Citation Nr: 1336659 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-38 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of service connection for a low back disability, and if so, whether service connection is warranted. 2. Entitlement to service connection for low back disability, other than anterior compression fractures of T12 and L1. 3. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from October 1961 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2013, the Veteran testified at a Travel Board hearing before the undersigned. The issues of service connection for low back disability, other than anterior compression fractures of T12 and L1, and cervical spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In October 1977, the RO denied service connection for lumbosacral strain. The Veteran did not appeal. 2. Evidence submitted since the RO's October 1977 decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim. 3. The Veteran's T12 and L1 anterior compression fractures are attributable to service. CONCLUSIONS OF LAW 1. The RO's October 1977 rating decision which denied service connection for lumbosacral strain is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012). 2. New and material evidence has been received since the RO's October 1977 rating decision; thus, the claim of service connection for a low back disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2013). 3. Anterior compression fractures of T12 and L1 were incurred in active service. 38 U.S.C.A. §§ 1101, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. With regard to the issue of whether new and material evidence has been received to reopen the claim of service connection for a low back disability, the Veteran's claim is being granted to the extent that it is reopened. In addition, service connection for fractures of L12 and L1 are being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial as to those matters. New and Material In an October 1977 rating decision, the RO denied service connection for lumbosacral strain. It was noted that the service treatment records showed that the Veteran was treated for complaints of back pain. He was hospitalized thereafter and reported that the onset of back pain occurred prior to service when he lifted a heavy weight. X-rays revealed anterior wedging of L1 with a scoliosis to the left at the L1-2 level. There was a suggestion of facet asymmetry. In addition, an unusual proximity of the spine of L2, L3, L4, and L5, with possible false articulation was noted. It was determined that the Veteran had lumbosacral strains secondary to mechanical irregularities of the back which were congenital. Post-service, medical records reflected that the Veteran was in an automobile accident in January 1977. He reported low back pain with numbness in the right lower extremity (as well as neck pain). The impression was sprain of the cervical spine and lumbosacral area. The next month, it was noted that the Veteran had a history of another accident from 16 years before. X-rays showed no abnormalities other than a suspicious area on the lateral suggestive of spondylolysis, but this was not confirmed and later x-rays were normal. It was concluded that the Veteran had resolving cervical and lumbosacral strain with no evidence of traumatic spondylolysis or spondylolisthesis. An August 1977 VA examination revealed that the Veteran had lumbosacral spinal disease, degenerative arthritis versus herniated disc with ongoing disability. X-rays showed a mild scoliosis of the lumbar spine with convexity toward the left. There was some anterior narrowing of T12, L1 vertebral bodies as well as some narrowing perhaps mildly of the disc space at this level which probably represented old trauma. There were no other definite abnormalities. The RO denied service connection on the basis that the Veteran had a congenital deformity which was not aggravated beyond its normal progression during service. A notice of disagreement was not received within the subsequent one-year period. Further, additional evidence was not received within one year of that decision. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Significantly, absent any indication in the record that this analysis occurred, the Federal Circuit explained that it was particularly reluctant to presume that the VA considered, but rejected, the possibility that a submission contained new and material evidence relating to an earlier claim. Id. at 1368. The Federal Circuit noted VA's statutory obligation to provide a written statement of its findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record. Id. Therefore, the RO's October 1977 rating decision is final. 38 U.S.C.A. § 7105. Since the prior final decisions, evidence has been added to the claims file. The additional evidence of record consists of VA medical records including two VA examination reports. A May 2009 examination confirmed cervical and lumbar disabilities. An August 2009 medical opinion report indicated that the Veteran had T12 and L1 anterior compression fractures which were at least as likely as not caused by or the result of military service. The examiner indicated that the L1 deformity lead to the T12 deformity. The examiner was not able to state without mere speculation whether the other lumbosacral spine conditions (osteoarthritis and degenerative disc disease) were caused by or a result of his service. The examiner noted that the Veteran did not have a congenital condition during service. The only evidence of such was an abnormal x-ray which was never thereafter reproduced on later studies. For the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person(s) making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993); but see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). Furthermore, the Federal Circuit has indicated that evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Subsequent to the RO's consideration of this appeal, the Court decided the case of Shade v. Shinseki, 24 Vet. App. 110 (2010). In Shade, the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim. Rather, if there is newly submitted evidence of current disability which in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. This then triggers VA's duty to assist in providing the claimant with a VA examination. In this case, the prior denial was on the basis that the Veteran had a congenital abnormality that was not aggravated during service. The newly submitted evidence establishes that the Veteran's low back disabilities are not congenital in nature and that at least some diagnoses are etiologically related to service. Therefore, new and material evidence has been received since the RO's October 1977 decision; thus, the claim of service connection for a low back disability is reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Service Connection for Anterior Compression Fractures of L12 and L1 Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, 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). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records). The Veteran is competent to report the Veteran can observe and feel through the senses. See Layno. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims ("the Court") similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he/she has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The Veteran underwent an entrance medical examination in September 1961 and no abnormalities were noted. He did report a history of using a neck or back brace. Given the normal entrance examination, the Board will presume that the Veteran entered service in sound condition. During active duty, the Veteran was treated for low back complaints following an incident in which he dropped an ammunition shell. He also reported a preservice history of back problems following heavy lifting. Ultimately, he was diagnosed as having lumbosacral strain, chronic, secondary to mechanical irregularities of the back, found to be congenital by a Medical Survey Board. After service, the Veteran was in an automobile accident in January 1977. The impression was sprain of the cervical spine and lumbosacral area. X-rays showed no abnormalities other than a suspicious area on the lateral suggestive of spondylolysis, but this was not confirmed and later x-rays were normal. It was concluded that the Veteran had resolving cervical and lumbosacral strain with no evidence of traumatic spondylolysis or spondylolisthesis. Thus, the congenital abnormalities were not confirmed at that time. The Veteran was examined by VA in August 1977. X-rays showed some anterior narrowing of T12, L1 vertebral bodies. The VA examiner in August 2009 opined that the Veteran had T12 and L1 anterior compression fractures which were at least as likely as not caused by or the result of military service. The examiner indicated that the L1 deformity lead to the T12 deformity. The examiner noted that the Veteran did not have a congenital condition during service and provided rationale for that conclusion, as previously indicated. The presumption of soundness is not rebutted given the lack of evidence establishing clear and unmistakable evidence of a preexisting disability and clear and unmistakable evidence that the preexisting disability was not aggravated in service. Although the Veteran reported a pre-service history of back problems, it is significant that his spine was normal on enlistment examination. Further, an August 2009 VA examination indicated, following a review of the evidentiary record, that the Veteran did not have a preexisting back disability when he entered service, to include a congenital spine condition. The August 2009 VA examiner attributed the Veteran's compression fractures to service. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board therefore attaches significant probative value to the August 2009 VA opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran, with regard to his anterior compression fractures of T12 and L1. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). In light of the foregoing, service connection is warranted for anterior compression fractures of T12 and L1. ORDER Service connection is warranted for anterior compression fractures of T12 and L1. 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 claims so that the Veteran is afforded every possible consideration. The Veteran contends that his low back and neck were injured when he caught a heavy shell during service when ammunition was being handed to him. The Veteran informed his VA physicians in 2009 that he had been involved in a 2004 motor vehicle accident (as well as a previous 1977 accident) wherein his preexisting (from service) low back and cervical spine conditions were aggravated. It was also suggested in the medical records that the current low back and neck disabilities might be aggravated by the service-connected anterior compression fractures of T12 and L1. A review of the record reflects that no medical records from the 2004 motor vehicle accident or the treatment rendered afterwards have been obtained. In light of the foregoing, the 2004 medical records should be obtained. It was indicated that the Veteran also underwent cervical spine surgery at that time. A medical addendum should then be obtained to address direct service connection in light of the additional records, as well as secondary service connection as service connection has been established for anterior compression fractures of T12 and L1. Accordingly, the case is REMANDED for the following action: 1. After securing the appropriate medical release, obtain and associate with the record copies of all clinical records, which are not already in the claims file, of the Veteran's treatment following a 2004 motor vehicle accident including records regarding cervical spine surgery. Additionally, in light of the forthcoming changes to the 38 U.S.C.A. § 5103A(2)(B), the RO/AMC must make two attempts for the relevant private treatment records or make a formal findings that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the record. 2. Obtain a medical addendum. The examiner should review the record prior to examination. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that current cervical spine disability as well as arthritis and disc disease of the low back had their clinical onset during service or is related to any in-service disease, event, or injury. In addition, the examiner should indicate if arthritis was manifest in the initial post-service year. The examiner should address both the 1977 and 2004 motor vehicle accidents, including a notation in the 1977 records that the Veteran had a prior injury 16 years prior to that time. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current cervical spine disability as well as arthritis and disc disease of the low back are proximately due to, or the result of service-connected anterior compression fractures of T12 and L1. The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that current cervical spine disability as well as arthritis and disc disease of the low back is permanently aggravated by the Veteran's service-connected anterior compression fractures of T12 and L1. If such aggravation is found present, the examiner should address the following medical issues: (1) The baseline manifestations of the Veteran's cervical spine disability as well as arthritis and disc disease of the low back found present prior to aggravation; (2) The increased manifestations which, in the examiner's opinion, are proximately due to the service-connected anterior compression fractures of T12 and L1 based on medical considerations. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. 4. The AMC/RO should then readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The matter of service connection for cervical and lumbar disabilities as secondary to service-connected anterior compression fractures of T12 and L1 should be addressed by the AMC/RO. 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs