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