Citation Nr: 1331150 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-19 766 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for right leg radiculopathy. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for left leg radiculopathy. 3. Entitlement to service connection for right leg radiculopathy. 4. Entitlement to service connection for left leg radiculopathy. 5. Entitlement to service connection for a chronic blood disability manifested by abnormal bone marrow to include a myeloproliferative blood disorder. 6. Entitlement to service connection for a cervical spine disability. 7. Entitlement to service connection for a thoracic spine disability. 8. Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and a friend ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1979 and from November 1979 to August 1985. The Veteran also had a subsequent period of service with a reserve component. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the appeal current resides with the RO in Montgomery, Alabama. In October 2011 the Veteran and a friend testified at a personal hearing at the RO. In May 2013, the Veteran testified at a personal hearing before the undersigned also at the RO. Transcripts of both personal hearings have been associated with the claims file. At the May 2013 personal hearing, the Veteran specifically limited his applications to reopen and claims of service connection for right and left leg disabilities to claims for right and left leg radiculopathy. Accordingly, the Board has characterized these issues as they appear on the first page of this decision. See Hamilton v. Brown, 4 Vet. App. 528 (1993) ("where ... the claimant expressly indicates an intent that adjudication of certain specific claims not proceed at a certain point in time, neither the RO nor BVA has authority to adjudicate those specific claims, absent a subsequent request or authorization from the claimant or his or her representative"). After certification, the Veteran mailed additional private treatment records directly to the Board along with a waiver of agency of original jurisdiction (AOJ) review of this evidence. Therefore, the Board finds that it may adjudicate the appeal considering this evidence without first remanding it for AOJ review. See 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. An April 2004 rating decision denied the Veteran's claims of service connection for all right and left leg disabilities; the Veteran did not appeal that decision or submit new and material evidence within the one year appeal period. 2. Evidence received since the time of the final April 2004 rating decision is new, related to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for right and left leg radiculopathy. 3. The most probative evidence of record shows that a chronic blood disability manifested by abnormal bone marrow to include a myeloproliferative blood disorder is not related to service. 4. The most probative evidence of record shows that a cervical spine disability is not related to service and that arthritis of the cervical spine did not manifested itself to a compensable degree in the first post-service year. 5. The most probative evidence of record shows that a thoracic spine disability is not related to service and that arthritis of the thoracic spine did not manifested itself to a compensable degree in the first post-service year. 6. The most probative evidence of record shows that a lumbar spine disability is not related to service and that arthritis of the lumbar spine did not manifested itself to a compensable degree in the first post-service year. 7. The Veteran's right and left lower extremity radiculopathy is due to the Veteran's lumbar spine disability, which is not service connected. CONCLUSIONS OF LAW 1. The April 2004 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. Evidence submitted to reopen the claim of entitlement to service connection for right leg radiculopathy is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Evidence submitted to reopen the claim of entitlement to service connection for left leg radiculopathy is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 4. A chronic blood disability manifested by abnormal bone marrow to include a myeloproliferative blood disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101, 106, 1101, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303 (2012). 5. A cervical spine disability was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 101, 106, 1101, 1112, 1113, 1116, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 6. A thoracic spine disability was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 101, 106, 1101, 1112, 1113, 1116, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 7. A lumbar spine disability was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 101, 106, 1101, 1112, 1113, 1116, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 8. Right leg radiculopathy was not or caused or aggravated by a service connected disability. 38 U.S.C.A. §§ 101, 106, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.310 (2007); 38 C.F.R. §§ 3.6, 3.102, 3.159 (2012). 9. Left leg radiculopathy was not or caused or aggravated by a service connected disability. 38 U.S.C.A. §§ 101, 106, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.310 (2007); 38 C.F.R. §§ 3.6, 3.102, 3.159 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim. The appellant must also be notified of what specific evidence to provide and what evidence VA will attempt to obtain. VA likewise has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See 38 U.S.C. § 5103(a). As to the claims to reopen, given the fully favorable decision with respect to that specific question, the Board finds that discussion of the VCAA notice provided to the Veteran is unnecessary, since any deficiency in the timing or content of such notice would constitute harmless error. As to the service connection claims, the Board finds that the pre-adjudication letters the RO sent the Veteran in October 2006 and April 2007 provided him with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing the Veteran was assisted at the hearing by an accredited representative and the representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the appellant's current disabilities are related to his service and/or an already service connected disability. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or the representative that was not obtained. The hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence, including the Veteran's service treatment records, reserve component treatment records, and his post-service records. See 38 U.S.C.A. § 5103A(b). As to the claim of service connection for a lumbar spine disability, the Veteran was provided with a VA examination in April 2009 which is adequate to adjudicate the claim because after taking a detailed medical history from the claimant and after a review of the record on appeal as well as after conducting an examination the examiner provided an opinion as to the diagnosis and origins of the Veteran's lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As to the other service connection claims, the Veteran was not afforded VA examinations. Since only conclusory, generalized lay statement suggest a nexus between a current disability and service, the duty to provide an examination is not triggered. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claims to Reopen The RO initially denied service connection for all right and left leg disabilities in an April 2004 rating decision. The Veteran did not appeal the April 2004 rating decision. Moreover, the record does not show that the Veteran, following the rating decision, submitted medical documentation, lay statements, or other evidence constituting new and material evidence within the one-year appeal period. 38 C.F.R. § 3.156(b) (2012). Therefore, the Board finds that the rating decision is final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). The Board is required to give consideration to all of the evidence received since the first denial of the claims in the April 2004 rating decision in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, service connection may be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation also is payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The requirement of a current disability 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." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). With the above criteria in mind, the Board notes that the April 2004 rating decision denied the claims of service connection for right and left leg disorders because the record did not show that he had any right or left leg disorders. However, since the April 2004 rating decision, the Veteran's treatment records show he has left and right leg complaints diagnosed as radiculopathy. As this addresses a basis for the prior denial, the Board finds the treatment records are new and material evidence as defined by regulation. The claims of entitlement to service connection for right and left leg radiculopathy are therefore reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Service Connection Claims The Veteran and his representative claim that the appellant has a chronic blood disability manifested by abnormal bone marrow to include a myeloproliferative blood disorder; cervical, thoracic, and lumbar spine disabilities; as well as right and left leg radiculopathy due to his military service. It is also claimed that the Veteran's radiculopathies are caused by a service connected lumbar spine disability. In this regard, in writings to VA as well as his personal hearings the Veteran claimed that he had problems with back and legs while on active duty, including a problem with leg cramps, which problems were caused by the rigors of his training and that he had the same problems today that he did while on active duty. As to his blood disorder, he claimed that the venereal disease (VD) he was diagnosed with while on active duty was the first manifestation of his current blood disorder and/or the in-service diagnosis was in error and was in fact, his current blood disorder. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA), or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1131. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where all the evidence establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. However, these presumptive periods do not apply to ACDUTRA or INACDUTRA service. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). In order to establish service connection for the claimed disability, there must be probative evidence (1) of a current disability; (2) of in-service incurrence or aggravation of a disease or injury; and (3) 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). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). As noted above, service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). a. Chronic Blood Disability As to the claim of service connection for a chronic blood disability, the active duty records show no complaints or findings related to this, and it is not until 2004, that any such issue is noted. (April 2004 records show abnormal bone marrow density was observed on an MRI, which was thought could be due to myeloproliferative disorder. November 2004 records reflect the view this could be similar to sickle cell, although in May 2008 records, this finding was described as of unknown significance.) In any event, none of the records on which this is observed show it is thought to be related to service in any way or to a disease or injury incurred on an occasion of ACDUTRA or injury on an occasion when the Veteran was serving on INACDUTRA. As the Veteran is not shown to be competent to link such a disability to service, absent any medical records that do so, a basis upon which to establish service connection has not been presented. b. Cervical, Thoracic, and Lumbar Spine Disabilities As to the claims of service connection for cervical, thoracic, and lumbar spine disabilities, a service treatment record dated in July 1980 documents the Veteran's complaints and treatment for low back pain. Thereafter, the record, which includes a number of reserve component medical documents do not show any lumbar spine complaints until 2003, which were later linked to a work place injury. No medical record or otherwise competent source relates the Veteran's current lumbar spine problems to his military service. Indeed when examined in connection with this claim for VA purposes in April 2012, the examiner opined the Veteran's disorder was not related to service. Given the examiner's medical expertise, the Board accords this opinion greater probative value than the Veteran's contentions, since he is not shown to have any such training or experience. Accordingly, a basis upon which to establish service connection for a lumbar spine disability has not been presented. Cervical and thoracic spine complaints are not shown in the record prior to 2004. No competent source links any current disability to active service, or a disease or injury arising from an occasion of ACDUTRA or injury on INACDUTRA. (The Veteran is not shown to possess any medical expertise as would render him competent to offer a probative opinion on disease or disability etiology.) As such, the claims for service connection for thoracic and cervical spine disability are denied. c. Right and Left Leg Radiculopathy As to claims of service connection for right and left leg radiculopathy, the medical evidence of record shows that the Veteran's right and left leg radiculopathy are caused by a lumbar spine disability. However, the Veteran is not service connected for a lumbar spine disability. Therefore, since a condition precedent for establishing secondary service connection is the Veteran being service connected for the disability which is causing or aggravating the new disability, the Board finds that service connection for right and left leg radiculopathy must be denied. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.310; Allen, supra. In rendering this decision, the Board notes the Veteran's October 2011 testimony regarding injuring his legs in Germany in 1983, and the May 2013 Board hearing testimony regarding having leg difficulties in 1982 or 1983. Indeed, 1983 service treatment records generated from a Frankfurt Medical Center in Germany document the Veteran's repeated complaints and treatment for leg cramps diagnosed as muscle cramps. However, the records do not identify any injury; only that his legs cramped when running. The service treatment records also noted that there was no vascular insufficiency, and a February 1984 electromyography (EMG) was negative. In any event, the medical evidence of record shows that the Veteran's current leg disabilities, right and left leg radiculopathy, are caused by a lumbar spine disability. Accordingly, there is no basis to award service connection for radiculopathy as directly incurred in service. ORDER New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for right leg radiculopathy is reopened, and to that extent only, the appeal is granted. New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for left leg radiculopathy is reopened, and to that extent only, the appeal is granted. Entitlement to service connection for right leg radiculopathy is denied. Entitlement to service connection for left leg radiculopathy is denied. Entitlement to service connection for a chronic blood disability manifested by abnormal bone marrow to include a myeloproliferative blood disorder is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a thoracic spine disability is denied. Entitlement to service connection for a lumbar spine disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs