Citation Nr: 0809900	
Decision Date: 03/25/08    Archive Date: 04/09/08

DOCKET NO.  04-33 667	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, 
Idaho


THE ISSUES

1. Entitlement to service connection for degenerative joint 
disease and disc disease of the cervical spine to include 
secondary service connection. 

2. Entitlement to service connection for nerve damage of the 
cervical spine to include secondary service connection.  


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Horrigan 



INTRODUCTION

The veteran, who is the appellant, served on active duty from 
April 1956 to May 1959.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of rating decisions in June 2003 and in January 
2004 of a Regional Office (RO) of the Department of Veterans 
Affairs (VA).

In January 2006, the veteran canceled his request for a 
hearing before the Board.

In September 2007, the Board remanded the claims for further 
evidentiary development.  As the requested development has 
been completed, no further action to ensure compliance with 
the remand directive is required.  Stegall v. West, 11 Vet. 
App. 268 (1998). 


FINDINGS OF FACT

1. Degenerative joint disease and disc disease of the 
cervical spine was not affirmatively shown to have been 
present during service; degenerative joint disease or 
arthritis of the cervical spine was not manifest to a 
compensable degree within one year of separation from 
service; the current degenerative joint disease and disc 
disease of the cervical spine, first diagnosed after service 
beyond the one-year period for degenerative joint disease or 
arthritis as a chronic disease, is unrelated to disease, 
injury, or event of service origin; and the current 
degenerative joint disease and disc disease of the cervical 
spine is not caused or made worse by the service-connected 
disabilities of the right and left upper extremities.  

2. Nerve damage of the cervical spine was not affirmatively 
shown to have been present during service; nerve damage of 
the cervical spine, first diagnosed after service is 
unrelated to disease, injury, or event of service origin; and 
the current nerve damage of cervical spine is not caused or 
made worse by the service connected disabilities of the right 
and left upper extremities. 


CONCLUSIONS OF LAW

1. Degenerative joint disease and disc disease of the 
cervical spine was not incurred in or aggravated by service; 
degenerative joint disease or arthritis of the cervical spine 
may not be presumed to have been incurred in service based on 
the one-year presumption for a chronic disease; and 
degenerative joint disease and disc disease of the cervical 
spine is not proximately due to or the result of service-
connected disabilities of the right and left upper 
extremities.  38 U.S.C.A. §§ 1131, 1137, 5107(b) (West 2002 & 
Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007).

2. Nerve damage of the cervical spine was not incurred in or 
aggravated by service; and nerve damage of the cervical spine 
is not proximately due to or the result of service-connected 
disabilities of the right and left upper extremities.  
38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2007); 38 
C.F.R. §§ 3.303, 3.310 (2007).


The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A 
(West 2002 & Supp. 2007), and implemented in part at 
38 C.F.R. § 3.159 (2007), amended VA's duties to notify and 
to assist a claimant in developing information and evidence 
necessary to substantiate the claims. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of 
the information and evidence not of record that is necessary 
to substantiate the claims, which information and evidence VA 
will obtain, and which information and evidence the claimant 
is expected to provide.  Under 38 C.F.R. § 3.159, VA must 
request that the claimant provide any evidence in his 
possession that pertains to the claims.

Also, the VCAA notice requirements apply to all five elements 
of a service connection claim.  The five elements are: (1) 
veteran status; (2) existence of a disability; (3) a 
connection between the veteran's service and the disability; 
(4) degree of disability; and (5) effective date of the 
disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The VCAA notice must be provided to a claimant before the 
initial unfavorable adjudication by the RO.  
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The RO provided pre-adjudication and post-adjudication VCAA 
notice by letters, dated in December 2002, in October 2003, 
and in March 2006.  The veteran was notified of the evidence 
needed to substantiate the claims of service connection, 
namely, evidence of current disability; evidence of an injury 
or disease in service or an event in service, causing injury 
or disease; and evidence of a relationship between the 
current disability and the injury, disease, or event in 
service.  The veteran also was notified of the evidence 
necessary to substantiate secondary service connection, that 
is evidence of a relationship between the claimed condition 
and the service-connected condition.  

The veteran was notified that VA would obtain service 
records, VA records, and records of other Federal agencies 
and that he could submit private medical records or authorize 
VA to obtain private medical records on his behalf.  The 
veteran was asked to submit any evidence that would include 
that in his possession.  The notice included the provisions 
for the effective date of the claims, that is, the date of 
receipt of the claims, and for the degree of disability 
assignable. 

As for content of the VCAA notice, the documents 
substantially complied with the specificity requirements of 
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying 
evidence to substantiate a claim and the relative duties of 
VA and the claimant to obtain evidence); of Charles v. 
Principi, 16 Vet. App. 370 (2002) (identifying the document 
that satisfies VCAA notice); of Pelegrini v. Principi, 
18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); and of 
Dingess v. Nicholson, 19 Vet. App. 473 (notice of the 
elements of the claim). 

To the extent that the VCAA notice came after the initial 
adjudications, the timing of the notice did not comply with 
the requirement that the notice must precede the 
adjudication.  The procedural defect was cured as after the 
RO provided substantial content-complying VCAA notice the 
claims were readjudicated as evidenced by the supplemental 
statements of the case, dated in November 2007.  Mayfield v. 
Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured 
by adequate VCAA notice and subsequent readjudication without 
resorting to prejudicial error analysis.)

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to 
assist the claimant in obtaining evidence necessary to 
substantiate the claims.  The RO has obtained service medical 
records, VA records, and afforded the veteran VA examinations 
and obtained VA medical opinions.  McLendon v. Nicholson, 20 
Vet. App. 79 (2006). 

As the veteran has not identified any additional evidence 
pertinent to the claims and as there are no additional 
records to obtain, the Board concludes that no further 
assistance to the veteran in developing the facts pertinent 
to the claims is required to comply with the duty to assist.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Factual Basis

The service medical records show that in October 1957 the 
veteran complained of neck pain and stiffness, and the 
impression was myositis.  On separation examination in 
February 1959, there was no complaint or history of a neck 
abnormality, and the neck, spine, and neurological 
evaluations were normal.  And in March 1959, before he was 
discharged from service, while on guard duty, the veteran 
slipped and fell, inspecting a fuel area at a missile site, 
and fractured his left elbow.  X-rays revealed a fracture of 
the left radial head. 

After service in a rating decision in December 1959, the RO 
granted service connection for residuals of a fracture of the 
left radius and residuals of a fracture of the right humerus, 
which was established by X-ray on VA examination in November 
1959, and assigned noncompensable ratings.  

VA records disclose that in August 1971 a loose fragment was 
removed from the right elbow, and the diagnosis was traumatic 
arthritis of the right and left elbows.  In a rating decision 
in January 1972, the RO assigned a separate, 10 percent 
rating for each elbow.  In a rating decision in April 1988, 
the RO increased the rating for the left elbow to 20 percent. 

In July 1989, the Social Security Administration found that 
the veteran was disabled due to arthritis of the elbows, 
effective from January 1988. 

In a rating decision in December 1991, the RO increased the 
rating for the right elbow to 20 percent.

VA records disclose that in January 2003 the veteran was 
evaluated for left arm numbness and weakness.  
Electrodiagnostic testing was consistent with ulnar 
neuropathy at the left elbow.  A MRI revealed degenerative 
joint and disc disease of the cervical spine. 

On VA examination in March 2003, the examiner reported that 
the veteran had chronic radiculopathy of the cervical spine.  
In April 2003, the veteran complained of pain in the upper 
extremities and neck pain.  

In a rating decision in June 2003, the RO increased the 
rating for the right elbow to 30 percent.

On VA neurological examination in September 2003, the 
examiner expressed the opinion that the veteran's neck 
complaints could not be attributed to the elbow fractures. 

In a rating decision in October 2003, the RO granted service 
connection for ulnar neuropathy of the left forearm, wrist, 
and hand as secondary to the service-connected residuals of 
the left elbow fracture.

On VA examination in November 2004, the veteran complained of 
neck pain, but he did not recall a neck injury during or 
after service.  The examiner referred to the entry in the 
service medical records in October 1957, documenting neck 
pain and myositis, which the examiner described as a 
transitory condition.  After a review of the record, the 
examiner reported that there was no history of treatment for 
neck trauma or injury or pain suggestive of degenerative disc 
disease or radiculopathy during service and after service 
there was no significant neck pain for years after service, 
which made it highly unlikely that there was a causal 
association between service and the current neck problems and 
that the neck problem was not caused by the elbow injuries 
during service. 

In a rating decision in July 2005, the RO granted service 
connection for ulnar neuropathy of the right forearm, wrist, 
and hand as secondary to the service-connected residuals of 
the right elbow fracture.

On VA examination in October 2007, the physician expressed 
the opinion that the veteran's degenerative disc disease of 
the cervical spine and associated neurological dysfunction 
was not caused or aggravated by the veteran's service-
connected ulnar neuropathies as anatomically it was not a 
viable possibility.  The physician stated that the veteran 
developed degenerative disc disease of the cervical spine as 
the result of aging and not the result of the service-
connected ulnar neuropathies.  

Principles of Service Connection 

Service connection may be established for a disability 
resulting from disease or injury incurred in or aggravated by 
service.  38 U.S.C.A. § 1131.



Service connection means that the facts, shown by evidence, 
establish that a particular injury or disease resulting in 
disability was incurred coincident with service, or if 
preexisting such service, was aggravated by service.  This 
may be accomplished by affirmatively showing inception or 
aggravation during service.  38 C.F.R. § 3.303(a).

For the showing of chronic disease in service there is 
required a combination of manifestations sufficient to 
identify the disease entity, and sufficient observation to 
establish chronicity at the time.  If chronicity in service 
is not established, a showing of continuity of symptoms after 
discharge is required to support the claim.  38 C.F.R. 
§ 3.303(b). 

Where a veteran served continuously for ninety (90) days or 
more and arthritis or degenerative joint disease becomes 
manifest to a degree of 10 percent within one year from date 
of termination of such service, such disease shall be 
presumed to have been incurred in service, even though there 
is no evidence of such disease during the period of service.  
38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309.  

Service connection may also be granted for a disease 
diagnosed after discharge, when all the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d).

Secondary service connection may be granted for a disability 
that is proximately due to or the result of a service-
connected disability.  38 C.F.R. § 3.310(a). Secondary 
service connection includes the concept of aggravation of a 
nonservice-connected disability by a service-connected 
disability.  Allen v. Brown, 7 Vet. App. 439 (1995).  The 
provisions of 38 C.F.R.§ 3.310(a) were recently amended to 
conform with Allen, but since VA has been complying with 
Allen since the decision was issued in 1995, the amendment is 
not a liberalizing change in the law and does not otherwise 
change the application of the 38 C.F.R. § 3.310.



Analysis 

On the basis of the service medical records, degenerative 
joint disease and disc disease of the cervical spine and 
nerve damage of the cervical spine were not affirmatively 
shown during service.  For this reason, the claims of service 
connection degenerative joint disease and disc disease of the 
cervical spine and nerve damage of the cervical spine under 
38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(a) are not 
established.

The service medical records do contain a single entry of neck 
pain attributed to myositis in 1957, but no neck abnormality 
was found on separation examination.  For the showing of a 
chronic disability in service there is required a combination 
of manifestations sufficient to identify the disability and 
sufficient observation to establish chronicity at the time, 
as distinguished from merely an isolated finding.  As the 
chronicity of neck pain was not adequately supported by the 
combination of manifestations sufficient to identify any neck 
disability or abnormality during service as no such 
disability was identified and as an isolated finding of pain 
during service is insufficient observation to establish 
chronic residuals during service, then continuity of 
symptomatology after service is required to support the 
claims.  38 C.F.R. § 3.303(b).  

After service, VA records show that in 2003 the veteran 
complained of neck pain.  
A MRI revealed degenerative joint disease and disc disease of 
the cervical spine. On VA examination in March 2003, the 
examiner reported that the veteran had chronic radiculopathy 
of the cervical spine.  

The absence of documented symptoms of neck pain from 1959 to 
2003, a period of over forty years, weighs against a finding 
of continuity of symptomatology.  Maxson v. West, 12 Vet. 
App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 
F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider 
the veteran's entire medical history, including a lengthy 
period of absence of complaints.).  



The Board finds the absence of medical evidence of continuity 
of symptomatology outweighs any statements of continuity, 
rendering the veteran's lay evidence less probative than the 
medical evidence on the question of continuity of 
symptomatology.  Buchanan v. Nicholson, 451 F.3d 1331, 1336 
(Fed. Cir. 2006).  For this reason, continuity of 
symptomatology of neck pain since service and the claimed 
disabilities has not been demonstrated to establish service 
connection under 38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(b).  

Also, degenerative joint disease or arthritis of the cervical 
spine established by MRI was first documented in 2003, more 
that forty years after service, and well beyond the one-year 
period for presumptive service connection for degenerative 
joint disease or arthritis as a chronic disease under 
38 U.S.C.A. §§ 1131 and 1137 and 38 C.F.R. §§ 3.307 and 
3.309.  

On whether direct service connection for the current 
degenerative joint disease and disc disease of the cervical 
spine and nerve damage of the cervical spine may be granted 
as the disabilities were first diagnosed after service, 
considering all the evidence, including that pertinent to 
service under 38 C.F.R. § 3.303(d), on VA examination in 
November 2004, after a review of the record, referring to the 
entry in the service medical records in October 1957, 
documenting neck pain and myositis, which the examiner 
described as a transitory condition, the examiner reported 
that there was no history of treatment for neck trauma or 
injury or pain suggestive of degenerative disc disease or 
radiculopathy during service and after service there was no 
significant neck pain for years after service, which made it 
highly unlikely that there was a causal association between 
service and the current neck problems.  This evidence is 
uncontroverted. 

To the extent that the veteran relates his current 
disabilities to service, where as here the determinative 
issue involves a question of medical causation, competent 
medical evidence is required to substantiate the claims 
because a layperson is not qualified through education, 
training, and expertise to offer an opinion on medical 
causation, which is not capable of lay observation.  
38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. 
Cir. 2007).  For this reason, the veteran's statements do not 
constitute competent evidence to support the claims.

As the Board may consider only independent medical evidence 
to support its findings as to a question involving medical 
causation, which is not capable of lay observation, and as 
there is no favorable competent medical evidence to support 
the claims, as articulated above, the Board finds that 
service connection for the current degenerative joint disease 
and disc disease of the cervical spine and nerve damage of 
the cervical spine as directly related to service under 
38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(d) is not 
established.

On the question of secondary service connection, on VA 
examination in November 2004, the examiner stated that the 
veteran's neck problem was not caused by the elbow injuries 
during service.  On VA examination in October 2007, the 
physician expressed the opinion that the veteran's 
degenerative disc disease of the cervical spine and 
associated neurological dysfunction was not caused or 
aggravated by the veteran's service-connected ulnar 
neuropathies as anatomically it was not a viable possibility.  
The physician stated that the veteran developed degenerative 
disc disease of the cervical spine as the result of aging and 
not the result of the service-connected ulnar neuropathies.  

To the extent that the veteran relates his current 
disabilities to his service-connected disabilities, again 
where as here the determinative issue involves a question of 
medical causation, competent medical evidence is required to 
substantiate the claims because a layperson is not qualified 
through education, training, and expertise to offer an 
opinion on medical causation, which is not capable of lay 
observation.  38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 
F.3d 1372 (Fed. Cir. 2007).  For this reason, the veteran's 
statements do not constitute competent evidence to support 
the claims.

As the Board may consider only independent medical evidence 
to support its findings as to a question involving medical 
causation, which is not capable of lay observation, and as 
there is no favorable competent medical evidence to support 
the claims, as articulated above, the Board finds that 
service connection for the current degenerative joint disease 
and disc disease of the cervical spine and nerve damage of 
the cervical spine as secondary to the service-connected 
disabilities of the right and left upper extremities under 
38 U.S.C.A. § 1131 and 38 C.F.R. § 3.310 is not established.

For the reasons articulate, the preponderance of the evidence 
is against the claims of service connection to include as 
secondary service connection, and the benefit-of-the-doubt 
standard of proof does not apply.  38 U.S.C.A. § 5107(b).


ORDER

Service connection for degenerative joint disease and 
degenerative disc disease of the cervical spine to include 
secondary service connection is denied.  

Service connection for nerve damage of the cervical spine to 
include secondary service connection is denied.  



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs