Citation Nr: 1734643 Decision Date: 08/22/17 Archive Date: 08/30/17 DOCKET NO. 13-28 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for residuals of a jaw injury. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 1999 to March 1999 and from April 2003 to April 2006, including service in Iraq. His awards and decorations include the National Defense Service Medal and Army Commendation Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2016, the Board remanded the case for additional development, which has been completed. These matters have since been returned to the Board for appellate review. In an August 2013 VA Form 9, the Veteran requested a videoconference hearing. The RO notified the Veteran of the date, time, and location of the hearing in April and May 2016; however, he failed to report. The Veteran has not requested that the hearing be rescheduled, or presented good cause. Therefore, the Board deems the hearing request withdrawn. See 38 C.F.R. 20.704(d)(2016). This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains documents that are either duplicative of the records in VBMS or irrelevant to the issue on appeal. The issue of entitlement to service connection for residuals of a jaw injury is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's lumbar spine disability did not manifest in service and is not attributable to service; degenerative arthritis of the lumbar spine did not manifest to a compensable degree within one year of discharge from service. CONCLUSION OF LAW The criteria the establishment of entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties 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. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The VA satisfied its duty to notify the Veteran. The record reflects that prior to the initial adjudication of the claim in April 2012, the RO mailed the Veteran a VCAA letter fully addressing all notice elements. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent post-service medical records, and providing an examination when necessary. 38 C.F.R. § 3.326(a). In this case, the service treatment records have been of record since at least the April 2012 rating decision. The RO also obtained VA post-service treatment records and military personnel records. In support of his claim, the Veteran has submitted personal lay statements. Neither the Veteran nor his representative identified any outstanding records that are pertinent to the claim being decided herein that have not already been requested or obtained. Pursuant to the Board's June 2016 remand, VA afforded the Veteran a VA examination in June 2017 with respect to his lumbar spine disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2017 VA examination is adequate to decide the case because, as shown below, it is based upon consideration of the Veteran's pertinent medical history, as well as his lay assertions and contentions that his lumbar spine disability is related to service, and the examiner described the Veteran's lumbar spine disability in sufficient detail to allow the Board to make a fully informed determination. The examiner also provided the necessary opinion supported by rationale. Id.; see Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (holding that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). Additionally, the Board finds that the RO has substantially complied with the Board's June 2016 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Moreover, the Veteran was provided an opportunity to meaningfully participate in the adjudication of his claim. Washington v. Nicholson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board for addressing the merits of this appeal. Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); 38 C.F.R. § 3.303(a). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As arthritis is considered a chronic disease for VA compensation purposes, if chronicity during service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker, 708 F.3d 1331. VA shall consider all information and lay and medical evidence of record. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, where the preponderance of the evidence is against the claim, the claim for benefits must be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In considering the evidence of record under the laws governing entitlement to VA benefits, the Board concludes that service connection is not warranted for a lumbar spine disability. The Veteran contends that he injured his back in an IED explosion that hit his tactical vehicle in February 2004 while serving in Iraq. See April 2012 VA Form 21-4138 Statement In Support of Claim. The Board concedes that the Veteran's unit was working in an area of Fallujah, Iraq that was subjected to small arms (rocket and mortar) fire, IEDs and rocket propelled grenade attacks between January and February 2004. See April 2017 Appeals Management Center's PTSD Stressor Verification Review. The Board notes that the Veteran complained of low back pain during service in early December 2003. After separation from service, the Veteran's first recorded complaint of back pain was in June 2011. An X-ray of L-S spine showed focal disc disease suspected at L5-S1 level. See June 2011VA Physician Note and Addendum. Pursuant to the Board's June 2016 remand, the Veteran was afforded a VA examination in June 2017 for his back condition. The Veteran reported that while deployed to Iraq in 2003/2004, he was a 50-cal gunner on a QRF team. He recalled that a rocket hit behind his vehicle and caused him to be ejected from the vehicle. Thereafter, he saw a naval provider for his teeth and was given some medication. He was off missions for approximately one week. He contended that since this incident he has had back problems. As noted above, he went to the ER in December 2003 for what he now described as middle low back problems and numbness extending through his right lower extremity. The examiner found a diagnosis for lumbar degenerative disc disease, arthritis of the thoracolumbar spine, and radiculopathy. The examiner opined that the Veteran's lumbar spine disability was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. In support of his opinion, the examiner stated that the Veteran's service treatment records revealed only one medical encounter in December 2003, which the Veteran complained of a low back condition. During that medical encounter, the Veteran presented to the ER and per the ER nursing documentation, the Veteran's chief complaint was "lower back pain" and that he had "collapsed 3 times on that day." The same encounter had two annotations in which the Veteran was called to be seen on two occasions. The first annotation was that he was called at 1600, but no answer and again at 1820 without any answer as well. Therefore, it appeared the Veteran left without being seen, as there were no physical examination findings or diagnosis given. The examiner stated that further review of Veteran's service treatment records did not reveal any additional medical encounters with a complaint of, diagnosis, and or treatment of a low back condition. Additionally, there was no diagnostic testing conducted during the Veteran's time on active duty denoting a possible back condition. As noted above, the first report was in June 2011. The examiner also noted that the Veteran had a MRI of lumbar spine in February 2015, which noted progression of mild multilevel degenerative disc disease without significant spinal canal or neuroforaminal narrowing. From October 2011 to August 2015, the Veteran was also periodically evaluated for low back pain. The examiner concluded that his review of the claims file demonstrates that the Veteran's low back condition was diagnosed after leaving military service and there was no nexus to his time on active military service. To the extent that the Veteran and his representative assert that the Veteran's lumbar spine disability is related to service, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, neither the Veteran nor his representative is competent to provide an opinion as to whether the Veteran's lumbar spine disability is related to his service, as this particular inquiry is within the province of trained medical professionals; it goes beyond a simple and immediately observable cause-and-effect relationship. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Additionally, the Board notes that the Veteran's ER encounter for low back pain was in early December 2003, several months before the February 2004 IED incident that he contends injured his back. The Veteran's lack of a report of back problems in February 2004, in conjunction with the June 2016 examination and opinion, weighs against a finding of continuity of symptomatology since service. But see Walker, 708 F.3d at 1336 (holding that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b)). Thus, the Board finds that there is no competent evidence of record linking the Veteran's lumbar spine disability to his active service. Additionally, there is no indication that arthritis occurred in service or manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309. Instead, the only opinion on the matter weighs against the Veteran's claim and there is no contrary medical opinion of record. The Board finds the June 2016 VA examination report significantly probative here, as the examiner reviewed the evidence of record, including the Veteran's lay statements, and relied on his own training, knowledge, and expertise as a medical professional in rendering his opinion. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a)("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Accordingly, the Veteran's claim for entitlement to service connection for a lumbar spine disability is denied. ORDER Service connection for a lumbar spine disability is denied. REMAND Although the Board sincerely regrets the additional delay, it finds that an addendum opinion is necessary before a decision can be made on the Veteran's claim. The Veteran contends that he injured his jaw in an IED explosion that hit his tactical vehicle in February 2004 while serving in Iraq. See April 2012 VA Form 21-4138 Statement In Support of Claim. As noted above, the Board concedes that the Veteran's unit was working in an area of Fallujah, Iraq that was subjected to small arms (rocket and mortar) fire, IEDs and rocket propelled grenade attacks between January and February 2004. See April 2017 Appeals Management Center's PTSD Stressor Verification Review. The Veteran's service dental records in September 2005 document that the Veteran had prior trauma. Additionally, it was noted that the Veteran was having discomfort in his upper anterior teeth. Pursuant to the Board's June 2016 remand, the Veteran was provided a VA examination in June 2017. Although the Veteran claimed he sustained facial during an IED blast, the examiner noted that there was no documentation in the service treatment records that the Veteran experienced trauma to his jaw or reported any incident of jaw pain and/or headaches following the date of the IED blast. The examiner stated that he was unable to opine as requested because there was inadequate documentation to support that there was jaw pain, pain with chewing or headaches while in service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds the June 2017 VA examiner's opinion inadequate and, thus, remand is warranted. Accordingly, the case is REMANDED for the following action: 1. After completing the foregoing development, the AOJ should obtain an addendum opinion from a qualified medical professional to determine the nature and etiology of the Veteran's residuals of a jaw injury. If an examination is necessary, one should be provided. The claims file and a copy of this REMAND must be made available to the examiner for review. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, prior VA examination reports, and lay statements and assertions. All pertinent symptomatology and findings must be reported in detail. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that his residuals of a jaw injury is causally or etiologically related to the Veteran's military service, to include any symptomatology or injury therein. In that regard, the Board concedes that a February 2004 in-service IED attack incident occurred. Additionally, service dental records, dated September 16, 2005, indicate that the Veteran had prior trauma and it was noted that the Veteran was having discomfort in his upper anterior teeth. In providing this opinion, the examiner should discuss medically known or theoretical causes of his residuals of a jaw injury and describe how such a disability generally presents or develops in most cases, in determining the likelihood that residuals of a jaw injury is related to in-service events as opposed to some other cause. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A clear and complete rationale for any opinions or conclusions expressed should be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 3. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs