Citation Nr: 1342141 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 07-20 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a left leg disability manifested by numbness, to include as secondary to a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to March 1971. He was awarded the Purple Heart Medal. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified during a hearing before a Veterans Law Judge in August 2007. A transcript of this hearing is associated with the claims file. In December 2012, the Veteran was notified that this Judge was no longer employed by the Board. The Veteran informed the Board that he wanted to appear at another hearing before a Veterans Law Judge of the Board at his local RO. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2013. A transcript of the hearing is of record. The Board remanded these matters in December 2009 and February 2012 for further development. Thereafter, the RO continued the denial of the claims as reflected in the November 2012 supplemental statement of the case (SSOC) and returned these matters to the Board for further appellate consideration. The Board requested a medical expert opinion from the Veterans Health Administration (VHA) in August 2013. A response was received in September 2013. The Veteran and his representative were provided with a copy of the medical opinion in September 2013. The Veteran did not respond to the letter. Accordingly, this issue is before the Board for appellate review. See 38. C.F.R. §§ 20.903, 20.1304(c) (2013). FINDINGS OF FACT 1. The preponderance of the evidence shows that a low back disability was not diagnosed in service, arthritis of the lumbar spine was not diagnosed within one year after discharge from service and the Veteran's current low back disability is not caused by or related to active military service. 2. The preponderance of the evidence shows that the Veteran's left leg disability manifested by numbness is not related to active military service or a service-connected disability. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by active military service, nor may arthritis of the lumbar spine be presumed to have been so incurred. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. A left leg disability manifested by numbness was not incurred in or aggravated by active military service and not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that letters dated in October 2006 and February 2010 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, the October 2006 letter advised the Veteran what information and evidence was needed to substantiate his service connection claims for a back disability and left leg disability on a direct basis. The February 2010 letter notified the Veteran of how to substantiate his service connection claim on a secondary basis. The October 2006 letter also informed the Veteran of his and VA's respective duties for obtaining evidence. The letter requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran. The Veteran was notified of how VA determines the disability rating and effective date if his claim is granted in the October 2006 letter. The October 2006 letter satisfied most of the duty to notify provisions prior to the initial AOJ decision. However, the February 2010 letter satisfied the duty to notify provision with respect to how substantiate a claim on a secondary basis subsequent to the initial AOJ decision. The Board finds that this timing error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of the supplement statement of the case issued in June 2010 after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran will not be prejudiced by the Board proceeding to decide his claims, as the timing error did not affect the essential fairness of the adjudication. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, service personnel records, VA treatment records, VA examination reports dated in May 2010 and October 2012, a September 2013 VHA medical expert opinion, lay statements from the Veteran and transcripts of the August 2007 and July 2013 Board hearings. The May 2010 VA examination report shows that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating him. The examiner documented the results of the evaluation and provided a diagnosis with respect to the Veteran's low back disability and left leg disability. The examiner provided a negative medical opinion with an explanation. As the examiner provided a clear explanation based on the evidence of record and general medical knowledge with respect to the Veteran's left leg disability and whether the Veteran's low back disability is related to a shrapnel wound in service, the May 2010 VA examination is adequate for adjudication purposes with respect to those issues. However, the Board determined that the opinion was inadequate with respect to the Veteran's claim that his low back disability is related to jumping off of a truck and the Veteran was provided with another VA examination in October 2012. The October 2012 VA examination report reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating the Veteran. The examiner discussed the relevant evidence of record and documented the results of the evaluation. Following the above, the examiner provided an opinion and explanation. The Board determined that the November 2012 VA examiner's medical opinion is inadequate because it was not well reasoned or fully articulated. Thus, the Board sought a VHA medical expert opinion to obtain more insight into the medical question of whether the Veteran's current low back disability was related to active military service to include the documented in-service complaint of low back pain. The Federal Circuit has upheld the Board's power to both obtain such opinions and adjudicate the matter without RO review, provided that the claimant is provided a copy of the examination report and an opportunity to respond. Disabled American Veterans, et.al, vs. Secretary of Veterans Affairs, 419 F.3d 1317 (Fed. Cir. 2005). The VA medical expert reviewed the claims file and provided an opinion on whether the Veteran's back disability had its onset in service or is related to active military service with a clear explanation that appears to be based on the evidence of record and medical knowledge. Therefore, the VHA medical expert opinion is adequate for adjudication purposes. These issues were previously remanded in December 2009 in order to notify the Veteran of how to substantiate a claim on a secondary basis, request the Veteran to inform VA of any outstanding private treatment records, obtain all VA treatment records from separation from service to the present (specifically VA treatment records at the VA facilities in Massachusetts from 1975 to 1995 and Florida from 1995), obtain the Veteran's service personnel records and obtain a VA examination. A letter dated in February 2010 informed the Veteran of how to substantiate his claims on a secondary basis, requested that the Veteran apprise VA of all medical care providers who have treated him since separation from service. The claims file contains VA treatment records from the VA Boston Healthcare System from July 1994 to March 1995 and VA treatment records from the Bay Pines VA Healthcare System from October 1998 to July 2009. The Veteran's service personnel records were associated with the claims file. Furthermore, the claims file contains a VA examination and opinion dated in May 2010. The issues were remanded for a second time in February 2012 to obtain any outstanding VA treatment records between 1975 and 1995 and to obtain a VA medical opinion on whether the Veteran's low back disability is related to active military service. The RO contacted the Boston VA Medical Center in February 2012 and in July 2012. The Boston VA Medical Center sent a negative response in September 2012. The RO contacted the Veteran and he informed VA that he did not have any of these missing records. The RO made a formal finding of on the unavailability of VA treatment records from 1975 to 1995 that have not already been obtained in November 2012. The claims file contains a VA examination and opinion dated in October 2012. The Board remanded the claim for a third time in January 2013 as the Veteran was informed that the original Veterans Law Judge that conducted the August 2007 travel Board hearing was no longer employed by the Board and the Veteran requested another Board hearing. A transcript of the July 2013 Board hearing is associated with the record. The Board sought a VHA medical expert opinion in August 2013 with respect to whether the Veteran's low back disability is related to active military with a well reasoned and fully articulated explanation in support of such opinion. The record contains a VHA medical expert opinion dated in September 2013that addresses the questions raised by the Board and it was supported by an adequate explanation. Accordingly, the Board finds that there has been substantial compliance with the December 2009, February 2012 and January 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Criteria and Analysis Service connection may be granted to a veteran for a disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection also may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Low Back Disability The Veteran claims that his current low back disabilities are related to an in-service back injury. He asserts he injured his back when received shrapnel wounds to his lower central back during service and after he jumped off of a vehicle. The Veteran contends that he has had recurrent low back pain since active military service. In assessing whether the Veteran is entitled to service connection for a back disability, the evidence of record must show that the Veteran has a current diagnosis of the claimed disability. A May 2010 VA examination shows that the Veteran has a current diagnosis of lumbosacral disc disease and degenerative joint disease. VA treatment records also show a current diagnosis of spinal stenosis. Thus, the Board finds that the Veteran has a current diagnosis of the claimed disability. The Veteran's service treatment records show that the Veteran sought treatment for bilateral flank pain in September 1970. There was a notation that the complaint was near the kidney area. It was determined that the Veteran had a possible kidney stone and he was referred to urology. The service records did not show any other low back complaints or treatment of a low back disability in service. The Veteran's separation examination in March 1971 reveals that the Veteran's spine was evaluated as clinically normal and the Veteran reported that his condition was excellent. The first evidence of any complaints of back problems after discharge from military service was in a March 1995 VA treatment record. The first medical evidence of a diagnosis of a back disability (SI joint dysfunction) was in August 2004, approximately 33 years after discharge from active military service. The Veteran was first diagnosed with degenerative joint disease of the lumbar spine in April 2007. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service that resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board recognizes that the Veteran contends that he has had a continuity of back pain since active military service. However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in section 3.303(b) restricts itself to chronic diseases found in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1339) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). Lumbosacral disc disease is not considered a chronic disease under section 3.309(a) and therefore, the Veteran may not establish continuity of symptomatology in lieu of medical nexus. The Board observes that the Veteran has also been diagnosed with arthritis of the lumbar spine. Arthritis is recognized as a chronic disease under section 3.309(a). However, the Veteran's service treatment records do not document a diagnosis of lumbar spine arthritis during active military service. Furthermore, there is no competent medical evidence of record indicating that the Veteran's complaints of bilateral flank pain in 1970 is related to the current diagnosis of arthritis of the lumbar spine. The Federal Circuit has held that section 3.303(b) only applies to a chronic disease as listed under section 3.309(a) that was shown in service. Walker, 708 F.3d at 1339. Thus, the Veteran may not establish continuity of symptomatology in lieu of medical nexus with respect to arthritis of the lumbar spine. Based on the foregoing, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current low back disabilities and his active service. In this regard, the May 2010 VA examiner determined that the Veteran reported a shrapnel wound to the back during service. The examiner noted that the Veteran had a scar in the thoracic region; however, the Veteran's reported back pain is in the lumbar region. The examiner concluded that if the Veteran had shrapnel wound to the back in service that would not be the cause of his current lumbar pain. The record also contains a negative VA VHA medical expert opinion dated in September 2013. After reviewing the claims file, the examiner determined that the evidence clearly indicates the Veteran has spinal stenosis and multi-level spinal spomdylosis (degenerative spine disease). He provided the opinion that there is less than 50 percent probability that the current back symptoms and degenerative arthritis findings are related to an alleged injury that occurred after jumping off a truck in Vietnam. The medical expert noted that the Veteran's separation examination described no back problems and that his overall health was "excellent." He explained that in his experience, patients who sustain serious back injuries (such as those that lead to traumatic degenerative spine arthritis) generally have either sustained a fracture of the osseous structures or severe ligamentous disruption which leads to motion segment instability of the spine. It is almost always associated with ongoing pain and impairment. It is unlikely that the Veteran would report his health was excellent and the examiner would note a normal back if the Veteran had sustained the type of injury that would have led to his current level of back arthritis, disc bulging and current symptoms. Furthermore, the medical expert asserted that a traumatic spine injury secondary to jumping down off a high platform or vehicle often is seen as a compression or burst type of fracture. None of these were found on imaging. He concluded that it is unlikely that remodeling of the spine would have occurred to the extent that x-rays and MRI would be negative for fracture after one of these types of traumatic injury. On the contrary to evidence of a traumatic injury, the MRI indicates multilevel disc disease including bulging, spinal stenosis, facet arthropathy at multiple levels from L2 down to the sacrum. The medical expert noted that this is typical of osteoarthritis from normal "wear and tear" which occurs throughout one's entire lifetime. The Board has determined that the opinions by the May 2010 VA examiner and the September 2013 VHA medical expert are highly persuasive and probative as they reviewed the record and provided a clear explanation for their opinions based on the evidence of record and medical expertise. The Board also finds it probative that the record does not contain any medical opinions indicating that the Veteran's current low back disabilities are related to active military service. The Board acknowledges that the Veteran provided a lay opinion that his lumbar spine disability is related to his active military service and that his recurrent low back pain since active military service is related to his current low back disabilities. Lay persons can provide an account of observable symptoms, such as low back pain in service with a continuity of symptomatology since service. See Jandreau, 492 F.3d at 1377. However, lay assertions regarding certain medical matters, such as an opinion whether lumbosacral disc disease and degenerative joint disease of the lumbar spine are related to active military service to include falling off a vehicle or recurrent continuity of low back pain since service, fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran is not a licensed health care professional; therefore, the lay evidence offered by him is not competent medical evidence and does not prove a relationship between the Veteran's current low back disabilities and active military service. In conclusion, the evidence of record shows the probative medical opinions provide evidence against the claim that his current low back disability is related to military service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for a low back disability and service connection for a low back disability is not warranted. Left Leg Disability The Veteran contends that his left leg disability manifested by numbness is related to active military service. Specifically, he asserts that was caused by shrapnel wound to his back and/or falling from a vehicle. In the alternative, he claims that his left leg disability is caused by or aggravated by his low back disability. VA treatment records show that the Veteran has a current diagnosis of left leg radiculopathy. A VA examination in May 2010 also reflects that the Veteran has sensory radiculopathy of the left lower extremity. Thus, the medical evidence of record reveals that the Veteran has a current diagnosis of the claimed disability. Service treatment records show that the Veteran did not complain of or receive treatment for a left leg disability manifested by numbness during active military service. The separation examination dated in March 1971 reveals that the Veteran's neurological and lower extremity evaluation was normal. The first medical evidence of record that shows that the Veteran complained of numbness in the left lower extremity was in December 2003. Furthermore, the Veteran has indicated that the left leg numbness began no earlier than in the 1990's. See VA examination dated in May 2010 and June 2013 Hearing Transcript at 12. With respect to the issue of whether the Veteran's left lower leg disability is related to active military service, the claims file contains a negative medical opinion. After a review of the claims file, obtaining an oral history from the Veteran and physically evaluating him, a VA examiner in May 2010 provided the opinion that the Veteran's sensory radiculopathy is not caused by service. He explained that there was no documentation of the condition during service. The examiner also determined that the Veteran's lumbosacral disc disease and degenerative joint disease led to the radiculopathy. The examiner was fully apprised of the Veteran's medical history and his opinion was supported by the evidence of record. Moreover, the opinion has not been questioned by any other medical evidence. As such, the opinion is found to be highly probative. The Board recognizes that the Veteran provided a lay opinion that his left leg numbness is related to an event or injury during active military service. In this case, lay assertions regarding a diagnosis of radiculopathy and the etiology thereof fall outside the realm of common knowledge of a lay person. See Kahana, 24 Vet. App. at 435. The Veteran is not a licensed health care professional; therefore, the lay evidence offered by him is not competent medical evidence and does not prove a relationship between the Veteran's current radiculopathy of the left leg and active military service. With respect to the Veteran's service connection claim on a secondary basis, the medical evidence of record supports the Veteran's contention that his radiculopathy of the left leg is caused by his current low back disabilities. However, as discussed above, the Veteran's service connection claim for a low back disability is denied. One of the requirements of a secondary service connection claim is evidence of a service-connected disability. 38 C.F.R. § 3.310. As the underlying claim of entitlement to service connection for a low back disability is denied, the secondary service connection claim is rendered moot. In light of the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's left leg disability manifested by numbness is not etiologically related to active military service. Furthermore, as this decision denied the Veteran's service connection claim for a low back disability, the Veteran's service connection claim for a left leg disability secondary to a low back disability is denied as a matter of law. Accordingly, entitlement to service connection for a left leg disability manifested by numbness is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a left leg disability manifested by numbness, to include as secondary to a low back disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs