Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0812782

Decision Date: 04/17/08 | Archive Date: 05/01/08

DOCKET NO. 03-34 990A

On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia

THE ISSUES

1. Entitlement to service connection for arthritis of the lumbar spine.

2. Entitlement to service connection for residuals of a left arm or left forearm injury.

3. Entitlement to service connection for a left shoulder disability.

REPRESENTATION

Veteran represented by: Sean A. Ravin, Esquire

WITNESS AT HEARING ON APPEAL

Appellant & Craig N. Bash, M.D.

ATTORNEY FOR THE BOARD

J. Smith, Associate Counsel

INTRODUCTION

The veteran served on active duty from May 1976 to May 1979.

The veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Roanoke, Virginia, that denied the benefits sought on appeal.

In May 2006, the Board denied service connection for the issues on appeal. The veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (the Court), which in an August 2006 Order, vacated the May 2006 Board decision and remanded the case for readjudication consistent with a Joint Motion for Remand.

The Board notes that the issues of entitlement to service connection for a psychiatric disorder and for incontinence, and entitlement to a total disability rating based on unemployability were referred to the RO in the Board's May 2006 decision. It does not appear that any action has been taken on these matters since the Board's previous decision. As such, the issues are again referred to the RO for any and all appropriate action. In addition, the issue of a neck disability is raised by the medical record. In an April 2006 report, Craig N. Bash, M.D., attributes a current neck disability to events in service. This issue is also referred to the RO for appropriate action.

The issues of entitlement to service connection for residuals of a left arm or forearm injury, and entitlement to service connection for a left shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDING OF FACT

The veteran's arthritis of the lumbar spine was incurred in service and has been causally related to service.

CONCLUSIONS OF LAW

The criteria for service connection for arthritis of the lumbar spine have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

The veteran seeks service connection for arthritis of the lumbar spine. He contends his back was injured on active duty when he fell approximately 20 feet from an 18-wheeler truck while he was painting and cleaning the truck.

To establish service connection, the record must contain (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. In other words, entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service.

Here, the Board finds that the three elements of service connection have been satisfied. The veteran has a current diagnosis of degenerative disc disease of the lumbar spine, documented most recently in a June 1999 emergency department record from a private hospital. There is also evidence of the in-service incurrence of a low back injury as the veteran was treated in service in January 1979 for muscle spasms of the lower lumbar back. On his Report of Medical History at separation, the veteran reported experiencing recurrent back pain.

Also, the veteran has maintained throughout the record that his back disability is due to the fall from the truck sustained in service, even though there is no documentation of this incident in his service medical records. As noted by the Court through the Joint Motion for Remand, the Board cannot determine that a veteran's statements lack credibility merely based on a lack of such documentation in the service medical records. Buchanan v. Nicholson, No. 05-7174 (Fed. Cir. June 14, 2006). Moreover, the Court noted that the Board cannot reject a medical opinion formed on the basis of the veteran's reported medical history, without first making a finding that the veteran's allegations are not credible. Coburn v. Nicholson, 19 Vet. App. 427, 432 (2005). Here, the Board finds no basis upon which to reject the veteran's statements about the fall he sustained in service. In his September 2003 notice of disagreement and in a July 2003 VA Form 21-4138, the veteran provided details of his thirty week assignment painting trucks, how the injury occurred, and what happened afterward. There is no evidence to the contrary and the benefit of the doubt must be afforded to the veteran.

Additionally, the Board finds that at a minimum, the evidence is in equipoise as to a nexus to service. Evidence supporting the veteran's claim includes the February 2006 hearing testimony of Dr. Bash and a subsequent written statement of Dr. Bash from April 2006. In his April 2006 statement, Dr. Bash attributes the veteran's current degenerative disc disease to the fall sustained in service based on the veteran's medical history, a physical examination of the veteran, a review of the claims file, and the typical course of the degenerative process of the spine under standard medical theory.

Evidence against the veteran's claim includes April and October 2007 statements of William S. Ogden, M.D., however these opinions are somewhat contradictory and lacking in rationale. In his April 2007 letter, it appears Dr. Ogden was attempting to provide a negative opinion as he mentions that the veteran's separation examination was normal, discredits the April 2006 testimony of Dr. Bash, and emphasizes that there is no documentation of the fall alleged by the veteran in his service medical records. However, he then states, "I do not think, as likely as not, that he had no service connection for his problems with his back," which is opposite of what it appears he intended. In July 2007 the Board sought clarification of this opinion from Dr. Ogden, and asked for a rationale for any conclusion reached. In October 2007 Dr. Ogden provided an addendum opinion containing a recitation of the same confusing statement from April 2007, and rests the conclusion on the lack of in- service documentation of the fall alleged by the veteran. As stated above, the Board does not discount the veteran's allegations regarding his fall in service. For this reason, given the ambiguity of Dr. Ogden's reports, and because Dr. Bash physically examined the veteran and provided a clear rationale for his conclusion, the Board attributes more weight to Dr. Bash's opinion.

In addition, evidence potentially against the veteran's claim includes an April l998 decision of the Social Security Administration granting the veteran benefits for his back disability, which was attributed to a 1994 accident sustained at work. However, the Board is not dissuaded by this because, as described in Dr. Bash's report, the degeneration of the spine is a process that can exacerbate over time, including by any subsequent injuries, but may still be attributed to the original injury. Also, in May 1995 the veteran was diagnosed with thoracic and low back pain "of unclear etiology," but this evidence is not directly negative evidence.

For these reasons, the Board finds that the positive and negative evidence is equipoise. Thus, service connection is warranted for the veteran's arthritis of the lumbar spine.

ORDER

Service connection for arthritis of the lumbar spine is granted.

REMAND

At the outset, the Board notes that during the pendency of this appeal the Court issued Dingess v. Nicholson, 19 Vet. App. 473 (2006), which requires that notice be provided concerning the evaluation or the effective date that could be assigned should service connection be granted, Dingess v. Nicholson, 19 Vet. App. 473 (2006). Complaint notice should be provided.

The veteran seeks service connection for residuals of a left arm or left forearm injury and a left shoulder disability, which he attributes to the fall sustained during active duty. A remand is required for these claims in order to afford the veteran a VA examination for each condition. As noted by the Court in the Joint Motion for Remand, under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.

First, upon a thorough review of the medical record, the Board can find no current diagnosis pertaining to the veteran's left arm or forearm, or his left shoulder. In March 1995 the veteran was diagnosed with chronic pain syndrome without specific mention of his left arm or shoulder, and in October 1995 he received a diagnosis of pain syndrome with polytraumatism sequelae. Complaints of pain alone are not enough to establish service connection. There must be competent medical evidence of a current disability resulting from that condition or injury. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). In a June 1996 private medical report, the veteran provided a history of having torn ligaments in his left shoulder, but there is no objective medical evidence showing a ligament tear. In an August 1998 treatment note the veteran was diagnosed with left shoulder pain, but again, complaints of pain alone are not enough to establish service connection. In April 2000 x- rays of the veteran's left elbow showed no abnormalities. At the April 2006 hearing the veteran testified that he has diagnoses of a left arm and left shoulder disability, but could not state what the diagnoses were. Although Dr. Bash testified as an expert medical witness at the hearing, he too did not provide any diagnoses in this regard. Similarly, in his subsequent April 2006 statement, formed after reviewing the claims file two times and physically examining the veteran, Dr. Bash again provided no diagnosis as to either the veteran's left arm or shoulder. In Dr. Ogden's April 2007 and October 2007 statements, no diagnosis of the veteran's left arm or shoulder was mentioned. The veteran has neither identified nor submitted any medical treatment records relating to his left arm or shoulder.

Despite this, nexus opinions have been received and there is also documentation of the in-service incurrence of both left arm and left shoulder injuries. The veteran's service medical records show that in March 1977 the veteran complained of pain in his left scapula, and in April 1977 he complained of pain in the left shoulder. Service medical records also show that in November 1977 the veteran suffered a contusion, hematoma, and pain in his left arm from an injury sustained while playing basketball. Further, the veteran attributes his current left arm and shoulder problems to the fall sustained in service and as stated above, the Board finds no reason to discredit this allegation.

As for nexus opinions relating to the veteran's left arm, in April 2006 Dr. Bash submitted an opinion attributing the veteran's left hand and left forearm difficulties to a neck disability. The veteran has not previously been service- connected for a neck disability and the decision at bar grants service connection for a disability of the lower back, not the neck. On careful review, the Board can point to no statement in Dr. Bash's report where a nexus is drawn between the veteran's left arm or forearm and service, however, Dr. Bash draws a definite link between the veteran's neck and service. Dr. Bash found, "[i]t is my opinion that this patient's current neuro/musculoskeletal problems in his L shoulder, neck, L knee and back (with spasms) are all due to his service time experiences." For this reason, the Board finds that the veteran's left arm and forearm claim is inextricably intertwined with the referred issue of entitlement to service connection for a neck disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1990) (issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless all are adjudicated). That is, resolution of the claims on appeal is dependent upon resolution of the issue of service connection for a neck disability.

With further regard to the veteran's left arm, an examination is needed to reconcile the remaining nexus opinions. In addition to Dr. Bash's written statement referenced above, in his February 2006 hearing testimony, Dr. Bash drew a direct link between the veteran's left arm and forearm problems and service. In contrast, the April 2007 opinion and October 2007 addendum from William S. Ogden, M.D. collectively state that any current problem with the veteran's left arm or forearm is not related to the injury in service because the service medical records lack documentation of any recurrent or problematic issues relating to his left arm subsequent to the November 1977 injury, and because there was no evidence of any disability of the left arm at the time of discharge.

As for the veteran's left shoulder, at the February 2006 hearing and in his April 2006 statement, Dr. Bash directly attributed the veteran's current left shoulder problems to service. In contrast, in April 2007 and October 2007 statements, Dr. Ogden appears to state there is no relationship between the April 1977 injury and the veteran's current problems because there were no other problems with the left shoulder subsequent to April 1977, and the veteran's separation examination was normal.

Accordingly, in light of the service medical records and nexus opinions, the veteran's current diagnoses of his left arm and left shoulder must be identified. A VA examination is also necessary to reconcile the nexus opinions of record, and to determine whether there is any link between the current conditions and service, or to any service-connected disability.

Accordingly, the case is REMANDED for the following action:

1. Provide the veteran with proper notice of the information or evidence needed to establish a disability rating and/or effective date for the claims on appeal pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006).

2. Adjudicate the veteran's informal claim for service connection for a neck disability.

3. Afford the veteran a VA examination to ascertain the diagnosis of, as well as the nature and etiology of the following conditions:
a. a left arm or forearm disability
b. a left shoulder disability.

Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner should identify all diagnosed disabilities of the left arm, forearm and shoulder. The examiner is then requested to review all pertinent records associated with the claims file and offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any left arm, forearm, or shoulder disability had its onset during service or is in any other way causally related to active service, or to any service- connected disorder.

If service connection is granted for a cervical spine disability, the examiner should state whether it is as likely as not that any left arm, forearm or shoulder disability is related to or due to, or aggravated by the service- connected cervical spine disability. If aggravation is found, the examiner should identify the baseline level of severity of any left arm, forearm and/or shoulder disability, pointing to medical evidence before the onset of aggravation or the earliest medical evidence created at any time between the onset of aggravation and the current level of severity. In addressing the aggravation question, the examiner should also identify any impairment which is due to the natural progression of the disease.

The examiner should consider the veteran's service medical records mentioned above, as well as the fall from the truck sustained in service.

All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner.

The veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. The consequences of failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2007).

4. After all of the above actions have been completed, a corrective notice and assistance letter has been issued, and the veteran has been given adequate time to respond, readjudicate his claims. If the claims remain denied, issue to the veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto.

The appellant 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 Supp. 2007).




K. OSBORNE

Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

Cell/Text 240-506-1556
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