Citation Nr: 1735807 Decision Date: 08/29/17 Archive Date: 09/06/17 DOCKET NO. 12-20 907 A ) 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, to include a previously diagnosed herniated nucleus pulposus, L5, left. 2. Entitlement to an effective date prior to December 8, 2016, for the increased disability rating of 70 percent for post-traumatic stress disorder (PTSD). 3. Entitlement to an effective date prior to December 8, 2016, for the increased disability rating of 30 percent for bilateral hearing loss. 4. Entitlement to an effective date prior to December 8, 2016, for the grant of a total rating based on individual unemployability due to service-connected disabilities (TDIU). 5. Entitlement to an increased disability rating for coronary artery disease, status post pacemaker implantation. (The issue of service connection for sleep apnea will be the subject of a later Board decision.) REPRESENTATION Appellant represented by: Penelope Gronbeck, Esquire WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2016, the Board found that new and material evidence sufficient to reopen this matter had been submitted. Having reopened this matter, the Board subsequently remanded it to the RO for further development. The Agency of Original Jurisdiction (AOJ) substantially complied with the Board's remand order, and the Board finds that it may proceed with a decision at this time. See, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an April 2017 Travel Board hearing. A transcript of that hearing has been associated with the claims file. The Board notes that in addition to remanding the present matter, the Board's January 2016 decision also denied service connection for sleep apnea. In a December 2016 Joint Motion for Remand, the Court of Appeals for Veterans Claims (Court) remanded the issue of sleep apnea back to the Board. The Veteran provided testimony regarding the issue of service connection for sleep apnea at a Travel Board hearing in September 2015 before a different VLJ. As such, the undersigned VLJ determined at the April 2017 hearing that he did not have jurisdiction to adjudicate the service connection for sleep apnea issue. As such, the Board finds the underlying issue of service connection for sleep apnea remains on appeal and is not the subject of this decision. The Board further notes that when a Veteran makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has re-characterized the issue of entitlement to service connection for a back disability as entitlement to service connection for a low back disability, to include a previously diagnosed herniated nucleus pulposus, L5, left. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). This is a paperless appeal located on the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The Board has reviewed the electronic records maintained in both VBMS and Virtual VA to ensure consideration of the totality of the evidence. Finally, a review of the Veteran's claims folder indicates that a March 2017 rating decision granted an increased disability rating for PTSD from 50 percent to 70 percent, granted an increased disability rating for bilateral hearing loss from 0 percent to 30 percent, granted TDIU, and continued a 30 percent disability rating for coronary artery disease status post pacemaker implant. The grants of an increased rating and TDIU were all effective December 8, 2016. Thereafter, in May 2017, the Veteran expressed disagreement with the assigned effective dates and the denial of an increased disability rating. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (the Court) held that where a notice of disagreement (NOD) is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. The issues of entitlement to an earlier effective date for an increased rating for PTSD, bilateral hearing loss, and TDIU, as well as the denial of an increased disability rating for coronary artery disease, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has currently diagnosed lumbar spine degenerative disc disease and degenerative joint disease, status post lumbar fusion. 2. The Veteran was previously diagnosed with herniated nucleus pulposus, L5, left, in July 1978. 3. The Veteran's lumbar spine degenerative disc disease, degenerative joint disease, status post lumbar fusion, and herniated nucleus pulposus, L5, left did not manifest in service or within one year of separation from service, or for several years thereafter, and are not etiologically related to service. CONCLUSION OF LAW The Veteran's low back disability was not incurred in or aggravated by active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has met all the duty to notify and assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016). Duty to Notify VA's duty to notify was satisfied by a September 2013 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also, Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment and personnel records and post-service treatment records have been associated with the record. Additionally, during the appeal period the Veteran was afforded a VA examination in February 2014, and an addendum opinion was obtained in February 2017. The examiner conducted an examination and provided sufficient information regarding the Veteran's claimed disabilities such that the Board can render an informed determination. The Board finds that the February 2014 examination and February 2017 addendum opinion are adequate for service connection purposes. Because there is no indication in the record that any additional evidence pertinent to the claim is available and unassociated with the file, the Board concludes VA has satisfied its duty to assist. Service Connection Law and Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See, Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time (one year for arthritis) following discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. See 38 C.F.R. § 3.303 (b). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. The Board will first address direct service connection. The Veteran maintains that he is entitled to service connection for his low back disability which he asserts was incurred while on active duty. The Board acknowledges that the Veteran has a currently diagnosed low back disability and that a July 1968 service treatment record noted the Veteran reported weakness and dizziness with "catch in back." As such, the Board finds that the first two Hickson elements, a currently diagnosed injury and an in-service injury, have been met. The Board will now address the third Hickson element, medical evidence of a nexus between the claimed in-service disease or injury and the current disability. An April 1966 enlistment physical noted the Veteran checked "YES" when asked if he had ever worn a brace or back support. It was also noted that the Veteran checked "NO" when asked if he had recurrent back pain. A June 1969 separation physical noted the Veteran checked "YES" when asked if he had ever worn a brace or back support. It was also noted that the Veteran checked "NO" when asked if he had back trouble of any kind. The Board notes that, aside from the July 1968 service treatment record, there are no other service treatment records noting any complaint, diagnosis, or treatment of a back condition. The Board further notes the Veteran has made inconsistent statements regarding the onset of his low back disability. In January 2013, the Veteran filed to reopen his claim for service connection for his low back disability. The Veteran stated that while stationed in Germany in January or February 1968, he injured his back changing a tire on a five ton dump truck, went to the "Heilbronn Dispensary" and was given medication and 48 hours in his quarters. The Veteran alleged that the service treatment records from this period are missing. The Veteran testified at the April 2017 hearing that he hurt his back changing a tire on a five ton "lowboy", but didn't go to the doctor. The Veteran stated that the reason he did not go to a doctor was because he "thought [he] could overcome it" and that he "had a good sergeant" who gave him light duty and let him "piddle around the motor pool and all." Furthermore, February and March 1978 treatment records from Baptist Hospital in Pensacola, Florida, note the Veteran was admitted for a lumbo-sacral strain. It was further noted that the injury occurred on February 25, 1978 and that this injury was being handled by workmen's compensation. The Veteran reported that in January 1977 he developed low back pain while lifting at work. A July 1978 office consultation from Baptist Hospital notes the Veteran reported that, "beginning in January 1977," while on the job, he was lifting freight when a sudden pain came "all over him". The Veteran then reported another episode in July 1977, also related to lifting freight on the job. In November 1977, while lifting 40 pounds, the Veteran felt a "shock-like" sensation in his back which precipitated the onset of pain in his low back. In February 1978, while on the job, the Veteran picked up a 60 pound box and felt something "pop", and within a few days was experiencing severe pain in his low back. It was noted that "[t]he patient denies any other history to his back other than beginning in January, 1977." The Veteran was diagnosed with a herniated nucleus pulposus, L5, left. A November 2015 private medical opinion from Dr. A. R. G. notes that the Veteran reported that he "lied" in 1978 when he stated that he had no prior back complaints as he feared he would be fired if his employer knew he had a pre-existing back problem. The Veteran further reported that he was fired after missing fifteen months of work. The Veteran testified at the April 2017 hearing that his company would have fired him in 1978 if they had known that his back had been hurt on a prior occasion, so he "didn't tell the truth" regarding whether he had a prior injury, and wound up being fired when he couldn't go back to work. The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see, Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See, Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997 ), cert. denied, 523 U.S. 1046 (1998). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See, Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board finds that the Veteran has been inconsistent and contradictory in his accounts of the history and nature of his low back disability. See, Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). As such, the Board finds that the Veteran's lay statements regarding the history of his back injuries lack credibility, and accords them no probative value. In February 2013, the Veteran submitted a lay statement from W. A., who served in Vietnam with the Veteran and witnessed the Veteran drop to his knees and grab his back while "hooking the chains to a pallet of 500 [pound] bombs." At the time, the Veteran told him he had hurt his back and was in pain that was getting worse. W. A. further stated that the Veteran was put on light duty for a few days. W. A. also stated that he remembers an occasion in January or February 1969 where he saw the Veteran on his knees and "holding his back." A lay person is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also, Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). Here, W. A. is competent to report what he saw and heard. Inasmuch as he saw the Veteran's holding his back and heard him stating he was feeling pain in 1968, the Board finds this statement probative as to whether the Veteran experienced an in-service injury. Inasmuch as he saw the Veteran on his knees and holding his back on another occasion in 1969, the Boards places less probative value on this statement as no further details of this incident were given. The Veteran was afforded a VA back examination in February 2014. Diagnoses of lumbar spine degenerative disc disease and degenerative joint disease are noted, status post lumbar fusion, are noted. No objective radiculopathy was noted, but mild functional limitation was. Intervertebral disc syndrome was present, but ankylosis was not. The examiner opined that the Veteran's lumbar spine condition was not incurred in or caused by military service. The provided rationale was that the records show that the Veteran's lower back was acutely injured in 1977 with no prior history of injury to his back. The Veteran reinjured his back in 2009. Both of these injuries led to lumbar spine surgery. The examiner noted that the Veteran's condition shown on x-rays today was caused by the injuries from 1977 and 2009, and that the degenerative marginal bony spur formation is consistent with aging. In February 2017, VA obtained an addendum opinion to the February 2014 VA back examination. The examiner opined that it is less likely than not that the Veteran's back disability is secondary to the Veteran's military service. As a rationale, the examiner stated that there are no military records showing the Veteran was seen, diagnosed, and treated for any back injuries or back conditions other that the July 1968 service treatment record noting the Veteran had a catch in his back. The examiner noted that there were no further notes dealing with this back complaint subsequent to July 1968. The examiner also noted that no imaging studies of the lumbar spine were seen while on active duty. The examiner then noted that the June 1969 separation physical noted no complaints, diagnoses, or treatment for any chronic back issues or painful or swollen joints. The examiner commented on the November 2015 private medical opinion, stating that the treatment records from 1978 clearly note the Veteran denied any back problems before 1977. The examiner reviewed the post-service medical records and stated that the service records "do not demonstrate that the Veteran developed a back condition that was persistent while on active duty as determined by either the treatment notes, the clinical course of the Veteran, or in his separation history form", nor was there any evidence of an inability to perform his military duties. The examiner stated that it "would not be likely that complications from the military service events would be expected to resurface later on in life" and that it is "more likely that the Veteran experienced minor self-limiting conditions which resolved as expected of such injuries while on active duty." The examiner referenced a medical treatise article which stated that "among persons with known risk factors for degenerative lumbar disc disease but with no history of serious lower back pain minor trauma does not appear to increase the risk of serious low back pain episodes or disability." Does Minor Trauma Cause Serious Low Back Illness, Spine, Volume 31, Number 25 pp 2942-2949. The examiner concluded that the in-service events were of a minor trauma as described by medical literature and would not have been a nexus for the Veteran's later lumbar spine problems. The examiner noted that the record does not demonstrate a history of back problems before 1977 and was able to be gainfully employed until his workplace injuries in 1977 and 1978, and opined that this fact demonstrates that "most likely no lasting residuals occurred from the military service". Additionally, the examiner stated that the descriptions of the Veteran's injuries in 1977 and 1978 "were of a greater magnitude than those allegedly occurring while on active duty", making it more likely that they would have resulted in the Veteran's later lumbar spine conditions. The examiner further noted that "private sector records document the considerable and repetitive events involving the Veteran's back starting in 1977" and that the discovery of the lumbar spine issues so soon after their occurrence "strongly establishes the nexus between the post service events in 1977 and the lumbar spine issues." A November 2015 private medical opinion from Dr. A. R. G., a pulmonologist of Pulmonary Associates of the Southeast, notes that the Veteran reported that at the time he was injured in 1978 he had a family to support and was afraid to tell his employer that he had a pre-existing back problem. It was noted that the Veteran stated he "lied". The doctor referenced the lay statement from W. A. regarding the Veteran's back injury while loading bombs, and further noted that the "diagnosis of lumbar discogenic disease is noted in the chart." The doctor stated that VA notes document that the Veteran "was followed by his local family physician between 1969 and 1977 for back problems." The doctor concluded that "the chart supports the history of an injury in Germany and an injury in Vietnam that involved his low back" which contributed to "further problems that he had with his back." A May 2017 private medical opinion from Dr. F. G. states that "it is more likely than not that there is a causal nexus" to the Veteran's present low back disability and "injuries sustained during his times of active duty", and referenced the alleged injury from changing a tire while in Germany and the injury from Vietnam. The doctor further stated that it is "more likely than not that injuries to the lumbar spinal segments...led to subsequent intervertebral disc herniations at multiple levels." The doctor noted that "[c]hronic pain has continued up through to the present". A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See, Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding that medical opinions based upon inaccurate factual premises are entitled to no probative weight). Because Dr. A. R. G.'s opinion is based largely on the history reported by the Veteran, the Board finds it is of no probative value. Because Dr. F. G.'s opinion relies heavily on the history reported by the Veteran, and because the summary and discussion contains no rationale as to why the Veteran's current low back disability is etiologically related to the Veteran's military service, the Board finds it is of no probative value. Here, the Board finds the sum of the opinions of the February 2014 and February 2017 VA medical examiners to be significantly probative in nature. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See, Nieves-Rodriguez v. Peake, 22 Vet. App. 205 (2008). Taken as a whole, the VA examination reports provide a thorough analysis of all of the evidence and opined against any nexus between the Veteran's current low back disability and his service. Finally, the Board notes that there are no post-service treatment record documenting any complaints, diagnoses, or treatment of any back disability until February 1978. An October 1979 letter from Dr. W. H. N. notes that the Veteran reported back pain in September and December 1973, as well as January 1974. Numerous office visits spanning 1974, 1975, 1977, and 1978 were noted, with a hospital admission in February 1978. The Board notes that no contemporaneous treatment records from Dr. W. H. N. from 1973, 1974, and 1975 have been received and no greater detail is given other than "c/o Back pain" or "Back pain" for the nature, etiology, or treatment of the claimed back pain from those years. Furthermore, the Veteran testified at the April 2017 hearing that the 1979 letter from Dr. W. H. N was received from the doctor contemporaneous to his initial 1979 compensation claim with VA. As such, the Board places little probative value in this letter. The Board finds that the preponderance of the evidence shows that the Veteran's current low back disability is unrelated to service and has been satisfactorily attributed to intercurrent, post-service causes, here, a series of work-related low back injuries in 1977 and 1978, that represent the current disability in exactness. The requirements of the third Hickson element have not been met, and as such, the claim for direct service connection fails here. With regards to presumptive service connection, the weight of the evidence, lay and medical, does not demonstrate that symptoms of a low back disability have been continuous since service or manifested within one year of discharge from service. Accordingly, the preponderance of the evidence is against the Veteran's claim and presumed service connection for a low back disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2016). ORDER Entitlement to service connection for a low back disability, to include a previously diagnosed herniated nucleus pulposus, L5, left, is denied. REMAND As discussed in the introduction, in a rating decision dated March 2017, the Veteran was granted an increased disability rating for post-traumatic stress disorder (PTSD) from 50 percent to 70 percent, granted an increased disability rating for bilateral hearing loss from 0 percent to 30 percent, granted total rating based on individual unemployability due to service-connected disabilities (TDIU), and a 30 percent disability rating for coronary artery disease status post pacemaker implant was continued. The grants of an increased rating and TDIU were all effective December 8, 2016. As stated above, the Veteran expressed disagreement with the rating decision as to those issues. A SOC has not been submitted addressing these issues. In Manlincon, supra, the Court held that where a NOD is filed but a SOC has not been issued to the issue that the Veteran expressed disagreement with, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. Thus, the agency of original jurisdiction must issue a SOC as to the Veteran's claims of entitlement to an earlier effective date for an increased rating for PTSD, bilateral hearing loss, and TDIU, as well as the denial of an increased disability rating for coronary artery disease. Accordingly, the case is REMANDED for the following action: Issue a SOC pertaining to the following: entitlement to an earlier effective date for an increased rating for PTSD, bilateral hearing loss, and TDIU, as well as the denial of an increased disability rating for coronary artery disease. The Veteran should be notified that a timely substantive appeal must be filed in order to perfect the appeal. This claim should not be returned to the Board unless the Veteran perfects an appeal by filing a timely substantive appeal. 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). 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. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs