Friday, June 15, 2012

Single Judge Application, Cf. Kahana v. Shinseki, 24 Vet.App. 428, 432 (2011); Board Inappropiate Medical Finding that Medical Treatment Should be Recorded

Excerpt from decision below: "The examiner offered no medical analysis as to why the absence of treatment records negate the possibility that there was a causal in-service event. For instance, the examiner did not state that had the in-service jumps and resulting shocks to the spinal column created any condition that could have eventuated in the conditions evident in the 1997 and 2004 MRIs, such effects would be expected to manifest immediately or develop rapidly after service and demand medical attention. Cf. Kahana v. Shinseki, 24 Vet.App. 428, 432 (2011) (Board made inappropriate medical finding that had the claimed injury occurred in service, it would have required medical treatment and thus should have been recorded in SMRs). ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1204 PETER TORRENS, APPELLANT, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Army veteran Peter Torrens appeals through counsel from a March 11, 2011, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for a lumbosacral disability.1 For the following reasons, the Court will set aside the Board's March 2011 decision and remand the case for further proceedings consistent with this decision. The appellant presents three arguments for the Court's consideration. He first argues that the VA medical opinion on which the Board primarilyrelied was inadequate because it failed to provide a sufficient rationale for its principal conclusion and ignored favorable evidence of record bearing on the nexus opinion. The appellant further argues that the Board erred by failing to develop and consider a claim for disability due to degenerative disc disease at L5-S1 that was raised by the evidence of record. Finally, he argues that the Board's negative credibility determination as to the lay statements of his mother, sister, and former fellow servicemember are not supported by a sufficient statement of reasons or bases. The appellant served on active duty from June 27, 1972, to June 18, 1974, including service Specifically, the Board denied service connection for left S1 radiculopathy, lumbar myositis, grade I spondylolisthesis, L5-S1, with associated bilateral spondylosis, and degenerative joint disease of the lumbar spine. 1 in Germanyservicing radios and radar units on airplanes and helicopters. He alleges that he suffered back pain in service from jumping from airplane wings and helicopter bays to the tarmac below. He states that he never reported this back pain for fear of being reassigned from his avionics duty, which he enjoyed. The appellant sustained a postservice work-related injury to his back "in the early 1990s" while working on diesel engines on ships anchored in Port Richey, Puerto Rico. Record (R.) at 507. The record does not indicate the nature of the work-related injury. He eventually obtained Social Security disability benefits, originally "alleging disability since October 20, 1997." R. at 272. Medical reports associated with the disability claim included a magnetic resonance imaging (MRI) study that revealed grade I spondylolisthesis at L5-S1 and an electromyelogram and nerve velocity test "compatible with mild radiculopathyinvolving S1 on the left and L5-S1 on the right." R. at 299. I. ANALYSIS A finding of service connection or the denial thereof is a finding of fact that the Court reviews underthe "clearlyerroneous"standard of review. See Dyment v. West, 13 Vet.App. 141, 144 (1999). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The Board is also required to consider all evidence of record and discuss all "potentially applicable" provisions of law and regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a); Weaver v. Principi, 14 Vet.App. 301, 302 (2001) ( per curiam order). In rendering its decision, the Board must provide a statement of reasons or bases that is adequate to enable an appellant to understand the precise basis for its decision and to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 ( 1995); Gilbert, 1 Vet.App. at 56-57. To complywith these requirements, the Board must analyze the credibilityand probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 2 A claim for service connection must generally be supported by evidence demonstrating "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 ( Fed. Cir. 2004). In the decision here on appeal the Board stated: "The medical evidence of record clearly shows that the Veteran has a current diagnosis of lumbar spondylosis and neuroforaminal stenosis and bilateral radiculopathy, meeting one of the fundamental requirements of service connection." R. at 14. The Board noted, however, that service medical records (SMRs) do not reflect a back condition and the separation report notes no back condition. While the appellant stated that he felt pain after his jumps from airplanes and helicopters, pain does not suffice to establish an in- service injury without a diagnosis of an underlying condition. Sanchez-Benitez v. West, 13 Vet.App. 282 (1999). Therefore, the record does not support service connection under the Shedden requirements. Service connection may also be established, however, by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b) (2011). Continuity of symptomatology may establish service connection if a claimant can demonstrate that (1) a condition was " noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)). "Lay testimony is competent [] to establish the presence of observable symptomatology." Barr at 307. Medical evidence of "noting" is not required if the condition is one as to which a lay person's observation is competent. Id. at 308. "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology ." Savage, 10 Vet.App. at 496. In this case, there is not only the appellant's lay evidence of in-service pain, but a corroborating lay statement from a fellow serviceman. Although the statement does not appear in therecordof proceedings, the Board characterized it asfollows: "This laystatementsimplymentions that the Veteran informed him that he has 'jumped from an aircraft and hurt himself.'" R. at 17. The Court disagrees with the Board's assessment that because "this letter does not describe the injury or address a back disability, it has no probative value in determining the veteran's claim." Id. While 3 the statement may have little weight in assessing the etiology of the appellant's present spinal condition, it is a confirmation that the appellant related occurrences to his fellow serviceman similar to those he now states in his claim. Cf. FED. R. EVID. 801(d)(1(B) ( previous statement consistent with declarant's testimony not hearsay when offered to rebut an express or implied charge of recent fabrication). A. Lay Evidence of Continuity The record contains a written statement by the appellant that "over the years my back got worse and worse, [so] that I started to have x-rays, MRI, etc. done." R. at 389. The Board acknowledged that the appellant "is competent to report symptoms that the laywitness observed and is within the realm of his or her personal knowledge; that is, those which are perceived through the use of the senses." R. at 14. The Board found that these statements lack credibility, however, for two reasons. The Board cited a lack of complaints of back pain in the SMRs, despite treatment for other conditions, and also perceived inconsistencies with statements the appellant made in connection with his Social Security disabilityclaim. In essence, the Board points to statements that the onset of the appellant's disability was after a work-related injury in the early 1990s. The Board specifically noted that "[i]t was only after the Veteran's reported work-related injuries in the 1990's that the Veteran's medical records show any evidence of treatment for these issues." R. at 16. The Board certainly mayconsider inconsistent statements in making credibility evaluations. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility ); Caluza v. Brown, 7 Vet.App. 498, 511 (1995) ("The credibilityof a witness can be impeached bya showingof interest, bias, inconsistent statements, or, to a certain extent, bad character."). In this case, however, the Court's review of the record does not indicate that the appellant's statements in pursuit of his Social Security disability claim are inherently contradictory to his statements that the onset of his pain began in service. Nowhere in the Social Security documents or the associated medical reports does the appellant indicate that he had no pain or difficulties with his back before the work-related injury in the 1990s. There is nothing in the record negating the possibility that there may have been an in- service injury that was gradually worsening, but bearable, until a later work injury exacerbated the 4 condition to the point that it constituted a disability. See R. at 389, 560 (mother's statement that after returning from service "[h]e didn't want to see doctors until his wife convinced him [and they] discovered his trouble was from pain at L5-S1 level"), 582 (2003 VA general medical examination report noting that after service "[p]atient continuing with acute episode of low back pain under treatment due to degenerative disc disease of the lumbar spine from four years ago, exacerbated, and lumbar radiculitis"), 591-92 (2003 spinal examination report in which appellant "said he began to have gradual onset of low back pain while in military service . . . since late 1970s and during 1980s he began to have low back pain which required him to seek medical assistance"). Thus, theCourt rejectstheBoard's assessmentthatthestatementsreportedinconnectionwith the Social Security disability claim were contradictory to his account of in-service onset of lower back pain. The Board cannot find the appellant's statements not credible solelyon the basis of a lack of confirmatory medical evidence. Buchanan, 451 F.3d at 1336. The Court therefore holds that the Board clearly erred in finding the appellant's statements were not credible. The appellant also submitted lay statements from his mother and sister, both of which indicate that he began complaining of back pain upon return from service. See R. at 557, 559. The Board found these statements also lack credibilityfor at least two reasons. First, the Board reasoned that they "conflict with the evidence of record and with the Veteran's numerous statements relating the onset of his back pain to a work-related injury in the 1990's." R. at 16. The Court has already rejected any contradictory content in the appellant's statements; theytherefore do not undermine the credibility of the statements from his mother and sister. The Board further noted that "[w]hile the Veteran's mother and sister maynot have a direct interest in assisting the Veteran with obtaining VA benefits, theyare, at the veryleast, not disinterested parties." Id. Rigid application of that reasoning would render nearly all lay evidence not credible; the Court is not persuaded that the attenuated personal interest of two relatives who do not share income with the appellant is sufficient by itself to render the statements not credible. Cf. Cartright v. Derwinski, 2 Vet. App. 24, 25-26 (Board cannot ignore appellant's testimony simply because he is an interested party). The Board also noted that both the sister and mother noted the results of an MRI taken after the work-related injury. The Board did not specifically assert that this fact undermined the credibility of the statements and the Court does not regard it as particularly remarkable. 5 Thus, the Court views the Board's reasoning as insufficient to support its findings that all the lay evidence is not credible. This evidence tends to fulfill the second requirement for service connection by continuity of symptomatology. B. Medical Examination Report Situations such as that presented by the facts of this case render the nexus analysis more complex. When there is evidence of both an in-service incident and a later work-related injury, the Board's task is to decide to what extent each may have contributed to the appellant's present disability. To the extent that it is impossible to separate the effects of a service-connected disability from a non-service-connected disability, the law requires that all the symptoms be attributed to the service-connected disability. See Mittleider v. West, 11 Vet.App. 181, 182 ( 1998). In this case, the evidence of record indicates that there may have been some kind of compressive shock to the spinal column resulting from the appellant's jumps from airplanes and helicopters. There was also some kind of work-related injury approximately 20 years later, the character of which is not described in the record. The record indicates that, at least byOctober 1997, the appellant had spondylolisthesis at the L5-S1 level, degnerative disc disease, and severe joint space narrowing. See R. at 308. The appellant's present condition includes left S1 radiculopathy, lumbar myositis, grade I spondylolisthesis, L5-S1, with associated bilateral spondylosis, and degenerative joint disease of the lumbar spine. R. at 3. This evidenceraisesseveralquestionsinconnectionwith evaluationofthenexus requirement of service connection. The Board must assess the likelihood that such conditions might have resulted from in-service jumps creating abnormalities that worsened over the passage of 20 years. Alternatively, the Board should assess the likelihood that all these conditions could have resulted from the work injury in the mid-1990s. There is also the possibility that the in-service events could have generated a gradually worsening lumbar spine condition that was severely exacerbated by the work injury. Finally, there is the possibility that the in-service events could have predisposed the appellant to a further injury later in his worklife. The evaluation of all these possibilities requires medical evidence. See Colvin v. Derwinski, 1 Vet.App. 171 (1991). Rather than furnishing an opinion that would be useful to such an analysis, the VA examiner offered the following statement: "My opinion is that [the appellant's spinal 6 condition] is not related to anything that occurred in service because Ihave no documentation of any complaints or any problems with his back in service nor for some 25 years after separation from service." R. at 72-73. This passage is not a medical analysis but a mere recital of the content of the available records. Neither the Board nor the Court needed a medical examiner to comment on the state of the record. The examiner offered no medical analysis as to why the absence of treatment records negate the possibility that there was a causal in-service event. For instance, the examiner did not state that had the in-service jumps and resulting shocks to the spinal column created any condition that could have eventuated in the conditions evident in the 1997 and 2004 MRIs, such effects would be expected to manifest immediately or develop rapidly after service and demand medical attention. Cf. Kahana v. Shinseki, 24 Vet.App. 428, 432 (2011) (Board made inappropriate medical finding that had the claimed injury occurred in service, it would have required medical treatment and thus should have been recorded in SMRs). The examiner also chose not to assess the likelihood that the appellant's present spinal disabilities are the result of an old injury, an injury in the 1990s, some combination of the two, or merely the result of aging. Without a reasoned medical analysis, the Board had no basis to support its statement of reasons or bases as to the medical nexus issue. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) ("[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two."). For the foregoing reasons, the Court holds that the Board's statement of reasons or bases is inadequate to support its ultimateconclusionswith respect to the lumbar spine condition. Therefore, the Court will set aside those findings and remand the matter for further proceedings. The appellant further argues that the Board did not consider service connection for degenerative disc disease of the lumbar spine. The Secretary responds that the Board did consider the evidence pertaining to this condition as indicated by the Board's reference to degenerative joint disease. The Court need not resolve this dispute; the appellant may pursue any claim for service connection for degenerative disc disease on remand. 7 II. CONCLUSION On consideration of the foregoing, the Court SETS ASIDE the Board's March 11, 2011, decision, and REMANDS this case for further proceedings consistent with this decision and readjudication. On remand, the appellant will be free to submit additional evidence and argument as to his claim and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final Board decision following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to the appellant. Marsh v. West, 11 Vet.App. 468, 472 (1998). DATED: May 30, 2012 Copies to: Jeany C. Mark, Esq. VA General Counsel (027) 8