Citation Nr: 1807318 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 17-52 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disability (claimed as lower back condition). 2. Entitlement to service connection for a left leg disability, to include as secondary to a lumbar spine disability. 3. Entitlement to compensation under 38 U.S.C. § 1151 for coronary artery disease status post myocardial infarction. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran, S. W., and J. W. ATTORNEY FOR THE BOARD M. C. Wilson, Counsel INTRODUCTION The Veteran had active service from December 1953 to December 1955. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions that were issued by Regional Offices (ROs) of the Department of Veterans Affairs (VA) in August 2014 and May 2016. Jurisdiction over the appeal currently resides with the RO in Cleveland, Ohio. In a rating decision dated in March 1956, the RO denied the Veteran's claim of service connection for a back disability on the ground that chronic backache was noted during the Veteran's entrance examination and findings during service and on VA examination do not show any increase in the preservice condition that can be attributed to military service. The Veteran did not file a notice of disagreement with this rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2017); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the March 1956 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1105 (2017). In an August 2014 rating decision, the RO denied the Veteran's claim to reopen on the grounds that VA was not in receipt of any new and material evidence in support of his claim. However, the Board finds that the Veteran's post-March 1956 reports that his back pain was mild and inconsistent prior to service, but that he has experienced continuous pain since an in-service motor vehicle accident constitutes new and material evidence of possible in-service aggravation. See, e.g., December 2017 Board Hearing Transcript. As such, the Veteran's claim is reopened. See 38 C.F.R. § 3.156(b); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Jennings v. Mansfield, 509 F.3d 1362, 1366 (Fed. Cir. 2007); Morris v. Principi, 239 F.3d 1292, 1296 (Fed. Cir. 2001) (refusing to require the Board to explain its reasoning in the section of its opinion entitled "Reasons and Bases" rather than in the "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. § 7107(a)(2) (2012). The issues of the Veteran's entitlement to service connection for a left leg disability and compensation under 38 U.S.C.A. § 1151 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A back condition was noted at the Veteran's entrance into active service. 2. The evidence shows that the Veteran has a lumbar spine disability that increased in severity during active service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). If a preexisting disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(b) (2017). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (explaining that the burden is on the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease). Notably, mere congenital or developmental defects, absent, displaced or supernumerary parts, refractive error of the eye, personality disorder, and mental deficiency are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. § 4.9 (2017). Service connection may be granted for a congenital disease (a condition that is "capable of improving or deteriorating"), but not a congenital defect (a condition that is "more or less stationary in nature"). Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). To the extent that the Veteran has been diagnosed with conditions that are congenital in nature, the Board notes that multiple competent sources indicate that the Veteran's low back disability is capable of improving or deteriorating; thus, service connection may be granted. The Veteran's service treatment records (STRs) include a March 1953 entrance examination report that documents an abnormal spine. The examining clinician indicated that the Veteran had a chronic backache, his physical examination was negative, and his condition was not considered disqualifying. In May 1954, the Veteran complained of low backache and an X-Ray report showed minimal scoliosis of the lumbar spine with convexity to the left. Shortly thereafter, in July 1954, the Veteran was diagnosed with chronic lumbosacral strain after he was injured during a motor vehicle accident. Notably, he was treated by heat and hyperextension exercises constantly since that time, but without relief. He had some limitation in flexion and the most predominant physical finding was marked lordosis. After one week of treatment, the Veteran still experienced pain with forward flexion. Records dated from November 1954 to April 1955 document continued back complaints, but the Veteran's spine was clinically normal upon separation in December 1955. See December 1955 Report of Medical Examination. Within the year following his separation from service, the Veteran underwent a VA examination. At that time, physical examination showed a grossly normal back and no objective abnormalities were noted. See March 1956 VA examination report. The examiner noted that the Veteran was diagnosed with back strain in service, no residuals were found, and there was an X-ray finding of developmental spina bifida occulta. In March 1991, non-VA physician Dr. D. S. reported that a postural study revealed degenerative joint disease (DJD), degenerative disc disease (DDD), moderate arthrosis of the sacroiliac joints bilateral, moderate spondylosis of the lumbar spine, slight anatomical short leg on the right side, and a side-bending scoliosis to the left side. In November 1992, Dr. D. S. noted diagnoses of chronic low back strain, osteoarthritis, lumbar spine with DDD, spondylosis, anatomical short leg, and noncompensatory scoliosis. VA treatment records that are dated from October 2004 to November 2004 document a complaint of low back pain since 1954 and an impression of "minimal degenerative arthritic changes of the lumbosacral spine, with minimal marginal spur formation and narrowed disk space between L2 and L3 and L5 and S1." During his December 2017 Board hearing, the Veteran testified that his back did not really bother him before service, as he only experienced mild, random, and inconsistent backaches during that period, but that he has experienced continuous pain since the January 1954 motor vehicle accident. After careful review of the evidence, the Board finds that a preexisting back disorder was noted upon the Veteran's entry into service and the condition was minimally symptomatic and not considered disqualifying at that time. The Board also finds that his condition was aggravated during service, as the Veteran's continuous reports of back pain following the January 1954 motor vehicle accident show an increase in disability, and finds it highly probative that the Veteran was diagnosed with chronic back strain during and since service. Notably, the evidence does not show that the in-service increase in disability was due to the natural progress of the disease. Although the Veteran's spine was clinically normal upon his separation from service, the December 1955 separation examination findings and additional evidence do not constitute clear and unmistakable evidence that rebuts the Veteran's presumption of aggravation. See 38 C.F.R. § 3.306(b). Thus, the appeal is granted. ORDER Service connection for lumbar disc disease with arthritis is granted. REMAND Service Connection for a Left Leg Disability During his December 2017 Board hearing, the Veteran asserted that he has a left leg condition that had its onset after his in-service motor vehicle accident and that his family doctor told him that the condition developed secondary to his back injury. Thus, the Board finds that it must provide an examination and obtain a medical opinion that addresses whether the Veteran has a left leg disability that was caused or aggravated by his service-connected lumbar spine disability. 38 U.S.C. § 5103A(d) (2012). In addition, in light of the Veteran's report that he receives treatment from a chiropractor (Dr. J. S.) who may provide a medical opinion regarding the etiology of the Veteran's left leg disability, the Board finds that records of his treatment by Dr. J.S. should be associated with the claims file on remand. 38 U.S.C. § 5103A(b). Compensation Benefits Under 38 U.S.C. § 1151 The Veteran currently has coronary artery disease, status post myocardial infarction, and his relevant medical history includes a triple bypass and use of a pacemaker, defibrillator, and medication. He asserts that he underwent a stress test upon VA recommendation in 1997 and called VA three or four times to get the results of the test, which were never sent to his family doctor (Dr. Woods). See January 2015 Claim; see also December 2017 Hearing Transcript. He had a heart attack shortly thereafter and asserts that VA's failure to notify his private physician of his stress test results prevented him from taking preventive measures (such as stents) to prevent his heart attack. Id. Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. See 38 U.S.C. § 1151 (2012). For a claimant to qualify for such compensation, the additional disability must not be the result of the veteran's willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C. § 1151(a). For a claimant to be entitled to compensation when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361 (2017). In addition, entitlement to benefits based on the failure to diagnose a preexisting condition requires a determination that: (1) VA failed to diagnose or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered. 38 U.S.C. § 1151; Roberson v. Shinseki, 607 F.3d 809, 816-17 (Fed. Cir. 2010). VA has not yet obtained a medical opinion regarding this issue. Thus, an opinion should be obtained on remand. 38 U.S.C. § 5103A(d). While on remand, should also make reasonable efforts to obtain records of the Veteran's treatment by Dr. Woods. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to provide, or authorize VA to obtain, records of his relevant non-VA treatment, to include records from his family doctor (Dr. Woods) and his chiropractor (Dr. J. S.). In addition, any outstanding VA treatment records should be obtained and associated with the claims file. All efforts to obtain these records and any negative responses should be documented. 2. Provide an examination to determine the nature, onset, and etiology of any current left leg conditions. The claims folder should be made available to the examiner for review before the examination, with such review noted in the provided report. The examiner should record the full history of the disabilities, including the Veteran's competent account of his symptoms. (a) The examiner should diagnose all left leg conditions diagnosed during the appeal period (since April 2014). (b) For each disorder identified in (a), provide an opinion as to whether it is at least as likely as not that it had its onset during his period of active service or within one year of his discharge from active service. (c) For each disorder identified in (a), provide an opinion as to whether it is at least as likely as not that it was caused by his period of active service. (d) For each disorder identified in (a), provide an opinion as to whether it is at least as likely as not that it was caused by the Veteran's service-connected lumbar spine disability. (e) For each diagnosed disorder, is the left lower extremity impairment a manifestation of the Veteran's lumbar spine disability. (f) For each disorder identified in (a), provide an opinion as to whether it is at least as likely as not that it was aggravated by the Veteran's service-connected lumbar spine disability. The examiner is advised that the term "aggravation" is defined for this purpose as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. In offering each of these opinions, the examiner should specifically acknowledge and comment on the Veteran's competent reports of his symptoms during, and since, service. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report, which must reflect the examiner's consideration and analysis of both the medical and lay evidence of record. Please note that an examiner's report that (s)he cannot provide an opinion without resort to speculation is inadequate unless the clinician provides a rationale for that statement. 3. After completion of the above development, send the Veteran's claims folder to an appropriate VA clinician to obtain an opinion as to the potential relationship between VA's administration of a stress test in 1997 and his current heart disability. (a) First, provide an opinion as to whether the Veteran developed additional disability following his 1997 stress test. (b) Second, provide an opinion as to whether he developed additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in its treatment of the Veteran following the administration of the 1997 stress test. In addressing this matter, please respond to the Veteran's assertion that VA failed to notify his private physician of his stress test results, and thus, he was not able to take preventive measures (such as stents) to prevent his heart attack. (c) Third, provide an opinion as to whether the development of additional disability was an event not reasonably foreseeable. That is, was developing the additional disability the type of risk that a reasonable health care provider would have disclosed? (d) Fourth, in light of the results of the 1997 stress test, provide an opinion as to whether VA failed to timely treat the Veteran. That is, provide an opinion as to whether: (1) a VA clinician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have rendered treatment at earlier date; and (2) the Veteran suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report, which must reflect the reporting clinician's consideration and analysis of both the medical and lay evidence of record. Please note that a clinician's report that (s)he cannot provide an opinion without resort to speculation is inadequate unless the clinician provides a rationale for that statement. 4. After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and provided an opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs