Citation Nr: 1340299	
Decision Date: 12/06/13    Archive Date: 12/20/13

DOCKET NO.  10-21 215	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a cervical spine disorder.

2.  Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 based on the need for convalescent for cervical spine surgery.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

John Kitlas, Counsel




INTRODUCTION

The Veteran served on active duty from August 1967 to January 1970.  Further, the record reflects he engaged in combat during service as exemplified, in part, by the fact he is in receipt of the Purple Heart and the Combat Action Ribbon.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the claims.

For the reasons addressed in the REMAND portion of the decision below, the Veteran's claim of entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

The competent and credible evidence of record reflects it is at least as likely as not the Veteran has a current cervical spine disorder as a result of his active service.


CONCLUSION OF LAW

The criteria for a grant of service connection for a cervical spine disorder are met.  38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  In this case, however, the Board finds that service connection is warranted for the Veteran's cervical spine disorder.  As this represents a complete grant of the benefit sought on appeal with respect to this claim, no discussion of VA's duty to notify and assist is necessary.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

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).

The Veteran essentially contends that his current cervical spine disorder is the result of injuries sustained while engaged in combat while on active duty.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrent 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 at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

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 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (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).  

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).  

In this case, the Board acknowledges that the Veteran's service treatment records do not contain any entries which specifically note cervical spine/neck problems while on active duty.  However, these records do reflect he sustained multiple shrapnel wounds to the left side of his body as a result of mortar round explosion in May 1968.  Granted, these records do not specifically note an injury to the neck, nor is any such injury/disability indicated on his January 1970 release from active duty examination nor a March 1970 VA medical examination.  In fact, the first competent medical evidence of such a disability appears to be years after his separation from service.

The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service, can serve as probative evidence against a service connection claim.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991).  However, the Veteran is competent to describe an in-service injury to the neck and recurrent symptoms thereafter, particularly in cases such as this where it was purported to have been incurred in combat.  As already noted, the record reflects he engaged in combat while on active duty as exemplified, in part, by his Purple Heart and Combat Action Ribbon.  The Board also reiterates that his service treatment records confirm he sustained multiple shrapnel wounds to the left side of his body from a mortar explosion even though it did not specifically reference his neck.

In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable.  This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence.  If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  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.  The Federal Circuit has held that in the case of a combat veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

In this case, the Veteran's account of his in-service neck/cervical spine injury is certainly consistent with the circumstances, conditions, or hardships of his active military service.  Further, the record does not appear to contain clear and convincing evidence which rebuts the Veteran's account of such disability/injury while on active service.  

The Board also observes that a July 2008 addendum to neurosurgery conducted by VA in May 2008 on the cervical spine stated that "[a]fter review of the record and [the Veteran's] long history of cervical spine pain it is conceivable that these problems could have been caused or exacerbated by the injuries he sustained while in the service."

The Board further notes that the Veteran was accorded a VA spine examination in April 2010 regarding this case, and that the examiner was requested to provide an opinion as to the etiology of the current cervical spine disorder.  However, the examiner stated that she could not resolve the issue without resort to mere speculation.  In support of this opinion, the examiner stated that the Veteran did not note significant pain until several years ago, and had no documented complaints of neck pain while in service.  Therefore, the examiner could not state that injuries from service were contributory to his current condition.

The Board has already noted that there is no competent medical evidence of the current cervical spine disorder until years after service.  However, the Board has also found that the Veteran's account of his purported in-service injury is consistent with the circumstances, conditions, or hardships of his active military service.  The July 2008 addendum does provide competent medical evidence linking the etiology of the current disability to service, and the April 2010 VA examiner's opinion does not explicitly refute such a finding.  

The Board also notes that the law provides that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology."  Further, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails.

Resolving all reasonable doubt in favor of the Veteran, the Board finds that the competent and credible evidence of record reflects it is at least as likely as not the Veteran has a current cervical spine disorder as a result of his active service.  Therefore, service connection is warranted for this disability.


ORDER

Service connection for a cervical spine disorder is granted.


REMAND

Under 38 C.F.R. § 4.30 , a temporary total disability rating will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight- bearing prohibited); or (3) Immobilization by cast, without surgery, of one major joint or more.  An extension of 1, 2, or 3 months beyond the initial 3 months may be granted and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon request. 

The Court has held that notations in the medical record as to the veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30.  Seals v. Brown, 8 Vet. App. 291, 296-297 (1995); Felden v. West, 11 Vet. App. 427, 430 (1998).  Furthermore, the Court has noted that the term "convalescence" does not necessarily entail in-home recovery. 

In this case, the Veteran's claim of entitlement to a temporary total rating was denied on the basis that his cervical spine disorder was not a service-connected disability.  However, for the reasons stated above, the Board has determined that service connection is warranted for such a disability.  Nevertheless, an effective date has not been assigned for this disability, nor can the Board make such a determination in the first instance.  Moreover, even if service connection was in effect at the time of the surgery in question, no determination was made as to the extent convalescence was necessary following this procedure.  Therefore, a remand is required. 

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should put into effect the Board's grant of service connection for a cervical spine disorder, to include assigning the initial rating and effective date for such disability.

2.  After completing any additional development deemed necessary, the AMC/RO should readjudicate the issue of entitlement to a temporary total rating under 38 C.F.R. § 4.30 for convalescence.

If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the April 2010 SOC, and provides an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.  By this remand, the Board intimates no opinion as to any final outcome warranted.

The appellant has the right to submit additional evidence and argument on the matter 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. 2013).




______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs