Citation Nr: 9931144 Decision Date: 11/01/99 Archive Date: 11/17/99 DOCKET NO. 96-25 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from February 1972 to February 1974, and from November 1979 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from regional office (RO) rating decisions of August 1995 and November 1996. In September 1999, within 90 days of the transfer of the file to the Board, the veteran submitted additional evidence directly to the Board, which had not been reviewed by the RO. The veteran did not waive RO consideration of this evidence, and the veteran's representative has requested that the case be remanded, pursuant to 38 C.F.R. § 20.1304 (1999). However, in view of the content of the additional evidence, although the case will be remanded, a decision as to the whether the claims are well-grounded will be entered first, to permit development pursuant to the statutory duty to assist. See Morton v. West, 12 Vet. App. 477 (July 14, 1999) (VA cannot assist a claimant in developing a claim which is not well grounded). FINDINGS OF FACT 1. The veteran has a current diagnosis of lumbar radiculopathy and degenerative changes of the lumbar facets. 2. The veteran contends that he injured his back in service, and that he has had low back pain with radiculopathy since that time. 3. There is medical evidence linking the veteran's history of continuous symptoms with current disability. 4. The veteran contends that he injured his cervical spine in service, and that he has had cervical spine pain and upper extremity radicular symptoms since that time. 5. There is current medical evidence diagnosing cervical foraminal encroachment, likely due to inservice injury. CONCLUSION OF LAW The claims of entitlement to service connection for a lumbar spine disability and a cervical spine disability are well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). In regard to establishing a well-grounded claim, the third Epps and Caluza elements (nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by evidence showing postservice continuity of symptomatology, and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology, and the veteran is competent to provide evidence of symptoms. Savage, 10 Vet. App. at 496. However, medical evidence is required to provide a medical nexus between his current condition and the putative continuous symptomatology. Voerth v. West, No. 95-904 (U.S. Vet. App. Oct. 15, 1999). Thus, for a well-grounded claim, there must be competent medical evidence to provide a relationship between his current disability and either an in-service injury or his continuous symptomatology. Id. Low Back Disability The veteran contends that he has a low back disability, manifested by low back pain and radiation into the right lower extremity, which resulted from an inservice motor vehicle accident; which was chronic in service; and which has persisted to the present time. Electromyogram and nerve conduction studies in September 1995 were indicative of right L5 radiculopathy. Although later studies, in September 1996, were apparently normal, evidence is not weighed until after a claim is found to be well- grounded. King. In September 1999, C. N. Bash, M.D., wrote that the lumbar radiculopathy was associated with the degenerative changes of the lumbar facets noted on a computerized tomography (CT) scan of the lumbar spine in October 1996. Consequently, there is medical evidence of current disability, the first element of a well-grounded claim. As to the second element, inservice incurrence, in addition to the veteran's contentions, service medical records disclose that from October to December 1982, the veteran was treated for symptoms including low back pain radiating into the right lower extremity. Although not definitively diagnosed, right sciatica was noted as a possible diagnosis. However, an inservice diagnosis is not necessary to meet the requirement of service incurrence, and the second element is satisfied by the veteran's contentions. Turning to the third element, a nexus, in May 1995, a VA neurological examination was conducted, at which time the veteran reported low back pain radiating down the right lower extremity since an inservice motor vehicle accident. The impression was that there was no evidence of neurological deficits on physical examination; but that, despite the lack of neurological findings he did continue to have low back and right leg pain since the accident in 1981 or 1982. A few months later, in September 1995, nerve conduction studies and an electromyogram were conducted, which were indicative of a right L5 radiculopathy. In June 1996, VA outpatient treatment records show the veteran was referred for a neurology consultation for symptoms including sciatic pain on the right. The veteran reported a history of chronic back pain since 1981, after a motor vehicle accident. On exertion, the pain worsened, and radiated to the right leg. The impression was probable radiculopathy, chronic, with chronic back pain. Finally, in his September 1999 letter, Dr. Bash wrote that he had reviewed the VA claims file. He summarized the pertinent service medical records, as well as much of the VA medical records described above. It must again be stressed that although he was not provided, or did not mention, all of the VA medical records contained in the claims file, the evidence is not weighed, nor credibility assessed until the merits stage of the development. King, supra. Dr. Bash concluded that he agreed with the diagnosis of lumbar radiculopathy, noting that the "symptoms described by the patient during active duty, and later are consistent with radiculopathy. These symptoms are consistent with the EMG study indicative of lumbar radiculopathy at the same level." In addition, he wrote that the lumbar radiculopathy was associated with the degenerative changes of the lumbar facets noted on the CT scan in October 1996. However, he also noted that the etiology of the conditions could not be determined with certainty, but the veteran had a parachutist badge, indicating occupational strain during service, and it was his impression that the degenerative changes of the lumbar facets and lumbar radiculopathy currently present may be long term consequences of the trauma and symptoms recorded in service. Statements from doctors which are inconclusive as to the origin of a disease cannot fulfill the nexus requirement to ground a claim. Warren v. Brown, 6 Vet.App. 4, 6 (1993). However, a physician's statement regarding an etiological connection must be viewed in its full context to determine whether it is sufficiently conclusive as to fulfill the nexus requirement of a well-grounded claim. Lee v. Brown, 10 Vet. App. 336, 339 (1997). The May 1995 neurological examination, although failing to find any neurological deficits on physical examination, nevertheless included an impression of continued low back and right leg pain since the accident in 1981 or 1982. Moreover, a few months later, in September 1995, nerve conduction studies and an electromyogram were conducted, which were indicative of a right L5 radiculopathy. Further, Dr. Bash concluded, from his review of this evidence, that he agreed with the diagnosis of lumbar radiculopathy, and that the symptoms described by the veteran in service and later were consistent with radiculopathy, and with the EMG study indicative of lumbar radiculopathy. However, later in his opinion, Dr. Bash opined that degenerative changes of the lumbar facets and lumbar radiculopathy currently present may be long term consequences of the trauma and symptoms recorded in service, which is not of sufficient certainty as to establish a nexus. Nevertheless, in carefully examining the context of each statement, it appears that the latter, more tentative statement is referring to the claimed in service accident, and other possible traumas, while the more definite opinion pertains to the veteran's history of symptoms. Thus, Dr. Bash's opinion, together with the VA examinations in 1995, provide a necessary nexus between the veteran's purported continuing symptoms and current disability. See Voerth, Savage, supra. As a result, the claim is well-grounded. In this regard, a well-grounded claim need not contain evidence sufficient to grant the claim; it must simply provide a "preliminary threshold of plausibility with enough of an evidentiary basis to show that the claim is capable of substantiation." Wallin v. West, 11 Vet.App. 509, 514 (1998). Cervical spine disability The veteran also contends that he injured his cervical spine in the motor vehicle accident, which has caused radicular symptoms in his upper extremity, and that his symptoms have continued to the present time. In addition, Dr. Bash, in his September 1999 opinion, which was based on a review of several items of medical evidence in the claims folder, agreed with an X-ray of May 1995, which diagnosed foraminal encroachment at C4-5, and concluded that it was likely that the veteran had a thoracic outlet syndrome; both of these likely explained his right hand and right shoulder sensory and motor deficits found on the June 1996 neurologic examination. Finally, he concluded that the inservice motor vehicle accident, with upper chest, thoracic outlet, and head injury likely resulted in the subsequent development of the cervical foraminal encroachment and thoracic outlet syndrome. This opinion supplies medical evidence of current disability and a nexus, which, together with the veteran's statements regarding service incurrence, constitute a well-grounded claim. ORDER The claim of entitlement to service connection for a low back disability is well grounded. To this extent only, the appeal as to that issue is granted. The claim of entitlement to service connection for a cervical spine disability is well grounded. To this extent only, the appeal as to that issue is granted. REMAND As discussed above, both claims are well-grounded; consequently, VA has a duty to assist the veteran in the development of his claims. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As has been pointed out by the veteran, there have been inconsistent results obtained on EMG, X-ray and other tests conducted to determine the existence of current low back and cervical spine disabilities. In addition, the veteran has submitted copies of VA treatment records, which indicate ongoing treatment. Many of these copies were annotated by the veteran to the extent that it is difficult to separate the clinical notations from those of the veteran. The duty to assist involves obtaining relevant treatment records. Moreover, since the case has reached the merits stage, where the credibility and weight of the evidence must be assessed, the absence of any medical evidence of a low back or cervical spine disability from discharge to 1995 has become more important; therefore, the veteran should be asked to provide the locations and dates of any relevant treatment received during this time period. Further, the duty to assist includes obtaining adequate examinations, and the veteran must be afforded orthopedic and neurological examinations, in light of his symptoms, to determine the nature and extent of current low back and cervical spine disabilities, as well as whether any such disabilities were of service onset. In this regard, Dr. Bash, according to his summary of evidence, did not have all of the treatment records available when he provided his opinion. The veteran has contended that the VA medical records contain false information, that VA physicians have lied to him, and that VA physicians have apparently conspired against him to deny the validity of his claim. He is advised that "'[p]rinciples of administrative regularity dictate a presumption that government officials "have properly discharged their official duties."'" Warfield v. Gober, 10 Vet.App. 483, 485 (1992); Saylock v. Derwinski, 3 Vet.App. 394, 395 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926). "Clear evidence to the contrary" is required to rebut this presumption of regularity. Warfield. Accordingly, to ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following: 1. The RO should request that the veteran provide a list containing the names, locations, and dates of treatment of any physicians, hospitals, or treatment centers who have provided him with treatment for low back or cervical spine complaints, or for complaints involving the extremities, since his separation from service in September 1988 to the present, including, but not limited to, from any VA Medical Centers (i.e., Little Rock, McClellan, etc.). After securing necessary authorizations, the RO should obtain the records of any identified treatment. If private treatment is reported and those records are not obtained, the veteran and his representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (1999). With respect to any VA records, all records maintained are to be requested, to include those maintained in paper form and those maintained electronically (e.g., in computer files) or on microfiche. Associate all records received with the claims file. 2. The veteran should be scheduled for examination by VA orthopedic and neurological specialists to determine (1) the veteran's current low back and cervical spine diagnosis(es), including radicular manifestations; and (2) whether any such disability(ies) so diagnosed are etiologically related to an inservice motor vehicle accident in June 1981, or any other inservice events. The examiners should confer and discuss the case. As to the low back specifically, it should be determined whether the inservice symptoms of back and right leg pain noted from October to December 1982 are etiologically related to any current low back disability. In addition, the significance of apparent discrepancies in nerve conduction study and electromyogram results obtained in September 1995 versus those obtained in September 1996, and cervical spine X-rays taken in May 1995 versus June 1996, should be discussed. Also, the significance, if any, of the difference in findings on a lumbar myelogram and a CT scan conducted in October 1996 should be discussed. If indicated, these or any other studies needed to address the above questions, or to resolve questions raised by should be accomplished prior to a final opinion. Prior to conducting the examination, the examiners should be provided a copy of this remand and the veteran's claims folder and should review the veteran's medical history, including his service medical records. The examiners should indicate in the examination report that this has been accomplished. All conclusions should be explained in detail, and the evidence relied upon for the conclusions should be identified, as the supporting statements are essential to the Board's determination. 3. After the development requested above has been completed, the RO should review the veteran's claims folder and ensure that all the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report(s). If the requested examination(s) does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report(s) must be returned for corrective action. 38 C.F.R. § 4.2 (1999); see also Stegall v. West, 11 Vet. App. 268 (1999). 4. Readjudicate the veteran's claims, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand, including the VA examination. If the decision with respect to the claims remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and with a reasonable period of time within which to respond thereto. The claims folder should then be returned to the Board for further appellate consideration. The veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this REMAND are to obtain additional information and to comply with all due process considerations. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. P.M. DILORENZO Acting Member, Board of Veterans' Appeals