Citation Nr: 1415001	
Decision Date: 04/07/14    Archive Date: 04/15/14

DOCKET NO.  10-42 556	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for lumbar strain.

2.  Entitlement to service connection for a right shoulder disability.

3.  Entitlement to a rating in excess of 20 percent for residuals of a right distal fibula fracture.

4.  Entitlement to a rating in excess of 10 percent for right hip strain.

5.  Entitlement to a rating in excess of 10 percent for right knee strain.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

 James R. Siegel, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from September 1978 to September 1981.  These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2009 and March 2010 rating decisions of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO).  

Service connection for a low back disability was denied by the RO in September 1994 and again in December 2001.  It does not appear that the Veteran's service treatment records (STRs) were available at the time of either determination.  He subsequently sought to reopen such claim and the VA then obtained his STRs.  Accordingly, as provided by governing regulation (See 38 C.F.R. § 3.156(c) ) de novo review of the claim is warranted.)

The Veteran has submitted a May 2011 letter from a VA physician summarizing the results of magnetic resonance imaging (MRI), unaccompanied by an opinion and without a waiver of RO initial consideration.  The Board finds this is cumulative evidence and, therefore, does not require referral to the RO for initial consideration.  Notably, given that the MRI findings are not in dispute, there is no prejudice to the Veteran from such action.

The issues of service connection for a right shoulder disability and increased ratings for residuals of a right distal fibula fracture, right hip strain and right knee strain are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if action on his part is required.



FINDING OF FACT

The Veteran's low back disability was initially manifested many years after, and is not shown to be related to, his service.


CONCLUSION OF LAW

Service connection for a low back disability is not warranted.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  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(a).  The VCAA applies to the instant claim.  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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 VCAA notice 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)(1).  VCAA notice requirements apply to all five elements of a service connection 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The appellant was advised of VA's duties to notify and assist in the development of this claim.  A September 2009 letter, prior to the adjudication of the claim, explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria.  He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate.  

The Veteran's STRs and pertinent postservice treatment records have been secured, and he has been afforded examinations to determine the etiology of his low back disability.  The Board finds that the record, as it stands, includes competent evidence adequate for the Board to decide this matter, and that no further development of the evidentiary record is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  VA's duty to assist is met.  

Factual background, Legal criteria and Analysis

The Board has reviewed all of the evidence in the appellant's record.  Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board will summarize the evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

The Veteran's STRs show that in February 1980 he complained of back pain after lifting.  Pain and tenderness were noted on the paraspinous muscles.  The impression was probably rhomboid strain.  Three days later, he reported he had been hit on the back by a door the previous day.  There was mild muscle spasm of the paraspinous muscles at T10-12.  He had good range of motion of the spine.  Straight leg raising was negative, and deep tendon reflexes in the lower extremities were 2+ and equal.  The impression was muscle strain.  Medication was prescribed.  He again complained of back pain in December 1980.  In a report of medical history on March 1981 service separation examination, the Veteran denied back trouble; on examination at the time, the spine was normal on clinical evaluation.  

VA outpatient treatment records show that X-rays of the lumbosacral spine in January 1998 and May 2001 were normal.  In May 2000, he reported continued low back pain with a six month history of right lower extremity numbness.  In June 2003, he reported that three days after working on a car, he woke up with pain in his right upper and lower back.  The assessment was low back pain.  MRI of the lumbar spine in January 2007 revealed degenerative disc disease.  It was noted in March 2007 that the Veteran had a long history of lower back pain and radiating right leg pain which was exacerbated in July 2006 after moving/lifting a lawnmower onto the back of a truck.  He stated that following an injury to his fibula in service, he favored his right side for quite some time.  The diagnoses were right-sided sacroiliitis and right-sided piriformis syndrome, with radiating pain down the right leg likely due to impingement of the sciatic nerve in the piriformis muscles.  In June 2009 he reported that he had chronic low back pain that started after bending over to pick up a heavy object about five years earlier.  

On VA spine examination in February 2010, the examiner noted he reviewed the claims folder and medical records.  He summarized the STRs which showed the Veteran had a rhomboid strain.  The Veteran reported his back pain had bothered him since 2004.  He had not had any injuries to the lumbar spine.  The diagnoses were lumbar strain and left gluteal neuralgia.  The examiner opined that the Veteran's lumbar pain included heel neuralgia, and was not caused by or related to the in-service rhomboid strain.  He explained that these are two anatomically different areas and are not related.  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §  1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service.  See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004).

The Board acknowledges the Veteran reported back pain on several occasions during service, and was found to have a rhomboid strain.  He denied any low back problems on the separation examination in March 1981, and a clinical evaluation of the spine at that time was normal.  The Veteran has provided conflicting accounts regarding the onset of his low back disability.  When he was seen in March 2007, he reported that he had favored his right side after an in-service injury.  He also claimed he had a long history of low back pain and that it had been exacerbated in July 2006.  However, in June 2009, he reported his low back pain began about five years prior.  His varying accounts undermine his credibility.  In light of the absence of any documentation of continuity of low back complaints following service, and because his accounts of such have been inconsistent and are deemed not credible, service connection for a low back disability on the basis it became manifest in service and persisted is not warranted.  

Therefore, what the Board is presented with is whether, in the absence of continuity of symptoms since service, the Veteran's current low back disability may be related to his service and the complaints/injury noted therein.  The February 2010 VA examiner's opinion against the Veteran's claim reflects that he reviewed the record and was aware of the Veteran's complaints in service.  He explained the rationale, noting that the service injury and the postservice findings involved different (and unrelated) anatomical areas of the spine.  The Board finds this opinion probative evidence in the matter.  Because there is no competent (medical opinion) evidence to the contrary, the Board finds it persuasive.   

The Veteran's lay assertions that his lumbar strain is related to service are not competent evidence.  Laypersons are competent to provide opinions considered competent evidence regarding the etiology of a disability in some instances.  However, the matter of a nexus between any current low back disability and remote service, in the absence of a continuity of symptoms during the intervening period, is a medical question beyond the scope of lay observation/common knowledge.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

In summary, the record shows that any current low back disability became manifest many years after service and is not shown to be related to the Veteran's service/back complaints therein.  The preponderance of the evidence is against this claim.  Accordingly, the appeal in this matter must be denied.


ORDER

Service connection for lumbar strain is denied.


REMAND

The Veteran asserts service connection is warranted for a right shoulder disability.  His STRs reflect he had a rhomboid strain in service.  Private medical records show he was seen for right shoulder pain in February 2008.  A medical opinion regarding nexus is necessary.  

The Veteran also claims his service-connected disabilities have increased in severity.  The most recent VA examination to evaluate the disabilities was in April 2009, approximately five years ago.  In light of the reports of worsening and the length of the intervening period, a contemporaneous examination to assess the disabilities is necessary.  

Accordingly, the case is REMANDED for the following:

1.  The RO should ask the Veteran to identify all providers of evaluation and/or treatment he has received, for a right shoulder disability, residuals of a right fibula fracture, right hip strain, and right knee strain since 2011, and to submit authorization forms for VA to secure records of such evaluations and treatment from all private providers.  The RO should secure complete clinical records of the evaluations and treatment from all providers identified.
	
2.  After the development ordered above is completed, the RO should arrange for an orthopedic examination of the Veteran to determine the nature and etiology of any current right shoulder disability, and the current severity of his right distal fibula fracture, right hip strain and right knee strain.  The Veteran's record must be reviewed by the examiner in conjunction with the examination.  All indicated studies must be completed.

Regarding the right shoulder, the examiner should:  (a) identify by diagnosis each right shoulder disability found.  (b) opine (as to each right shoulder disability diagnosed) whether such is at least as likely as not (a 50% or better probability) related to the Veteran's service/rhomboid strain therein.  

Regarding the right distal fibula fracture residuals, and the right hip and right knee disabilities, studies conducted must specifically include range of motion studies, active and passive, of the right ankle, knee, and hip.  The examiner must note any additional functional limitations due to factors such as pain, use, etc.  

The examiner must explain the rationale for all opinions.  

3.  The RO should then review the record and readjudicate the claims on appeal.  If any remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board.

The appellant has the right to submit additional evidence and argument on the claims the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).


______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs