Citation Nr: 1605155 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 11-26 444A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder, characterized as degenerative joint and disc disease, to include as secondary to service connected residuals of a torn left gastrocnemius muscle. 2. Entitlement to service connection for a cervical spine disorder, characterized as degenerative disc disease, to include as secondary to service connected residuals of a torn left gastrocnemius muscle. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from January to April 1971, from January to May 1991, and from January to August 2000. This matter is on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. The Veteran testified before the undersigned Veterans Law Judge in June 2012. A transcript of the hearing is of record. This appeal is comprised entirely of documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. This appeal was remanded by the Board in June 2014 for further development, and the issue of entitlement to service connection for a cervical spine disorder is addressed in the REMAND portion of the decision below and is again REMANDED to the AOJ. FINDING OF FACT It is less likely than not that the Veteran's current lumbar spine disorder is related to an injury incurred during active duty service, a period of active duty or inactive duty for training, or a service connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disorder, characterized as degenerative joint and disc disease, to include as secondary to service connected residuals of a torn left gastrocnemius muscle, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. None is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the duty to notify was satisfied by way of letters sent to the Veteran that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. They also provided him with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2014 & Supp. 2015); 38 C.F.R. § 3.159 (2015). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and VA outpatient treatment records. The Veteran also submitted treatment records from a private facility as well as his own statements in support of his claim. As was noted by the Board in its June 2014 Remand, the evidence of record indicates that, in September 1980, Veteran applied for disability benefits from the Social Security Administration (SSA). It is not clear whether such benefits were ever granted. However, the Veteran's receipt of SSDI, if he was ever in receipt of such benefits, would have pre dated the period of service that he alleges as causing his current back and neck disorders. It also predates the injury to his left thigh, which he argues as the secondary cause for these problems. There is also evidence suggesting that he was employed following September 1980. In other words, as any records from SSA would not be relevant to the appeal, there is no duty to obtain those records. See Golz v Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). VA examinations and opinions with respect to the issue on appeal were also obtained in August 2010, September 2011 and July 2014. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are collectively adequate, they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was also afforded a hearing before the undersigned Veterans Law Judge in June 2012. The hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Notably, the Veteran was specifically asked about the onset of his lumbar spine disability, and the impact his service-connected disabilities may have on this disorder. Finally, it is noted that this appeal was remanded by the Board in June 2014 in order to obtain a new VA opinion regarding the nature and etiology of the Veteran's lumbar spine disorder. To the extent that the appeal is being adjudicated, the Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was provided a VA examination in July 2014, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in November 2014. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran is claiming entitlement to service connection for a lumbar spine disorder, which has been ultimately diagnosed as degenerative arthritis and disc disease. At his hearing before the Board in June 2012, he stated that he could not recall a specific injury during any period of active duty service or during his reserve service, but did note that he had been placed on a medical "profile" on numerous occasions due to back pain. He also raised the possibility that his back symptoms may be related to his service-connected gastrocnemius muscle tear in his left leg, which has required him to walk with a cane. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014 & Supp. 2015). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including arthritis of the spine, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). The Veteran may also be eligible for benefits as a Veteran based on any period of ACDUTRA where he was disabled from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA where he was disabled from injury, but not disease, incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106, 1110, 1131 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.6(a)-(d), 3.303(a) (2015); Harris v. West, 13 Vet. App. 509 (2000); Paulson v. Brown, 7 Vet. App. 466 (1995). The terms injury and disease are distinguishable. Specifically, an injury must constitute some external event that occurs during a period of ACTUDRA or INACDUTRA, but may encompass any event that results in a disabling condition even though the resulting disability was not immediately manifest. However, the fact that a disorder merely became manifest during a period of INACDUTRA may not be sufficient for VA purposes. VAOPGCPREC 86-90 (1990), 56 Fed. Reg. 45,712 (1990). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2015). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. As an initial matter, although the Veteran stated at his hearing before the Board that he could not recall a specific back injury, the treatment records from his three periods of active duty, as well as various periodic reserve service physical evaluations, indicate sporadic episodes of back complaints. For example, in February and March 1971 (during his first period of active duty service), the Veteran reported to a medical dispensary with complaints of low back pain. At that time, he was diagnosed with a bilateral paravertebral spasm, and a chest X-ray was normal. He was placed on limited duty, and he apparently exhibited no additional symptoms, since his discharge physical examination in April 1971 indicated no back symptoms or disorder. Next, according to his reserve service records, the Veteran did appear to experience some sort of back injury in the time between leaving active duty in 1971 and his reentering active duty in 1991. Specifically, according to a March 1977 physical examination, he had recently experienced a back injury at work with "suspected disc injury." Testing did not reveal any active pathology and, at the time of the examination, he denied any recurrent back pain. In September 1980, the Veteran was again seen for complaints of back pain, which were diagnosed as ankylosing spondylitis. Another examination in July 1981 noted that the Veteran experienced a back injury in approximately 1973 "in the Army Reserves." The basis for this determination is unclear as there are no contemporaneous records documenting an injury during any period of ACDUTRA or INACDUTRA in 1973. Rather, since this examination note mentions a history of "ankylosis and spondylitis," it appears to be referring to the 1977 injury which, as was described above, was a nonservice workplace injury. Subsequent evaluations in July 1982 and June 1983 also note back pain, but no treatment was apparently required. Subsequent annual routine reserve evaluations from 1984 through 1989 indicate no complaints of back pain whatsoever. In fact, the next reference of any back symptoms was not until the Veteran's second period of active duty service, where he went to sick call in March 1991, complaining of back pain and tenderness on the right side of his chest. At that time, he stated that he been performing some "heavy lifting" 12 hours prior to the onset of symptoms. He was diagnosed with a musculoskeletal strain and was placed on light duty. His separation physical examination in April 1991 noted no back symptoms. Service treatment records do not reflect complaints of, treatment for, or a diagnosis related to a lumbar spine disorder during his last period of active duty service in 2000. While he was released early from active duty due to a leg disability, no back symptoms were noted at evaluations in July or August 2000, or in September 2001. The first indication of a clinically observable spine disorder following active duty service was not until September 2009, where an X-ray revealed prominent degenerative spurring and moderate spondylosis. However, according to a VA examination in July 2014, such evidence of arthritis of the spine was present as early as 2002. In any event, presuming that the Veteran's arthritis was present in 2002, this is still at least a year and a half after his last period of active duty service. Moreover, as stated above, there has been no indication of a chronic spine disability observed during any period of active duty service. Recognition is given to the statements made by the Veteran regarding continuous back symptoms during and following his periods of active duty service. In this regard, while the Veteran is not competent diagnose a disorder such as degenerative arthritis, he is nevertheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran's statements regarding his back symptomology are not credible, given the inconsistency of his statements. In particular, while the Veteran stated at his hearing that he could not recall any particular incident that caused his back symptomatology, he omits the fact that he was treated for lumbar spondylitis in the 1970s. He also reported in 1977 that he injured his back in a workplace accident. Such weighs against his claim. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). He even filed a claim to VA for nonservice-connected pension based on this disorder in September 1980. Had the Veteran believed his back problem was related to service, or at least been experiencing chronic back pain since service, he has provided no explanation as to why he did not seek entitlement to service connection. The Board cannot ignore the fact that the Veteran's medical history is also very inconsistent regarding lumbar spine symptoms. Indeed, while he mentioned a history of back problems on some occasions, he went many years where he mentioned no back problems at all. Therefore, the Board concludes that the Veteran has not incurred a lumbar spine disorder that is attributable to any period of active duty, ACDUTRA or INACDUTRA, nor has a chronic spine disorder been present on a continuous basis since his last period of active duty in 2000. Even though there were times where back symptomatology was evidence, only one of them (his ankylosing spondylitis) was clinically diagnosed. Moreover, it does not appear that this disorder was incurred during a period of active duty, ACCDUTRA or INACDUTRA prior to 2000. Service connection may also be granted when the evidence establishes a medical nexus between the Veteran's current complaints and either active duty service or another service-connected disability. The weight of the competent evidence weighs against the Veteran. At the Veteran's next VA examination in September 2011, the VA examiner determined that the Veteran's back disability was less likely than not attributable to active duty service. The examiner stated that there was no objective evidence of degenerative disc disease in the service treatment records, despite the evidence of in-service back symptoms. Moreover, the VA examiner noted that subsequent examinations in 1991 and 2000 did not include any mention of back pain. Next, at his most recent VA examination in July 2014, the VA examiner again concluded that it was less likely than not that the Veteran's back disorder was related to any period of active duty service or that is was caused or aggravated by his service-connected muscle injury. The examiner noted that the first indication of degenerative disc disease was 11 years after his last in-service complaints of back symptoms (1991). Citing to medical research, the examiner stated that back pain (disability) is not shown to be caused by disorders to the lower extremities. Rather, such disorders are typically related to overuse of the back and spine itself, or are otherwise due to aging. Consideration has been given to statements made by the Veteran relating his lumbar spine disorder to his active service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of a lumbar spine disorder. See Jandreau, 492 F.3d at 1377, n.4. Because spine disorders such as degenerative disc disease are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's lumbar spine disorder are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for a lumbar spine disorder, characterized as degenerative joint and disc disease, to include as secondary to service connected residuals of a torn left gastrocnemius muscle, is denied. REMAND Unfortunately, the Veteran's claim of entitlement to service connection for a cervical spine disorder requires additional development. Specifically, when the Board remanded this claim in June 2014, it specifically noted that the Veteran had raised the argument that his cervical spine disorder was potentially related to residuals of his service-connected torn left gastrocnemius muscle. Accordingly, the Board required that the Veteran undergo a VA examination, and that the VA examiner provide an opinion as to whether it was at least as likely as not that the Veteran's cervical spine disorder was etiologically related to active duty service or to the residuals of his service-connected disability. While the Veteran underwent a VA examination in July 2014, the opinion by the examiner regarding the Veteran's cervical spine condition simply stated there were "no records found showing the Veteran was ever seen or treated for a neck condition during his active service . . . Therefore, no opinion will be given regarding etiologically or aggravation." This opinion is inadequate in that does not provide any of the information that was required by the June 2014 Remand. When VA undertakes to provide a VA examination, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As this was not the case here, an addendum opinion is required before this claim may be properly considered. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268 (1998) (there must be substantial compliance with the Board's remand directives). Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records from the VA Medical Center in Fargo, North Dakota, since July 2014, as well as from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. If the Veteran has any relevant Army Reserve treatment records in his possession since 2000, he should also submit these records. 2. Return the claims file to the VA examiner who examined the Veteran in July 2014. The examiner should review all new evidence of record, including the statements made by the Veteran as well as by friends and family, and provide an addendum to his previous opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran's cervical spine disability is etiologically related to any period of active duty service, ACDUTRA, INACDUTRA or the residuals of his service-connected torn left gastrocnemius muscle. The requested addendum opinion must be accompanied by a thorough reasons and bases for the opinions rendered. If the examiner is unable to provide such an opinion without resorting to speculation or for any other reason, an adequate explanation should be provided as to why such an opinion cannot be provided. Such explanations may include, but are not limited to, limited experience in the specific medical field or the need for additional tests. A new examination is not necessary unless deemed necessary by the examiner, or the examiner who provided the July 2014 opinion is no longer available. 3. After the above action is completed, if the claim is not fully granted, a supplemental statement of the case should be issued, and the claims file should be returned to the Board for further appellate consideration. 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 2014). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs