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).
