Veteranclaims’s Blog

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).
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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).
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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.
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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)
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