Citation Nr: 1333208 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-16 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for left leg numbness. 3. Entitlement to service connection for left arm numbness. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from August 2004 to December 2004 and active duty from October 2007 to June 2008 with periods of verified service with the with the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In that decision, the RO, among other things, denied service connection for left leg numbness, left arm numbness, and lumbar levoscoliosis and spondylosis, claimed as a low back injury. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals additional files, including VA treatment records dated from June 2010 to March 2013 and a compensation and pension examination for the Veteran's knees and legs. However, the documents are either duplicative and/or cumulative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of shin splints has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Spondylosis of the lumbar spine was manifest to a compensable degree within one year of separation from service. 2. Levoscoliosis is attributable to service. 3. The Veteran does not have left leg numbness due to a disease or injury. 4. The Veteran does not have left arm numbness due to a disease or injury. CONCLUSIONS OF LAW 1. Spondylosis is presumed to have been incurred in wartime service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2013). 2. Levoscoliosis was incurred in wartime service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). 3. Left leg numbness was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 4. Left arm numbness was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In regard to the claim for service connection for spondylosis, the action taken herein below is favorable to the Veteran, and therefore a discussion of VCAA is not required at this time. In regard to the claim for service connection for left arm numbness and left leg numbness, proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was provided all required VCAA notice in an October 2008 letter, prior to the initial adjudication of the claim in April 2009. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records post-service VA treatment records. The Board notes that the Veteran indicated in his VA Form 9 that he has treatment records from an orthopedic physician which prove he has left arm and left leg numbness. However, he also stated that VA is in possession of these records. There is therefore no duty for VA to obtain these records. In addition, the Veteran was provided with a VA contract examination in January 2009. As the examination included a review of the pertinent medical history, clinical findings, diagnoses, and was supported by medical rationale, the Board finds that the evidence is adequate to make a determination on this claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for service connection are thus ready to be considered on the merits. General Legal Principles As an initial matter, the Board notes that the Veteran does not allege, and the evidence does not reflect, that the disabilities for which he claims entitlement to service connection are the result of participation in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may also be granted for a disease first 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Low Back Disability The Veteran contends that he currently has a low back disability as a result of falling down the stairs while in active service. The Board notes that every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment. 38 U.S.C.A. § 1111. The term "noted" denotes only such conditions that are recorded in examination reports. 38 C.F.R. § 3.304(b)(1). The Veteran's service treatment records show he was involved in a motor vehicle accident in May 2003, prior to service. Upon enlistment in August 2004, the examiner noted that the Veteran sought treatment for his spine after the accident and was released from care because the condition improved. On clinical evaluation, the examiner noted that the Veteran's spine was "normal." The Veteran also denied any fractures, burns, or contusions as a result of the motor vehicle accident. Any injuries sustained by the Veteran as a result of the motor vehicle accident, therefore, appear to have been resolved prior to service. As such, no current back disorders were "noted" upon enlistment and the Veteran is presumed sound upon entry. 38 U.S.C.A. § 1111. As noted above, for veterans who had active service of 90 days or more during a period of war or after December 31, 1946, certain chronic diseases that manifest to a degree of 10 percent or more in a specified period of time will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112 (West 2002 & Supp. 2013); 38 C.F.R. § 3.307(a) (2013). 38 C.F.R. § 3.307(a)(1). The factual basis may be established by medical evidence, competent lay evidence or both. 38 C.F.R. § 3.307(b) (2013). Medical evidence should set forth the physical findings and symptomatology elicited by examination within the applicable period. Id. Arthritis is one such chronic disease and the presumptive period for the disease is one year. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a) (2013). The term "arthritis" encompasses degenerative joint disease, osteoarthritis. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (32nd Ed. 2012) at 150. Spondylosis is defined as "a general term for degenerative changes due to osteoarthritis." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (27nd Ed. 1988) at 1567, cited in Hawkins v. Peake, No. 05-3416, 2007 WL 4696828 (Vet. App. Dec. 21, 2007) (mem. dec.); See also Lay v. Shinseki, 08-3938, 2010 WL 4139877 (Vet. App. Oct. 22, 2010) (mem. dec.) (the use of a dictionary citation is not necessarily a violation of Hatlestad v. Derwinski, 1 Vet.App. 213 (1992), and Colvin v. Derwinski, 1 Vet.App. 171 (1991) ; See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). The Veteran was afforded a VA contract examination in January 2009. Upon examination, the Veteran reported he has constant low back pain with stiffness and numbness. He further reported the onset was approximately three years prior when he slipped and fell down a flight of stairs during active service. The Veteran described the pain as crushing, squeezing, aching, oppressing, sharp, sticking, and cramping. Upon physical examination, the examiner noted the Veteran's range of motion was limited after repetitive use due to pain. The examiner further noted inspection of the spine revealed normal head position with symmetry in appearance and symmetry of spinal motion with normal curves of the spine. Diagnostic testing revealed mild rotary levoscoliosis of the lumbar spine with associated minimal diffuse spondylosis. In this case, the Veteran currently has diagnostic tests which confirm he manifested spondylosis by January 2009, within one year of separation from service in June 2008. The examiner noted that the joint function of the spine was limited by pain after repetitive use. The spondylosis has thus manifested to a compensable degree. See 38 C.F.R. § 4.59. As spondylosis is a type of arthritis and it manifested to a compensable degree within one year of separation, it is presumed that the Veteran's spondylosis was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2013); 38 C.F.R. § 3.307(a) (2013). The presumption of incurrence of such disease during service can be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113(a). Such rebuttal evidence will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. 38 C.F.R. § 3.307(d). The expression "affirmative evidence to the contrary" will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. Id. The evidence of record reflects that the presumption has not been rebutted. A review of the Veteran's service treatment records show that he sustained injuries to his back when he fell down four to five steps in May 2008. Thereafter, in May 2008, he was put on a temporary physical profile limiting his activities as a result of his low back pain. Upon examination in January 2009, the Veteran reported back pain since May 2008 when he fell down the stairs. The evidence weighing against the claim consists of the January 2009 VA examiner's opinion which states that the spondylosis is associated with the Veteran's scoliosis. The examiner, however, did not provide any rationale or basis for that conclusion. See Hernandez-Toyens v. West, 11 Vet. App. 379 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence). It is therefore not afforded great probative value and is insufficient to rebut the presumption. The Board notes that the Veteran has a current diagnosis of scoliosis. The Veteran's service treatment records show, as stated above, complaints of back pain and reported back injuries during service in May 2008. Shortly after separation from service, in October 2008, the Veteran filed a claim for service connection for a low back disorder and was afforded a VA examination in January 2009. Upon examination, the reported constant back pain since service and was diagnosed with levoscoliosis. As such, the Board is unable to disassociate the post-service diagnosis from the in-service injuries. Considering the record in sum, the Board finds that the lay and medical evidence in this case collectively weigh in favor of the Veteran's claim. As such, the Board finds that service connection for spondylosis and levoscoliosis is warranted. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Left Arm and Left Leg Numbness The Veteran claims that he has left arm and left leg numbness as a result of active service. The Veteran also claimed left leg pain from shin splints in his November 2009 notice of disagreement. As noted above, the issue of shin splints has been referred to the AOJ and the Board does not have jurisdiction to adjudicate the claim. As explained by the Federal Circuit, in order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (2001). Hence, the mere fact of a veteran reporting subjective symptoms, whether numbness or otherwise, does not necessarily warrant a finding that he or she has met the current disability due to disease or injury requirement. Rather, an underlying disease or injury is required. The Veteran's service treatment records show that he complained of sore shins bilaterally in November and December 2004. In August 2007 he also complained of sore shins and numbness with tingling around his left shin. The service treatment records show that the Veteran did not complain of or seek treatment for left arm numbness. However, the Veteran must nevertheless show that he has current left leg and arm disability due to disease or injury in service or caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a),(b) (requiring some relationship between current disability and service-connected disability). See also Sanchez-Benitez, 259 F.3d at 1362 (without factual finding of nexus between current neck pain and in-service neck trauma, Federal Circuit could not reach the question of whether veteran's current pain was statutorily compensable). In the present case, the Board finds that the evidence reflects no underlying disease or injury related to the Veteran's claimed left arm and leg numbness at any time during the appeal period. During the January 2009 examination, the Veteran reported being diagnosed with left leg and left arm numbness approximately five years prior to the examination. He complained of tingling, numbness, abnormal sensation, and anesthesia in his left arm and left leg. His symptoms consisted of constant with flare ups at least 20 times per day for three minutes each time. He denied any pain, weakness, or paralysis and indicated he did not experience any functional impairment. He is not currently receiving treatment but will work the limb to loosen it during the flare ups. The objective examination, however, was wholly unremarkable. Specifically, when examined in January 2009, the Veteran's extremities were normal with no ulceration, edema, stasis dermatitis, clubbing, or cyanosis. Upon neurological examination, the Veteran's cranial nerves and coordination were normal. Neurological examination of the upper extremities revealed motor function within normal limits and sensory function within normal limits. Both right and left upper extremity reflexes revealed biceps jerk 2+ and triceps jerk 2+. Neurological examination of the lower extremities also revealed motor function within normal limits and sensory function within normal limits. Both right and left upper extremity reflexes revealed knee jerk 2+ and ankle jerk 2+. The VA examiner concluded that the Veteran's claimed condition of left leg numbness had, " no diagnosis because there is no pathology to render a diagnosis" and for the Veteran's claimed condition of left arm numbness the examiner also concluded that, "there is no diagnosis because there is no pathology to render a diagnosis." A review of the Veteran's VA treatment records reveal that he complained of numbness in the posterior thigh in January 2009. The VA examiner did not, however, diagnose the Veteran with any underlying pathology or disease. Thus, the weight of the evidence reflects that the current symptoms of arm and leg numbness, including left leg pain, experienced by the Veteran have no underlying pathology. As there is no underlying pathology, it cannot be said that any current disability is due to disease or injury in service or caused or aggravated by service connected disability. Moreover, while the Veteran is competent and credible to report his in-service numbness and current symptoms including numbness or pain, he is not competent to opine as to whether the current symptoms are due to underlying pathology such as disease or injury in service or service connected disability. Testimony as to such underlying pathology is testimony as to an internal medical process that extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent). Moreover, even assuming that the Veteran's testimony is competent in this regard, the probative value of the diagnosis of the physician who conducted the January 2009 VA-authorized examination, which was based on detailed examination findings, is greater than that of the veteran's more general lay assertions. The Board has also considered the Veteran's contention that the VA examination was not adequate. However, the examiner conducted a full examination and the opinions were supported by medical rationale and clinical findings. The Board notes that the Veteran's claim for service connection for spondylosis and levoscoliosis was granted. However, a remand to determine if the Veteran's current symptoms of numbness are related to his service connected disabilities is not warranted at this time as there is no underlying pathology for which to grant service connection on any basis. In summary, the evidence of record shows that he does not have pathology, disease or injury, resulting in right leg and arm numbness. The Board has carefully reviewed the record and has concluded that a preponderance of the evidence is against the Veteran's claim for service connection. The doctrine of reasonable doubt has been considered but as the preponderance of the evidence is against his claim, it is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for sponylosis and levoscoliosis is granted. Service connection for left leg numbness is denied. Service connection for left arm numbness is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs