Citation Nr: 1338128 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-21 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to service connection for degenerative changes of the lumbar spine with scoliosis. ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1960 to March 1967. He died in October 2011. The appellant is the legal guardian of his five minor children, and has been substituted for the Veteran in connection with an appeal he had pending before the Board of Veterans' Appeals (Board) at the time of his death. This matter came before the Board on appeal from a February 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. During his lifetime, the Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. The Board remanded the issues in March 2011 to obtain any outstanding VA treatment records and to afford the Veteran a VA examination and nexus opinion. The records were obtained and the Veteran was provided a VA examination in April 2011. The examiner provided the requested opinion and a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's heart disability was not manifested during service or is causally related to active service. 2. The Veteran's degenerative changes of the lumbar spine with scoliosis were first manifested during service. CONCLUSION OF LAW 1. The criteria for service connection for a heart disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Degenerative changes of the lumbar spine with scoliosis were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through a VCAA letter dated August 2007, VA's notice requirements were met. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA examination reports, private treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified. The Veteran was afforded a VA examination in March 2009, April 2011, and a VHA opinion was obtained in August 2013. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners and opinion provider had an accurate history, the Veteran's history and complaints were recorded, and the examination reports set forth detailed examination findings. Therefore, the examination reports and opinion are adequate to decide the claims of service connection. Service Connection - Laws and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 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 United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 C.F.R. § 7104(a) (West 2002). Moreover, the Court 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). Competency of evidence differs from weight and credibility. Competency 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"). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). 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. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Service Connection - Heart Disability Prior to his death, the Veteran asserted that he had a heart disability that manifested during service. He acknowledged that he was not treated for or diagnosed with a heart disability during service, but claimed that he experienced chest pain and fatigue, which he felt were symptoms of his current heart disability. Although he is competent to assert the presence of symptoms such as chest pain and fatigue, the Veteran is not shown to be competent to identify a cause for his symptoms during service or to diagnose the presence of a heart disability. Therefore, his contentions as to causation are not sufficient to award the benefit sought. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). With respect to the medical documentation addressing the onset of the Veteran's heart disease and the etiology of his complaints of chest pain and fatigue, the preponderance of the evidence is against the Veteran's claim. In April 2011, a VA examiner reviewed the Veteran's claims file and service treatment records. He noted the Veteran's chest pains in the service were associated with respiratory infections and resolved accordingly. The examiner also noted no episodes of any cardiac chest pain, and that the Veteran's lethargy was commented on as being most likely psychiatric in origin on the August 1966 examination. The Veteran also was able to perform his usual and normal duties, which would seem to indicate that he did not have any significant cardiac problems at that time. Furthermore, the Veteran had a normal pulse and pulse response to exercise on an examination dated December 1966, and no episodes of syncope were noted during his military service or afterwards. It was many years later that the Veteran had a pacemaker implanted. Given this, the examiner opined that the Veteran's heart problem did not develop during or due to the military. In view of the explanations provided for the Veteran's symptoms during service and the lack of competent evidence showing onset during or a causal relationship with service, as well as the negative nexus opinion by the April 2011 VA examiner, the Board concludes the greater evidentiary weight is against the claim. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the appeal is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection - Degenerative Changes and Scoliosis Prior to his death, the Veteran asserted that he had a back disability that began during service. Service treatment records show no back disability upon entry into service and numerous complaints of back pain during service. In December 1961, the Veteran reported back pain for a two month period. X-rays from April 1962 of the lumbosacral spine show narrowing at the L5-S1 interspace, compatible with disk degeneration . In July 1965, the Veteran reported to the emergency department with complaints of back pain, and the record showed scoliosis and muscle spasm. During the January 2011 hearing, the Veteran asserted he was treated more than 12 times for back pain during service. Post-service, the Veteran has been treated for low back pain since 1973. The Veteran was afforded a VA examination in March 2009. The examiner diagnosed degenerative joint disease (DJD) of the entire spine, but found it to be less likely than not caused by military service. Rather, it was attributed to a post service motor vehicle accident, stresses of very physical employment, and the process of aging. The Veteran was afforded another VA examination in April 2011. The examiner diagnosed DJD and scoliosis. The examiner opined that the DJD and scoliosis is less likely than not caused by or a result of military service. He noted that the normal aging process and heavy work are the most likely causes for his disability. He also found that scoliosis is most likely a congenital defect. The Board requested an additional medical opinion in June 2013. The response was provided by the Chief of Staff at the Indianapolis VA Medical Center. This person reviewed the Veteran's medical records. He noted the Veteran's first documented complaints of back pain in 1961. He noted April 1962 X-rays showing narrowing of the L5-S1 interspace, which is compatible with degeneration of the disc or herniation of the nucleus, and the note of back pain in the emergency department in July 1965. He also noted the post-service treatment in the 1970s. The examiner concluded the Veteran suffered from degenerative disc disease, perhaps as early as before service, and that this typically puts stress on the joints and there is a continuum of disease, that can lead to involvement of the facet joints that lead to DJD. He also observed that a small percentage of patients end up having minor deformities as a result of disc height being lost asymmetrically on one side or the other, producing scoliosis. When this occurs, it is not a congenital deformity. Those, he explained, are more profound in nature and typically occur in the thoracic area. Applying the applicable legal criteria to the foregoing facts, the Board concludes that a basis upon which to establish service connection for lumbar spine degeneration with scoliosis has been presented. The in-service records show the discovery of disc degeneration in the lumbar spine, with the presence of scoliosis. The opinion from the Chief of Staff at the VA Medical Center in Indianapolis, explained that this degeneration progresses to DJD, found currently, and that the scoliosis that was observed is more consistent with the acquired variety than it is with the congenital deformity. Although this Chief of Staff also allowed how the Veteran's degeneration could have been present prior to service, since it was not found at service entrance, the presumption is that it was not present prior to its in-service discovery. Thus, with the in-service findings and complaints, together with periodic complaints over the post service years, it is reasonable to interpret the evidence as reflecting the in-service onset of a lumbar spine degenerative process with scoliosis. Accordingly, service connection is warranted. ORDER Entitlement to service connection for a heart disability is denied. Entitlement to service connection for degenerative changes of the lumbar spine with scoliosis is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs