back disability other than chronic lumbosacral strain is the result of a disease or injury in active duty service or a service-connected disability. CONCLUSION OF LAW A low back disability other than chronic lumbosacral strain was not incurred in or aggravated by active service or by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in January 2008 of the criteria for establishing service connection, including on a secondary basis, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. The January 2008 letter also notified him of how VA determines disability ratings and effective dates. This letter accordingly addressed all notice elements. Nothing more is required. VA's duty to assist has also been satisfied. The Veteran's service treatment records, VA treatment records, and VA examination reports are in the file. Private treatment records identified by the Veteran have been obtained, to the extent possible. No outstanding evidence has been identified that has not otherwise been obtained. The record indicates that the Veteran underwent VA examinations to evaluate his spinal stenosis in August 2010 and January 2012 with a January 2012 addendum opinion. The reports from those examinations and copies of the addendum opinion have been included in the claims file for review. The examinations and opinion involved a review of the claims file, a thorough examination of the Veteran (examinations only), consideration of the Veteran's lay statements/history, and conclusions that were supported by sufficient rationale. Therefore, the Board finds that the examinations and opinion, taken together, are adequate for to decide the spinal stenosis claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Some discussion of the Veteran's March 2010 personal hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issues on appeal were identified. Information was also elicited from the Veteran concerning his contentions regarding the etiology of his spinal stenosis. Notably, the Veteran's testimony triggered the Board's decision to remand the matter to obtain the above referenced VA examinations/opinion. In July 2010, the Board remanded the Veteran's claim of entitlement to service connection for spinal stenosis to the AMC for further evidentiary development, including providing the Veteran with a VA examination for his spinal stenosis claim. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC provided the Veteran with new VA spine examinations in August 2010 and January 2012 with a January 2012 addendum opinion. Accordingly, all remand instructions issued by the Board and relating to the spinal stenosis claim have been complied with and this matter is once again before the Board. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran claims that his spinal stenosis is the result of his military service and/or his service-connected chronic lumbosacral strain with limitation of motion and/or left knee disability. Therefore, he believes service connection is warranted on a direct or secondary basis. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 39 C.F.R. § 3.310(b) (2012); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Post-service VA and private treatment records show diagnoses of low back disorders other than his already service-connected chronic lumbosacral strain, including mild to moderate stenosis of the left intervertebral foramen, mild stenosis of the right intervertebral foramen, mild to moderate spondylosis at L5-S1, mild spondylosis at L4-L5, and degenerative joint disease of the lumbar spine. As such, the first elements of Hickson and Wallin are met. A review of the service treatment records is negative for any diagnoses of spinal stenosis or other degenerative changes of the lumbar spine. However, the service treatment records do show complaints of low back pain, which were the basis of the grant of service connection for lumbosacral strain. Additionally, the Veteran is service-connected for chronic lumbosacral strain with limitation of motion, left knee chondromalacia with degenerative joint disease, and left knee instability. As such, the second elements of Hickson and Wallin are met. Although an in-service injury/service-connected disability and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's reported in-service complaints or service-connected low back and/or left knee disability and his current low back disability other than chronic lumbosacral strain. See Hickson, supra. The Veteran first underwent a VA examination in conjunction with his instant claim in August 2010. At the time, he complained of left low back pain with tingling in the posterior thigh, calf, and medial foot. The examiner noted the Veteran's in-service low back complaints and service-connected disabilities and diagnosed him with mild spondylosis at L5-S1 and moderate spondylosis and left side stenosis at L4-L5 with disc protrusion. He concluded that the Veteran's lumbar spine disabilities, other than chronic lumbosacral strain, were not related to his military service or service-connected left knee disability because earlier x-rays would have shown degenerative changes if they were related to his in-service complaints or service-connected left knee disability. The examiner further noted that the Veteran's x-rays have consistently looked better than most people his age. Given the lack of radiation of pain to the extremities until the early 2000s, 15 years after his separation from service, the examiner was unable to link the Veteran's low back arthritis to his military service or service-connected left knee disability. The Veteran was more recently examined in January 2012. The January 2012 examiner also diagnosed the Veteran with degenerative joint disease of the lumbar spine. He concluded that this diagnosis was not related to the Veteran's military service or left knee disability for the same reasons as the August 2010 examiner. In an addendum opinion, the January 2012 examiner further explained that post-traumatic conditions show localized severe changes at the point of injury. Conversely, age-related causes show generalized mild changes. In the Veteran's case, his lumbar spine imaging revealed generalized mild changes which were consistent with an age-related cause, not a traumatic cause. He also noted that the Veteran's lumbar spine degenerative changes were, in fact, better than most people his age. The medical evidence also includes private and VA treatment records. These records show the Veteran's diagnoses of lumbar spine stenosis, spondylosis, and degenerative changes and are generally consistent with the VA examinations. However, none of the treatment records link the Veteran's lumbar spine degenerative changes or any other low back disability (other than his service-connected chronic lumbosacral strain) to his military service. The only other evidence which purports to link the Veteran's current low back disability, other than chronic lumbosacral strain, to his military service or service-connected disabilities consists of the statements of the Veteran and his representative. However, for the same reasons previously discussed, the lay opinions of the Veteran and his representative lack the competence to relate the Veteran's current lumbar spine arthritis to his active service or service-connected disabilities. Neither individual is shown to have the expertise or training necessary to provide a medical nexus opinion. The Board is also aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. The Veteran complains of low back pain since service. The VA examiners considered these complaints in forming their opinions. However, while they acknowledged his complaints of low back pain since service, they still found that his current diagnosis of arthritis was not related to his active service. Rather, his complaints of low back pain in the 15 years from separation from service until his diagnosis of lumbar spine arthritis have been attributed to and compensated for as service-connected chronic lumbosacral strain. As such, the Board finds that the medical nexus element of Hickson also cannot be met via continuity of symptomatology. As explained above, the more competent, probative, and persuasive medical evidence of record does not demonstrate that there is a relationship between the Veteran's active duty service or service-connected low back or left knee disabilities and his current lumbar spine arthritis. Although the Board notes the Veteran's current disability and in-service complaints/service-connected disabilities, without sufficiently probative evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for a low back disability, other than chronic lumbosacral strain, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for a low back disability other than chronic lumbosacral strain is denied. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of his claim of entitlement to an effective date prior to February 6, 1992, for the assignment of separate 10 percent evaluations for degenerative joint disease and instability of the left knee. After the Board's July 2010 remand, the AMC obtained VA treatment records, dated from March 1990 to October 1992, which have not previously been considered by the Agency of Original Jurisdiction (AOJ). Although the AMC issued a rating decision partially granting the Veteran's benefits on appeal for this claim, the AMC failed to provide the Veteran and his representative with a supplemental statement of the case (SSOC). Under 38 C.F.R. § 19.31(c), the AMC is to issue an SSOC when, pursuant to a Board remand, it develops evidence or cures a procedural defect. The only exceptions allowed for by the regulation are if: (1) the only purpose of the remand is to assemble records previously considered by the agency of original jurisdiction and properly discussed in a prior statement of the case (SOC) or SSOC, or (2) the Board specifies in the remand that a SSOC is not required. 38 C.F.R. § 19.31(c) (2012). In this case, the AMC developed further evidence in the form of additional VA treatment records. Further, neither of the above-mentioned exceptions is met, as the new evidence has not been previously considered and discussed in an SOC or SSOC and the Board remand did not specify that an SSOC was not required. As such, this claim must be remanded for the AMC to provide the Veteran and his representative with an SSOC in compliance with 38 C.F.R. § 19.31(c). Accordingly, the case is REMANDED for the following action: After completing any notification or development deemed necessary, the Veteran's claim of entitlement to an effective date prior to February 6, 1992 for the assignment of separate 10 percent evaluations for degenerative joint disease and instability of the left knee should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative, and after they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs