Citation Nr: 1335785 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-46 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to service connection for lumbar spine disorder. 2. Entitlement to service connection to vertigo, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from August 1968 to June 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. In December 2011, the Veteran testified at a hearing before the undersigned. A copy of the transcript has been associated with the claims file. The issue of entitlement to service connection for vertigo 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. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the competent medical evidence of record shows that a current lumbar spine disorder, to include degenerative disc disease, L5-S1 and diffuse lumbar spondylosis of the lumbar spine, is related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a lumbar spine disability, to include degenerative disc disease, L5-S1 and diffuse lumbar spondylosis of the lumbar spine, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the fully favorable decision contained herein, the Board finds that discussion of the VCAA notice and assistance provided to the Veteran is unnecessary, since any deficiency of such would constitute harmless error. II. Service Connection Legal Criteria Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran has been diagnosed with spondylosis (arthritis) of the lumbar spine. Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) applies to the claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease, at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, became manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within a presumptive period, it must be shown, by acceptable medical or lay evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. When an injury is incurred in combat, satisfactory lay or other evidence will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996). While service connection for a combat-related injury may be based on lay statements alone, the competent and credible evidence must still show a current disability and a nexus to service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Huston v. Principi, 18 Vet. App. 395, 402 (2004); Clyburn v. West, 12 Vet. App. 296, 303 (1999); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996); Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996) (holding that U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether service connection is warranted for a disability, VA 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 the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). III. Analysis of Claim The Veteran contends that his current lumbar spine disability is related to back injuries in service. He alleges that he sustained an injury of his back during basic training when he was being placed in a crash simulator. The Veteran also alleges that he sustained a back injury during in a crash landing of a helicopter. The Veteran had active duty service from August 1968 to June 1971. The DD Form 214 indicates that the Veteran's service occupation was aircraft maintenance apprentice. Personnel records show that the Veteran received the Air Medal with "V" device for participation in flights in support of combat forces in Vietnam and served as a door gunner in Vietnam. See also April 2009 rating decision granting service connection for PTSD due to Vietnam combat-related experiences. In the present case, the Board finds that the Veteran's lay statements are sufficient to establish that the Veteran sustained a back injury in service. The Veteran is competent and credible to report that injured his back during basic training. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Further, as the Veteran engaged in combat with the enemy in active service, his lay statements are sufficient proof of a back injury sustained in service notwithstanding the fact that there is no official record of the injury. See 38 U.S.C.A. § 1154(b). Service treatment record do not show complaints or findings regarding the lumbar spine. The report of the service separation examination, dated in June 1971, reflects that the spine was clinically evaluated as normal. The record does not show that arthritis of the lumbar spine manifested to a compensable degree within a year of separation from service. Accordingly, service connection for arthritis of the lumbar spine may not be presumed. 38 C.F.R. §§ 3.307, 3.309. Post-service medical records in evidence reflect treatment of a lumbar spine disability from 2003 to the present. In an October 2010 opinion, a private chiropractor, Dr. Richey, D.C. indicated that the Veteran was seen in January 2008 with low back pain. At that time, lumbar file radiographs were taken. Dr. Richey indicated that the Veteran had significant thinning of his L5 disc compared to the rest of his lumbar spine discs. Dr. Richey indicated that the premature thinning of the L5 disc was consistent with his low back complaints. Dr. Richey also noted a Schmorl's node of the lower L4 vertebral endplate and upper L5 vertebral endplate consistent with some sort of previous axial trauma (like a lap belt or traumatic injury) resulting in damage to the adjacent vertebral endplates. Dr. Richey stated that it was his professional opinion that both of these findings were consistent with (the Veteran's) stated history of the onset of low back pain as a result of his reported in service injuries. In March 2011, the Veteran was afforded a VA examination of his spine. The VA examiner indicated that the claims file was reviewed. The Veteran reported that he did not recall a specific injury to his low back but stated that he may have injured the low back in basic training while being placed into a crash simulator with a safety lap belt to teach soldiers to use safety belts during flights. The examiner noted that the Veteran did not seek any provider medical care at the time or any other time during his military service. The Veteran reported that he was a door gunner in Vietnam and reported getting hung up on his pants and flopping on his back out of the helicopter. The Veteran also reported back problems related to loading/ arming his gunship helicopter. He also reported a crash-landing with a helicopter, where the skids hit first in front of the helicopter and he was not strapped into his seat, causing him to be thrown forward and causing back pain. The VA examiner diagnosed degenerative disc disease, L5-S1, diffuse lumbar spondylosis of the lumbar spine, most marked at L5-S1 and mild degenerative changes of the sacroiliac joints bilaterally. The VA examiner opined that he could not resolve without resort to speculation whether the Veteran's current lower back disability began during or was caused by the injuries incurred in combat. The VA examiner explained that the Veteran's history includes several potential incidents during service where low back strain and/ or where micro or macro spine injury to the discs or ligamentous system could have occurred, thereby setting the stage for future back injury/ spondylosis and degenerative disc disease. The examiner noted, however that a review of the claims file revealed no documentation of a back injury in service. The VA examiner further noted that the Veteran's employment history included work as a heavy equipment operator and heavy commercial truck driver. The examiner noted that this type of occupation is a highly physical one with occupational low back injury hazards that could have easily resulted in episodic injuries or cumulative trauma lumbar spine injuries after service. The VA examiner stated that, while he did not doubt that the Veteran could have suffered injuries to his spine while in service or from the potentially injurious conditions he reported, too much time has passed and too many unknowns exist to opine if he suffered one or more significant back injuries in service. The VA examiner explained that, for that same reason, he could not opine a relationship of a service-connected condition to his current back condition without resorting to mere speculation. In this case, the October 2010 private chiropractor's opinion supports the claim, as the physician found that the current lumbar spine findings are consistent with the Veteran's reported in-service injuries. The March 2011 VA examiner's opinion lacks probative value, as the VA examiner could not provide an etiology opinion without resort to speculation. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical evidence that is speculative, general, or inconclusive cannot be used to support a claim). Therefore, based upon the evidence of a back injury in service and the favorable medical opinion of record, the Board resolves any doubt in the Veteran's favor and concludes that service connection for a lumbar spine disorder, to include degenerative disc disease, L5-S1 and diffuse lumbar spondylosis of the lumbar spine, is warranted. ORDER Service connection for a lumbar spine disorder, to include degenerative disc disease, L5-S1 and diffuse lumbar spondylosis of the lumbar spine, is granted. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. Service connection is permissible on a direct basis for disability that was incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). At the Board hearing in December 2011, the Veteran testified that his vertigo might be related to rocket and mortar attacks he experienced when he was stationed at Marble Mountain Dan Nang. The Veteran stated that he had rockets and mortars impact within an area right in front of him. The Veteran and his representative stated that the Veteran's current vertigo might be related to some kind of traumatic injury because of the Veteran's proximity to the impacts of rockets and mortars. A private medical record dated in 2007 reflects a diagnosis of disequilibrium caused by position head changes. VA medical records dated in September 2009 noted that the Veteran had a work-up by an ear, and throat physician, and a rotary test was positive for central vertigo. The Veteran has not been afforded a VA examination to ascertain the etiology of vertigo. The Board finds that a VA examination and opinion is needed to ascertain the etiology of vertigo, including whether vertigo is the result of a traumatic brain injury in service, and to ascertain whether vertigo was caused or aggravated by service-connected PTSD or is otherwise related to military service. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The RO/AMC should send the Veteran appropriate notice regarding the information and evidence not of record that is necessary to substantiate the claim for service connection for vertigo, including as secondary to his service-connected PTSD. See 38 U.S.C.A. § 5103(a); 38 C.F.R. §§ 3.159, 3.310. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with corrected notice pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 regarding his claim for service connection for vertigo, including as secondary to service-connected PTSD. 2. Schedule the Veteran for an appropriate VA examination, by a physician with training in matters involving traumatic brain injuries, for an opinion as to the etiology of vertigo. The examination must be conducted following the protocol in VA's Disability Examination Worksheet for Traumatic Brain Injury Examination. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination, and the examination report should indicate that such records were reviewed. Following a thorough examination of the Veteran, the examiner should state an opinion as to whether current vertigo is at least as likely as not (50 percent or greater likelihood) related to service, including rocket and mortar attacks that the Veteran experienced in service or whether vertigo is the result of a traumatic injury in service. For the purposes of the examination, the VA examiner should be advised that the Veteran's report of being in an area that was impacted by rocket and mortar attacks is considered credible. The VA examiner should consider such history in formulating any opinion. The VA examiner should provide an opinion as to whether current vertigo is at least as likely as not (50 percent or greater likelihood) proximately due to, or caused by the Veteran's service-connected PTSD. The VA examiner should render an opinion as to whether vertigo is aggravated (permanently worsened by) service-connected PTSD. The VA examiner should provide a rationale for any opinion expressed. If an opinion cannot be provided without resort to speculation, the VA examiner should so state and should explain why it is not possible to provide an opinion. 3. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and, if not, implement corrective procedures. 4. Then, readjudicate the claim based upon all of the evidence of record. If the claim remains denied, provide a supplemental statement of the case to the Veteran and his representative, and provide an opportunity for response. The case should then be 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. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs