Citation Nr: 1802595 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-14 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral hip disability. 3. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU) prior to December 13, 2012. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from April 1974 to November 1974. This matter originally came before the Board of Veterans' Appeals (Board) from January 2012 and July 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified before a Veterans Law Judge (VLJ) in August 2014. A transcript is of record. The Board remanded this matter in September 2014. With respect to the claim of service connection for a bilateral hip condition, the Board's September 2014 remand directed the RO to issue a statement of the case (SOC) pursuant to 38 C.F.R. § 19.9(c) and Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). In September 2017, the RO issued an SOC. The Veteran perfected his appeal later in September 2017 by filing a VA Form 9. Accordingly, that issue remains a component of this appeal. The Board also remanded a claim of service connection for an acquired psychiatric disorder. Upon remand, the RO issued a rating decision in September 2017 granting service connection for major depressive disorder with psychotic features (also claimed as bipolar disorder and depression/anxiety disorder with memory loss) and granted an initial 50 percent disability evaluation effective November 5, 2007, and 100 percent from December 13, 2012. The Veteran has not filed a notice of disagreement (NOD) disagreeing with any appealable determination made in the September 2017 rating decision, including the schedular rating or effective date assigned by the RO. Thus, that matter is no longer before the Board. See 38 C.F.R. §§ 20.200, 20.201, 20.302; Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The instant claim for a TDIU is based on the service-connected psychiatric disorder, which the Veteran's only service-connected disability. Because the Veteran is assigned a 100 percent schedular rating for that disability from December 13, 2012, the TDIU remains pending only for the time period prior to that date. See Bradley v Peake, 22 Vet. App. 280, 292-93 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 249-251 (2010). In November 2017, the Board sent the Veteran a letter informing him that the VLJ who conducted the August 2014 Board hearing had become unavailable to issue a final decision in his appeal, and, as a result, that he had the right to an additional hearing before another VLJ, who would issue the final decision in his appeal. In November 2017, the Board received a response from the Veteran in which he declined this opportunity. See 38 C.F.R. § 20.707. Misfiled documents were discovered by the Board in this Veteran's claims file. The documents consisted of VA medical records pertaining to a different Veteran with the same name as the instant Veteran. These medical records show treatment in the 1980s for various conditions, including a low back disorder. The misfiled documents appear to have been mistakenly included in this Veteran's file, but do not appear to have had any impact in the instant appeal. Accordingly, the Board removed those records in January 2018 for association with the correct Veteran's claims file. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not suffer a traumatic back injury during service and a nexus to service is made unlikely by the most probative evidence. 2. The Veteran contends that a bilateral hip condition is secondary to a low back disorder, but he is not service-connected for a low back disorder. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a low back disability are not met. 38 U.S.C. §§ 1101, 1110, 1131, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria to establish service connection for bilateral hip disability, as secondary to a low back disability, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist A. Duty to Notify VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran was sent a comprehensive letter in December 2011, which was sent prior to the January 2012 rating decision on appeal. See 38 U.S.C. § 5103. A case-specific notice is not required and any other notice defect is deemed not prejudicial. See VAOPGCPREC 6-2014 (VA is authorized to provide notice under § 5103(a) before a claim is filed, including on the standard application forms); see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, the duty is satisfied. B. Duty to Assist VA is required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). VA will help a claimant obtain records relevant to the claim(s) whether or not the records are in Federal custody, and VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of the claim being decided herein. His service treatment records have been obtained and appear to be complete. In this regard, the Veteran testified at his Board hearing that he was told by the RO that some records were destroyed in a fire at St. Louis. The Board notes that this is a factual impossibility. On July 12, 1973, a fire at the National Personnel Records Center (NPRC) in St. Louis destroyed approximately80 percent of the records NPRC held for Veterans who were discharged from the Army between November 1, 1912, and January 1, 1960, and 75 percent of the records NPRC held for Veterans with surnames beginning (alphabetically) with Hubbard and running through the end of the alphabet, and who were discharged from the Air Force between September 25, 1947, and January 1, 1964. See VBA Manual M21-1, III.iii.2.E.1.a., Records Destroyed in the Fire at NPRC. Here, the Veteran's service started in 1974, which was nearly one after the fire at NPRC. Thus, it is impossible that his records were destroyed in the fire. Therefore, there is no indication of missing STRs on this basis. The Veteran has alleged treatment at a civilian hospital during service in July 1974. Such records are not a part of his STRs, but are not expected to be so. See, e.g., VBA Manual M21-1, III.iii.2.A.1.e. Types of Records Included in STRs. No efforts have been made to attempt to obtain the records. Such assistance is not necessary however. First, the Veteran has been inconsistent in describing such treatment. As explained herein below, the Veteran has also stated that he did not seek treatment for the alleged back injury during service. In fact, the Board finds his testimony as to occurrence of this injury to be noncredible. The existence (or nonexistence) of the hospital records does not impact the Board's credibility finding. To this extent, it is the Board's finding that the alleged injury did not, in fact, occur, which means, in turn, that there is no credible basis to believe that any such hospital records would exist. Moreover, he also testified at the Board hearing that he does not know the name of the facility. Board Hr'g Tr. 8-9. He could only remember that he passed the site of the Hindenburg crash on the way to the facility. Board Hr'g Tr. 9. In order to invoke the duty to assist, he must be able to provide enough information to identify and locate the existing records, including the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. See 38 C.F.R. § 3.159(c)(1)(i). Because he cannot do so, there is no basis to remand to attempt to obtain those records. Otherwise, all sufficiently identified VA treatment records during the appeal period are of record. The Veteran has not sufficiently identified any other VA medical records he desires to be obtained. His records from the Social Security Administration (SSA) were also obtained, and these contain extensive private treatment records. The private records the Veteran has authorized VA to obtain have also been obtained. He did not identify and authorize VA to obtain any other relevant information. He responded in April 2017 that there were no further private medical records available to obtain. Furthermore, a VA examination was conducted in August 2017, and it is adequate to inform the Board's judgment on those complex medical matters raised in this appeal. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A (d)(2). Accordingly, the evidentiary record appears to be complete. The Board also finds that there was substantial compliance with the September 2014 Board remand directives. Specifically, the Veteran was sent a letter in July 2015 asking that he identify the health care providers having additional treatment records pertinent to his appeal. He responded in April 2017 informing VA that there were no further medical records to obtain. Next, as directed, the Veteran underwent a VA examination in August 2017 to address the complex nexus questions raised by his claim. This VA examination, as indicated, is adequate to evaluate the disability. Finally, the matter was readjudicated in a September 2017 supplemental statement of the case (SSOC), as directed by the Board. Accordingly, there was substantial compliance with the prior Board remand directives, and no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits at this time. II. Analysis The Veteran is seeking service connection for a low back injury, which he contends is a direct result of an injury during service in July 1974. He is also seeking service connection for a bilateral hip condition, which he contends is secondary to a back condition. A. Applicable Law 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. "To establish a right to compensation for a present disability, a veteran 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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. B. Discussion (1) Low back The Veteran testified at his August 2014 Board hearing that he was injured during service while helping to load oil drums into a truck. Board Hr'g Tr. 5. His job was to move the drums to the back of the truck by sliding them off a pallet and into the back of the truck. Board Hr'g Tr. 5. One of the drums slipped and started to fall on another solider, so he used all his power to throw the drum. Board Hr'g Tr. 5-6. This caused him to lose his balance and come down on the bed of the truck, striking his fifth and sixth vertebrae. Board Hr'g Tr. 6. He immediately lost feeling in his legs. Board Hr'g Tr. 6. He was then taken by ambulance to a civilian hospital off base. Board Hr'g Tr. 6. A radiologist and neurosurgeon showed him X-rays, revealing a chipped spine. Board Hr'g Tr. 6. He was given pain medication and put on restricted duty. Board Hr'g Tr. 7. After careful consideration, the Board finds that service connection for a low back condition is not warranted. Initially, there is no material dispute that the Veteran is currently diagnosed with a low back condition. A VA examiner in August 2017 confirmed degenerative arthritis of the spine with compression fracture at L1. Therefore, the first requirement to establish service connection, evidence of a current disability, has been met as to this claim. See Walker, 708 F.3d at 1337. Nonetheless, the claim is denied because there is no credible evidence of the in-service injury. The injury is not reflected in the STRS, and the Veteran's statements of this injury cannot be found credible evidence of the injury for multiple reasons. First, his statements have been inconsistent. As indicated, he testified at the Board hearing, that he was taken to a civilian hospital, where he saw a radiologist and neurosurgeon, who told him he had chipped his spine. Board Hr'g Tr. 6-7. By comparison, he wrote in an October 2010 statement that "I did not seek treatment." (Emphasis in original.) Rather, according to this statement, a friend gave him a back brace and the sergeant put him on light duty. This conflicts with his testimony indicating emergency hospital treatment for the injury. Also inconsistent, he wrote in a February 2011 statement that he was taken to the hospital on base, where he was diagnosed with a chipped vertebrae. Although this is consistent with his testimony that he was seen at a hospital, it conflicts with his testimony that it was a civilian hospital. He has also been inconsistent in describing the nature of the injury at the time. For instance, he testified at the Board hearing that he fell on the bed of the truck. Board Hr'g Tr. 5-6. Yet, at an August 2017 VA examination, he reported that he fell out of the truck. Similarly, where he reported a "chipped" vertebrae at the Board hearing, he wrote in his April 2014 VA Form 9 that he had a "cracked" vertebrae. He also stated during a May 2017 Mental Health examination that he "broke" his back. Also inconsistent, he informed a VA examiner in August 2017 that he was paralyzed from the waist down for 14 days. This conflicts with his Board testimony that he only lost feeling in his legs. Board Hr'g Tr. 6. It also conflicts with his October 2010 statement that he did not even seek treatment for the injury. These inconsistencies show that the Veteran is not a reliable historian. More generally, the Veteran's medical records also tend to confirm that he is not credible. For instance, at a May 2017 VA Mental Health examination, the examiner identified several inconsistencies between what the Veteran reported and what was documented. The examiner found that the Veteran "was a very poor historian and his reports did not always match with documentation in the medical record." Earlier, in February 2008, the Veteran admitted that he had "told a story" (i.e., misrepresented the truth) when cancelling a VA medical appointment. At VA mental health examinations in September 2008 and January 2010, formal testing was invalid due to over-reporting of symptoms. Other VA outpatient records cite the Veteran as being a poor or unreliable historian, such as in October 2009. These medical records do not directly contradict his testimony as to the occurrence of the in-service injury, but nonetheless bear on his credibility as they indicate a propensity to alter or distort the truth. Further undermining the credibility of his testimony, the STRs do not indicate the occurrence of such an injury. There are no medical records reflecting complaints or treatment for a back injury. In fact, at his October 1974 separation examination, the Veteran affirmatively denied back pain. He also denied ever having been a patient in any type of hospital. Thus, where he was specifically asked if he had ever had hospital treatment, he affirmatively denied such treatment. This directly contradicts, by affirmative evidence, his current Board hearing testimony. The Board finds the separation examination to be the more accurate reflect of his condition during service because it was contemporaneous to the event and because there is no indication at that time that he was attempting to misrepresent his history, as is true now. See AZ v. Shinseki, 731 F.3d 1303, 1315-16, 1317-18, n.13 (Fed. Cir. 2013); Fed. R. Evid. 803(6), (7); Caluza, 7 Vet. App. at 511. Of further importance, the Veteran underwent a mental health evaluation during service in October 1974. The August 2017 VA examiner explained that this mental health evaluation "surely would have mentioned such a severe injury." This examiner's assessment establishes why, as a medical matter, there would be some type of documentation of the injury if it had occurred. See AZ v. Shinseki, 731 F.3d 1303, 1315-16, 1317-18, n.13 (Fed. Cir. 2013); see also McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring). Nor are there any administrative documents showing that he was put on profile, as he testified. Administrative profiles for restricted or light duty after an injury are routinely and regularly kept with the STRs. Therefore, the absence of such documents again indicates that such an event did not likely occur. See AZ v. Shinseki, 731 F.3d at 1318; see also Fountain v. McDonald, 27 Vet. App. 258, 273, 274-75 (2015) (the Board may make findings within its competence). Thus, overall, the STRS tend to indicate that the injury did not occur, which further undermines the reliability of the Veteran's testimony. In July 2014, a third-party witness wrote a supporting statement. He explained that he had known the Veteran for 52 years, including since they went into service together. He recalled that the Veteran arrived at his station in late August 1974. They went swimming, at which time he saw faded bruises on the Veteran's back and sides. The Veteran had told him that they were unloading a truck of oil in drums when he lost control, falling and striking the corner of the truck bed. This witness's statement is considered credible to the extent that it establishes his memory of what he saw and what the Veteran told him approximately 40 years prior. It is, however, well within the Board's common knowledge and ordinary experience as a non-medical expert to understand that human memory is not perfect. "At best the human memory is fallible, and [it] can only demand that the material facts be accurately remembered and correctly given in evidence." U.S. v. Hall, 44 F. 864, 876 (D.C.Ga. 1890). Therefore, the witness's statement is considered to have limited probative value establishing only his current recollection that he witnessed bruising on the Veteran's back during service with the Veteran attributing it to an injury. As the witness did not directly witness the alleged injury, his recollection is not considered probative evidence that it actually occurred or that any bruising resulted from that injury. Thus, overall, there is no credible evidence establishing the occurrence of the injury as the Veteran described at this Board hearing. Even if he had a minor injury resulting in bruising during service as indicated by this witness, there is no probative evidence indicating a relationship between the injury and the current diagnosis. A private neurosurgeon gave a positive opinion in September 2011 indicating that "the most likely conclusion is that his degenerative changes were accelerated because of his injury in 1974." However, this conclusion was based on the Veteran's noncredible report that he sustained a "fracture of a bone spur and a bone spur formation." In fact, the neurosurgeon specifically qualified the opinion by stating that he did not have films to review from that time. Thus, the factual foundation of the neurosurgeon's opinion was entirely predicated on an injury of the indicated severity. The neurosurgeon did not indicate that an injury of much less severity would also have resulting in the current diagnosis. Thus, such an inference is not permissible from this opinion. Moreover, the underlying rationale of the neurosurgeon's rationale is equivocal and conjectural. For instance, the neurosurgeon reasoned that "sustaining an injury to your back at that point in your life could predispose you to accelerate degenerative changes" (emphasis added) and that "it is not inconceivable that this injury in 1974 has contributed to his issues today." The neurosurgeon did not explain how he reached his conclusion based on such speculative and conjectural bases. This tends to undermine the probative weight of this opinion. See, e.g., Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009). The Veteran testified at the Board hearing that a private doctor gave a favorable nexus opinion relating his in-service injury to his current diagnosis. Board Hr'g Tr. 12. Even assuming the Veteran is accurately and comprehensively conveying this doctor's opinion, the Board is unable to assess the evidentiary value of such a medical opinion as it is not reflected in the claims file. More specifically, the Board cannot determine the factual premise or the reasoning underpinning such a favorable medical opinion. Therefore, this doctor's medical opinion has little probative value and is not sufficiently probative or persuasive to indicate a nexus to service. See Nieves-Rodriguez, 22 Vet. App. at 304; Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Nor is this missing opinion the type of evidence that is within VA's duty to assist to clarify from the private doctor. See Savage v. Shinseki, 24 Vet. App. 259, 269-71 (2011). The Veteran has not given a credible statement indicating a continuity of symptoms after the injury up to the present. As indicated, he denied any back pain at his service separation examination. He testified at his Board hearing that he had no more pain for a couple of years after the injury healed; it did not recur until approximately 1978 or 1979. Board Hr'g Tr. 10. This is consistent with a release of information he submitted in February 2011, on which he identified treatment "in late 1970 and 1980." (It is assumed that he meant to write "late 1970s and 1980" as 1970 would have been four years prior to his service.) Most probative, the August 2017 VA examiner concluded that the condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury. As indicated, the VA examiner explained that the in-service injury would have been documented in an October 1974 evaluation, if it had occurred. The examiner also found significant that the first documentation of back complaints after service was when he fell in 2009 at home and was treated at a hospital. Because the examiner informed the Board of the medical significance of the absent findings during service, which is consistent with the Board's finding as to the nonoccurrence of the injury, the opinion does not impermissibly rely on an absence of evidence as negative absence. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Thus, the Board finds the August 2017 VA examiner's opinion to be persuasive and probative as to the nexus element of the claim. Accordingly, a nexus to service is not established. In conclusion, the weight of the most credible and competent evidence establishes that the current low back diagnosis condition is unlikely to have resulted from an in-service injury. For this reason, the evidence is not in equipoise all material elements of the claim. Therefore, the appeal cannot be granted. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan, 573 F.3d at 1287. (2) Bilateral Hips The Veteran contends that a current bilateral hip condition is secondary to a low back disorder. Because the claim of service connection for the primarily disability, the low back disorder, is denied, the derivative claim of service connection for the secondary condition, a bilateral hip disorder, cannot be granted on a secondary basis as a matter of law. See 38 C.F.R. § 3.310; DeLisio v. Shinseki, 25 Vet. App. 45, 59 (2011). Accordingly, the claim is denied. ORDER Service connection for a low back disability is denied. Service connection for a bilateral hip disability is denied. REMAND The Board has conducted a further review of the TDIU issue, but finds that additional action is warranted before a final decision may be reached. The RO previously granted a 100 percent schedular rating for the Veteran's psychiatric disability beginning December 13, 2012. The RO granted this total rating based the date of a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (currently archived in Virtual VA), which the RO found to support a 100 percent rating. The Board notes that a May 2017 VA examination describes a disability level that appears to have been materially the same before December 13, 2012. The May 2017 VA examination summarized that the Veteran would have significant problems at a job due to paranoia, irritable outbursts, and isolation (stays in his house most of the time, praying for hours at a time). The VA examiner found that the Veteran's depression (problems with motivation and mood) and anxiety (panic attacks) would increase the likelihood of tardiness and absenteeism, and his paranoia and irritability would increase the likelihood that he would have conflicts with co-workers and supervisors. Also, according to the VA examiner, the Veteran's sleep disturbance and memory and concentration problems would increase the likelihood that he would make errors and have poor performance at work. As early as a March 2006 VA Mental Health consultation, the Veteran was described as having panic attacks 1 to 4 times per week; poor concentration and memory; being easily aggravated and argumentative; and isolating due to panic and agitation. In fact, his VA psychiatrist completed a form in October 2006 in support of his application for disability benefits with the Social Security Administration (SSA). The psychiatrist stated that the Veteran had severe psychiatric symptoms that made him unable to pursue any gainful employment due to severe mood disorder with episodes of impulsivity, inability to concentrate, forgetfulness, and poor judgment. A similar conclusion was reached in a November 2007 SSA Mental Assessment. This evidence indicates that the Veteran's psychiatric disability precluded gainful occupation prior to December 13, 2012. As such, the matter should be referred to the Director, Compensation Service, for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: After completing any preliminary action needed, refer the matter to the Director, Compensation and Pension Service for extraschedular consideration as to whether the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected psychiatric disability prior to December 13, 2012. Then, return the matter to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs