Citation Nr: 1803094 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 04-14 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a disability manifested by muscle spasms. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty in the U.S. Army from November 1972 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which in relevant part denied service connection for a disability manifested by muscle spasms. In September 2007, the Board remanded the case for evidentiary development. In a November 2011 decision, the Board, in pertinent part, denied service connection for a disability manifested by muscle spasms. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2012, the Court granted a Joint Motion for Remand, vacating the Board's denial and remanding the appeal for additional development and consideration. Following the Court's remand, the Board remanded the case for further evidentiary development in October 2012. The Board remanded the case again in August 2016. In June 2007, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. The Veteran was advised in June 2012 that the VLJ who conducted his hearing is no longer employed at the Board. In July 2012, he indicated he did not desire a new hearing. Subsequently, in August 2016, the Veteran requested in writing a videoconference hearing in support of this appeal. In March 2017, the Board remanded the case to schedule the hearing. In June 2017, the Veteran testified before the undersigned by videoconference. In September 2017 the Board remanded the case for further evidentiary development. FINDING OF FACT Muscle spasms alone are not a disability entity for which service-connected compensation may be granted, and no underlying disabling pathology manifested by muscle spasms is shown. CONCLUSION OF LAW The criteria for service connection for a disability manifested by muscle spasms have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). The RO advised the Veteran of the evidence needed to substantiate his claims in an August 2001 notice letter. The RO further explained what evidence VA was responsible for obtaining or would assist in obtaining on the Veteran's behalf in support of his claims. A January 2014 letter advised the Veteran of alternative sources for obtaining evidence to support his claim. Regarding VA's statutory duty to assist, the Board initially notes that the Veteran's service treatment records (STRs) are unavailable for review in this case. In November 2003, the National Personnel Records Center (NPRC) indicated, in response to the RO's request for complete service treatment records, that all medical records had been mailed to the RO in New York on May 14, 1984, and there were no more records located at Code 13. There was a subsequent notation in the file that, after the Veteran filed his formal claim in February 2001, no claims folder was found at the RO, and the procedures for establishing a rebuilt file were to be followed. The Board is aware that when service records are unavailable through no fault of the Veteran, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. As will be explained below, however, the Board concludes that the heightened duty to assist has been met. In this case, the RO and Appeals Management Center (AMC) have attempted to obtain the Veteran's complete STRs, unsuccessfully. In July 2009, the Veteran was advised that VA had been unable to obtain his STRs and had determined that all efforts to obtain the records had been exhausted. The Veteran was asked to submit any STRs in his possession within 10 days of the date of the letter. In an August 2009 letter, the Veteran's attorney responded that the Veteran had no STRs in his possession. Also, in September 2009, the Veteran was advised to complete and return a NA Form 13055 in order for the AMC to reconstruct his STRs. The Veteran submitted a completed NA Form 13055 in October 2009 providing details of the dates and locations of his alleged treatment while in service. 38 U.S.C.A. § 5103A (b); 38 C.F.R. § 3.159 (c)(2). Moreover, pursuant to a Board remand, the AMC tried obtaining STRs from other possibly viable sources such as Darnell Army Hospital or by using the Defense Personnel Records Imaging System, and by requesting that the Veteran complete a NA Form 13055 (Request for Information Needed to Reconstruct Medical Data) so that an attempt to reconstruct his service records could be made. A request was made for the Veteran's clinical records from Darnell, Army Hospital, Ft. Hood, Texas, and from Moncrief Army Hospital, Ft. Jackson, South Carolina; however, a negative response was received from the NPRC in February 2010. After the Veteran submitted revised dates for when he was allegedly treated in service, another request was submitted. Again, a negative response was received. Further, a request to the Defense Personnel Records Imaging System (DPRIS) was made for any STRs on July 7, 2010, and a negative reply was received. No request was made to the Army Reserve Personnel Center because the AMC noted that the Veteran never reported any reserve duty and the evidence on file did not show a history of reserve duty. The RO did obtain the Veteran's service personnel file and it is of record. Further, the Veteran through his attorney submitted a corrected DD Form 215 reflecting a first enlistment date in September 1972. See letter dated August 10, 2009. In light of the foregoing, the Board finds that further efforts to obtain missing service records would be futile. The Board additionally notes that the claims file contains all available evidence pertinent to the muscle spasms claim. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of his responsibility to provide VA with any treatment records pertinent to his claimed disorder and the record contains sufficient evidence to make a decision on the claim. Pertinent post-treatment records relevant to the claims have been submitted or obtained, to the extent possible. Social Security Administration (SSA) records have been obtained. The Veteran was provided with a VA examination in August 2016 with respect to the muscle spasms claim. The examiner provided a well-reasoned rationale for her opinion. II. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In order to prevail on the issue of service connection, there must competent, credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus, or link, between the current disability and the in-service disease or injury and the present disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303 (d). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time that supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. §3.102. The Veteran seeks entitlement to service-connection for muscle spasms. He asserts that his muscle spasms began in service and he was once placed on a limited-duty physical profile as a result of the problem. He has reported that the current spasms are not confined to any particular part of the body and may hit any part, mostly from the neck down. He has also stated that his knees and ankles "give-out" and his right arm goes numb. As noted above, the Veteran's service treatment records are not available for review. However, the Veteran is considered competent to report having suffered from muscle spasms in service. Also, although the available service personnel records do not indicate that the Veteran had a profile in service as the result of muscle spasms, there is no clear indication in the record that his account of in-service muscle spasms is not credible. In May 1980 the Veteran was seen at a VA facility after being run over by a garden tractor at work. He complained of pains of the left hip, right shoulder, lower back, and pelvis. In August 1980 the Veteran reported cramps in his neck and body. A February 1984 VA hospital summary noted that the Veteran's complaints included muscle cramps in various muscle groups. A VA treatment record dated in July 2002 includes the Veteran's report of "periodic generalized muscle spasms" in the "past medical history" portion of the report. The Veteran is considered competent to report his experience of current muscle spasms, and there is no clear indication that his account is not credible. However, even if the Veteran has had muscle spasms since service as he has alleged, muscle spasms are not considered a disability for which service connection may be granted. By definition, a spasm is a sudden, violent, involuntary contraction of a muscle or group of muscles. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1728 (30th ed. 2007). "Disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), vacated in part and remanded on other grounds sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The Veteran was evaluated by a VA neurologist in April 2005 for his complaint of muscle spasms; however, the neurologist did not attribute his muscle spasms to an underlying disability. A VA muscles examination was conducted in August 2016. The Veteran reported that he was given a permanent profile in service, and that as long as he did not do something for more than 10-15 minutes, he was okay. He was still active with repelling and all other type training that he was still able to do. Otherwise he would get "severe cramps" in multiple sights of his body. If he kept going, the cramps would get worse if he did not stop the activity and had to massage the muscle until it resolved. The Veteran reported that the last time this occurred, he was sitting on the porch and his legs locked up. His family would help him get to bed and take Aleve and he would just shut down until it passed, sometimes 2-3 days. The Veteran stated that no medical provider had been able to diagnose why he had these symptoms. He had had other diagnoses over the years such as arthritis and rheumatoid arthritis that was unrelated. On examination, the Veteran's muscle strength was 5/5 in all muscle groups. There was no muscle atrophy. The examiner stated that the "Veteran's symptoms and complaints are nonspecific and generalized. Muscle exam today is normal. There is no chronic muscle condition diagnosis that has been given. Normal Muscle Exam." The examiner noted after review of the record that the earliest report of muscle complaints in the record was after the May 1980 incident when the Veteran was run over by a garden tractor at work. "There is no other noted trauma or diagnosis prior to 1980 to show objective injury to multiple muscles. There is no further documentation of muscle spasms until much later years. Without documentation of chronic muscle pain/spasms prior to 1980, it is more likely that his multiple chronic muscle spasms are related to being run over...in 1980 as there is no other documentation of trauma that could result in a chronic muscle pain other than this incident of early years following separation." The Board has carefully considered the Veteran's argument that he believes that service connection for muscle spasms should be granted because they allegedly had their onset in service and continue to affect him. The Veteran's assertions that he has an underlying chronic disability manifested by muscle spasms, that had onset in service or is otherwise related to service, is not competent. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to a diagnosis (and etiology) of the claimed muscle spasms. Determining an underlying clinical diagnosis for muscle spasms, and determining the etiology of such underlying clinical diagnosis, involves a complex medical determination which is the subject of advanced medical knowledge concerning complex biological processes, anatomical relationships, and physiological functioning within the human body. Thus, it is not a question within the competence of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, to the extent these lay statements are proffered to establish the nexus element, the Board finds that they are not competent and are also outweighed by the VA examiner's opinion. Furthermore, to the extent that the Veteran's muscle spasms could be considered an actual disability, the competent evidence demonstrates that they are due to a post-service injury. (See August 2016 opinion that it is more likely that multiple chronic muscles spasms are related to being run over a garden tractor/truck in 1980 as there is no other documentation of trauma that could result in a chronic muscle pain other than this incident of early years following separation.). For the foregoing reasons, the Board concludes that, although the Veteran has reported having had muscle spasms since service, he is not entitled to service-connected compensation benefits because muscle spasms without an underlying pathology are not a disability for VA compensation purposes and he has presented no evidence of an underlying disability to which his reported muscle spasms may be attributed. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). The Board recognizes that the Court of Appeals for Veterans Claims has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where, as here, the overall evidence of record fails to support a diagnosis of a disability, that holding is of no advantage. Therefore, because the preponderance of the evidence is against his claim, service connection for a disability manifested by muscle spasms is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102, a reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, because the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See Gilbert, supra. ORDER Service connection for a disability manifested by muscle spasms is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs