Citation Nr: 1330480 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 00-23 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for disability claimed as meningismus, to include residuals thereof. 2. Entitlement to service connection for bilateral inguinal hernia. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a low back disability, to include herniated discs at L2-3 and L4-5. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The appellant's personnel records, including a DD Form 214, reflect that he enlisted in the Puerto Rico National Guard in December 1965, and was ordered to initial active duty for training in January 1967. He remained on initial active duty for training until June 1967 when he was transferred back to his National Guard unit. He continued as a member of the Puerto Rico National Guard until December 1977, reenlisted in August 1979 and remained in the National Guard until 1989. Although the record shows that the appellant was discharged from the National Guard in June 1989, he also served in the Army Reserves thereafter with additional periods of inactive duty training until 1997. He had no periods of active duty for training after his National Guard discharge in June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The case was initially remanded back to the RO in December 2005 to afford the appellant a personal hearing before a Veterans Law Judge based on the appellant's July 2004 request for such a hearing. After the case was returned to the RO, the appellant withdrew his hearing request and the case was returned to the Board. In May 2007, the Board reopened a previously denied claim of service connection for meningismus, and remanded that issue, along with the other issues on appeal, back to the RO for additional development of the record. In July 2012, the Board denied the appellant's claim of service connection for colon cancer, and remanded the remaining issues on appeal back to the RO for additional development of the record. Before the case was returned to the Board, the RO issued a rating decision in February 2013 which granted service connection for residuals of acute respiratory distress, and assigned a noncompensable rating effective from July 14, 1998. Accordingly, the service connection matter has been resolved. In March 2013, the RO issued a Supplemental Statement of the Case (SSOC) which addressed the 4 remaining issues on appeal as reflected on the cover page of this decision. The issue of entitlement to service connection for a bilateral inguinal hernia and meningismus, to include residuals thereof, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's hypertension is not shown to be due to an injury or disease incurred during a period of active duty for training. 2. The Veteran's low back disability is not shown to be the result of any disease or injury during a period of active duty for training or an injury during inactive duty for training, nor is aggravation shown. CONCLUSIONS OF LAW 1. Hypertension was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.159, 3.303 (2012). 3. A back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The appellant's initial claims of service connection for hypertension and a back condition were denied in October 1997. These denials were confirmed and continued in a July 1998 decision, along with initial denials of service connection for bilateral inguinal hernia and a denial of service connection for meningismus. These above decisions were issued prior to the establishment of the current law and regulation governing VAs duties to notify and assist the appellant with the development of his claim. Thus, it would have been impossible for the RO to provide an adequate duty to assist letter prior to the initial adjudication of the claim. However, multiple duty-to-assist letters have been sent to the appellant during the course of the appeal since the current law was enacted in November 2000. These letters have provided the appellant with information concerning how to substantiate his claim and the allocation of responsibilities between himself and VA. These letters have been followed by several supplemental statements of the case, including the most recent one dated in March 2013. The appellant has been given every opportunity to substantiate his claims. Chronologically, the RO issued its first comprehensive duty-to-assist letter to the appellant in October 2003, after the appellant appealed the RO's July 1998 determination to the Board, but before the case had been certified to the Board on appeal. This notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim for service-connection, and the relative duties of VA and the claimant to obtain evidence. The appellant submitted additional private records to the RO and they were associated with the claims file. The RO subsequently issued several SSOCs, dated in March 2004, April 2004, and June 2004 addressing this new evidence. The appellant continued to submit additional argument and evidence concerning his appeal, some of which was duplicative of evidence already received. In addition, the appellant requested to appear at a Board hearing before a Veterans Law Judge. The case was remanded back to the RO in December 2005 to honor that request; however, the appellant subsequently withdrew this hearing request. Additional SSOCs were issued to the appellant in March 2006, June 2006 and July 2006 addressing additional evidence added to the claims file since June 2004. In March and September of 2006, the RO issued additional duty-to-assist letters in compliance with the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). The letters notified the appellant of how initial disability ratings and effective dates are assigned for all grants of service connection. The claims were remanded in May 2007 for additional development of the record. Pursuant to the May 2007 remand directives, the RO sent the appellant a duty-to-assist letter in May 2007 that specifically notified the appellant of the current status of his claims; and that the RO was requesting records from the Puerto Rico National Guard. Additional personnel records were received and associated with the claims file. There were however no additional service treatment records according to a letter dated in August 2007 from the National Guard. In January 2009, the appellant was informed by letter that records, including treatment records, had been requested from the Puerto Rico National Guard but that it was his responsibility to see that the VA received it. He was provided with a 30-day period in which to provide the information and evidence and was informed that VA could decide the claim within 30 days after attempts to obtain relevant evidence were complete. The July 2009 SSOC notified the appellant that no additional records were obtained. Additional medical evidence was also added to the claims file, including a VA examination of the brain and spinal cord, dated in July 2007 and an August 2007 MRI of the appellant's lumbar spine. The appellant also submitted additional VA and private treatment records, much of which was previously secured. As noted above, a SSOC was subsequently issued in July 2009. Additional medical evidence was thereafter received at the Board, but the appellant waived RO consideration of this evidence in the first instance. The Board remanded the case in June 2012, in part, because medical opinions were necessary in order to decide the claims. VA medical opinions were obtained in October 2012 and March 2013. The opinions are adequate because they were based on a review of the history, examinations and as a rationale was provided. VA has obtained service treatment and personnel records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the etiology of his disabilities, and afforded the Veteran the opportunity to give testimony before the Board. Additional records were submitted by the Veteran after the case was recertified to the Board. The records were submitted with a waiver of AOJ review. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. In light of the above, the RO has substantially complied with the remand directives to the extent possible and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Furthermore, no useful purpose would be served in remanding these matters for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Thus, the Board may proceed without prejudice. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table). Insofar as the appellant presents an argument of continuity of symptomatology, the U.S. Court of Appeals for the Federal Circuit recently held in Walker v. Shinseki that service connection can be based on continuity of symptomatology only with respect to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir. 2013). Moreover, the presumption of service connection is not applicable to periods of active duty for training and inactive duty for training. See Smith v. Shinseki, 24 Vet. App. 40 (2010). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes active duty, any period of active duty for training (ADT or ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (IDT or INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 1106; 38 C.F.R. § 3.6(a). For veterans who have achieved "veteran" status through a prior period of service, as is the case here, and claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness at entry applies ONLY when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). Thus a claimant who has "veteran" status through a prior period of active duty and wishes to apply for a disability that was incurred during a period of ACDUTRA must have had an examination prior to entering the period of ACDUTRA during which the injury or disease occurred for the presumption of soundness to apply. The examination must reveal no preexisting disabilities. 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). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). In determining whether service connection is warranted for a claimed disability, VA adjudicators have the responsibility of determining whether the evidence supports the claim or is in relative equipoise (i.e., about evenly balanced for and against the claim), with the Veteran prevailing in either event. Conversely, the claim will be denied if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All reasonable doubt is resolved in the Veteran's favor. 38 CFR § 3.102. Hypertension With regard to the appellant's claim of service connection for hypertension, it appears that the first diagnosis of hypertension in the record comes from a VA examination in December 1976. This examination report notes three high blood pressure readings of 130/110, 130/100 and 140/110. The diagnosis was hypertension. A July 1984 retention examination and a May 1988 quadrennial examination do not indicate that the appellant has high blood pressure, nor do they report any incidence of hypertension. An April 1997 private memo from the appellant's doctor notes that he had long standing arterial hypertension. A July 2004 memo from one of the appellant's private doctors notes that the appellant had a long standing history of arterial hypertension that was well-controlled with medical therapy and there was no clinical evidence of heart failure. An October 2012 VA examination report notes a current diagnosis of hypertension that was diagnosed in 1975. The examiner indicated a review of the claims file and opined that the Veteran's hypertension was not incurred during active service as the claims folder was silent for the diagnosis or treatment of hypertension during active service. Here, the evidence of record does not show an onset of hypertension during a period of ADT. The Veteran continues to provide medical evidence in an attempt to support his claim, but this evidence only shows that the Veteran currently has hypertension. The evidence of record does not support a finding of in-service incurrence. As a result, the preponderance of the evidence is against the claim and service connection for hypertension is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. Back With regard to the claim of service connection for a low back disability, the record does not show that the appellant underwent any specific injury during a period of active duty for training or inactive duty for training that is related to any current back disability. A March 1997 private MRI of the lumbar spine shows multiple likely significant findings, but most prominent was disc herniation at L2-3 and at L4-5. A private treatment record from January 1999 notes that the appellant injured his lower back when he slipped on the floor, although it is not clear whether that injury was an initial injury or whether it was an aggravation of a previous injury. By June 1999, a private MRI revealed that the appellant had disc bulging involving all of the intervertebral spaces of the lumbar spine. The appellant has submitted numerous statements and current treatment records showing the current back disability; however, no competent evidence suggests that the Veteran has a current back disability that is related to any injury in service. A VA examiner in October 2012 indicated a review of the Veteran's claims file, and opined that the Veteran's current back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that there was no evidence of any spondylosis or back strain during service or within a year following discharge from service. The Veteran reported that he was injured in Panama and provided information as to service in Panama in the 1980s in a February 1999 statement. He reported that heavy lifting caused his pain, that he did not go to sick call, and that he had pain in his back since service. A medical record dated in December 1983 indicates that the Veteran sprained his back on December 24, 1983. However, the records from this medical provider dating into the 1990s do not thereafter reflect that the Veteran had a back disorder. In addition, the service personnel records show that he was not on ACDUTRA on December 24, 1983. The Veteran is competent to report that he had pain during ACDUTRA, that he was required to perform heavy lifting, and that he has had pain since then. However, he is not competent as a lay person to provide an etiological opinion for currently diagnosed spondylosis and back strain. This is a matter that is beyond the capability of a lay person to observe. Accordingly, the medical opinion which was based on an examination and review of the history outweighs the Veteran's statements. The competent evidence does not show that the Veteran has a back disorder that was incurred or aggravated in ACDUTRA, including any such service in Panama, or an injury that was incurred or aggravated during INACDUTRA. For these reasons, the preponderance of the evidence is against the claim for service connection for a low back disability and the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. (CONTINUED ON NEXT PAGE) ORDER Service connection for hypertension is denied. Service connection for a low back disability, to include herniated discs at L2-3 and L4-5, is denied. REMAND The appellant seeks service connection for meningismus. The Veteran essentially asserts that he has residual disabilities as a result of his viral upper respiratory infection, identified as meningismus in service. These disabilities include schizophrenia, COPD and asthma. In light of the assertions, the Veteran was scheduled for VA psychiatric and central nervous system examinations in October 2012. According to the record, the Veteran failed to report to both examinations. Although the Veteran appeared for other VA examinations in October 2012, the Veteran did not show for the psychiatric or central nervous system examinations scheduled on his behalf and the Veteran has not provided any good cause for his failure to report. Nonetheless, there is no indication in the claims file that the Veteran was properly notified of the examinations. Given the fact that the Veteran did show up for his other examinations, it is possible that the Veteran was not provided with adequate notice regarding the psychiatric and central nervous system examinations. At this juncture, it is simply unclear from the record whether the Veteran actually received notice of the previous VA examinations. In addition, while a medical opinion was obtained as to the hernia claim, the examiner indicated that the surgery for the hernias in 1983 was years after his service. However, the personnel records reflect that the Veteran has service after 1983. Accordingly, an addendum should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum from the examiner who provided the March 2013 addendum concerning the appellant's claim for bilateral inguinal hernias. The claims folder should be made available to and reviewed by the examiner. If the original examiner is not available, the claims folder should be forwarded to another qualified examiner. The examiner should render an opinion as to whether it is more likely than not (meaning likelihood greater than 50%), at least as likely as not (meaning likelihood of at least 50%), or less likely than not or unlikely (meaning that there is a less than 50% likelihood) that the appellant's inguinal hernias resulted from a disease or injury incurred or aggravated during active duty for training or whether it resulted from an injury incurred or aggravated during inactive duty for training. In this regard, it is noted that the examiner found the hernias were not related to service since the surgery in 1983 was years after service. The examiner's attention is directed to the service personnel records which reflect that the Veteran had initial active duty for training from January 1967 until June 1967 when he was transferred back to his National Guard unit. The Veteran then was a member of the Puerto Rico National Guard until December 1977, reenlisted in August 1979 and remained in the National Guard until 1989. Although the record shows that the appellant was discharged from the National Guard in June 1989, he also served in the Army Reserves thereafter with additional periods of inactive duty training until 1997. He had no periods of active duty for training after his National Guard discharge in June 1989. The rationale for all opinions expressed should be provided in the addendum. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of the disability claimed meningismus, to include any residuals thereof, such as a psychiatric disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner should indicate whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran has meningismus or residuals thereof, including a psychiatric disorder, that was incurred during a period of active duty for training, to include as a result of the documented meningismus and/or the viral respiratory infection in service. The examiner's attention is directed to the December 2009 medical statement of Dr. F indicating that the stress of the infection in service can contribute to the development of schizophrenia. It is noted that residuals of respiratory distress as a result of the viral infection has already been service-connected and that a VA provider has already opined as to whether there is a relationship between cognitive impairment and the viral infection in service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) 3. In the event that the Veteran does not report for the scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. 4. Thereafter, the RO should undertake any additional development action that is deemed warranted and readjudicate the claims. If any claim remains denied, the RO should issue a supplemental statement of the case to the appellant and his representative and provide them with an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs