Citation Nr: 0810234 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 03-00 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for degenerative arthritis to include the thoracic and cervical segments of the spine. REPRESENTATION Veteran represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Debbie A. Riffe, Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from January 1968 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2002 of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In January 2004, the Board remanded the case to the RO for additional development. Subsequently, the RO granted service connection for two of the claims on appeal, namely, service connection for spondylolisthesis, L5-S1, and service connection for a pain disorder. 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). In June 2007, the Board promulgated a decision with regard to three other service connection issues on appeal, namely, service connection for a heart murmur, hiatal hernia with gastroesophageal reflux disease, and arthritis of the shoulders. Also in June 2007, the Board remanded the case to the RO for additional development on the issue of service connection for degenerative arthritis to include the thoracic and cervical segments of the spine. 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). As noted in the last remand, the veteran in statements, dated in October 2004 and February 2007, raised the claim of a total disability rating for compensation based on individual unemployability. That issue is again referred to the RO for appropriate action. FINDINGS OF FACT 1. Degenerative arthritis of the cervical spine was not affirmatively shown to have had onset during service; degenerative arthritis of the cervical spine was not manifested to a compensable degree within one year from the date of separation from service; degenerative arthritis of the cervical spine, first diagnosed after service beyond the one-year presumptive period, is unrelated to an injury, disease, or event, of service origin; and degenerative arthritis of the cervical spine is not causally related to, or shown to have worsened in severity as a result of, any service-connected disability. 2. There is no competent medical evidence to show that the veteran currently has degenerative arthritis of the thoracic spine, or any other joint except for the cervical spine and the service-connected lumbosacral spine. CONCLUSION OF LAW Degenerative arthritis including the thoracic and cervical segments of the spine is not due to disease or injury that was incurred in or aggravated by active service; degenerative arthritis including the thoracic and cervical segments of the spine as a chronic disease may not be presumed to have been incurred in active service; degenerative arthritis including the thoracic and cervical segments of the spine is not proximately due to or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007); Allen v. Brown, 7 Vet. App. 439 (1995). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. 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 claim, 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 the claimant's possession that pertains to the claim. 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, as required by 38 U.S.C.A. § 5103(a), 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 post-adjudication VCAA notice by letters, dated in January 2004, in March 2004, and in February 2007. The notice included the type of evidence needed to substantiate the claim of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The veteran was informed 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 the records on his behalf. He was asked to submit any evidence in his possession that pertained to the claim. The notice included the provisions for the effective date of the claim 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 adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content- complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statements of the case, dated in December 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 claim. The veteran was afforded a hearing at the RO before a local hearing officer in October 2002. The RO has obtained the service medical records, VA records, and private medical records identified by the veteran, such as those from Boswell Chiropractic Clinic, A.S., M.D. The veteran himself has submitted numerous other private medical records. He has not identified any additional pertinent records for the RO to obtain on his behalf. Further, VA has conducted necessary medical inquiry in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). The veteran was afforded VA examinations in March 2001, October 2004, and July 2007, and obtained a VA medical opinion. As there is no indication of the existence of additional evidence to substantiate the claims, no further assistance to the veteran is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where a veteran who served for ninety days develops arthritis to a degree of 10 percent or more within one year from separation from service, service connection may 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. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be warranted for disability proximately due to or the result of a service-connected disorder and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a). Effective October 10, 2006, the provision of 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995), for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. In any case, as 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. Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis The veteran contends that his degenerative arthritis is attributable to his period of service and to his service- connected scoliosis/spondylolisthesis. In various statements, he indicated that during service he was put through strenuous physical training exercises and was assigned to physically demanding duties in Vietnam, which have caused him much pain and discomfort over the years. He stated that his back grew worse during service, and that his neck condition developed as a result of the misalignment of his spine from scoliosis. He testified that he had arthritic pains in his neck, hands, back, feet, and ankles, which had persisted for the last 20 years. He stated that he noticed joint aches after "extreme exercises" in service. The veteran served on active duty from January 1968 to December 1969. Service medical records do not show any complaints, clinical findings, or diagnosis of arthritis to include the spine. After service, medical records show that in August 1998 the veteran's private physician diagnosed him with strain of the mid-back. He was treated by a chiropractor for pain in the spine, to include the neck, from 1993. VA X-rays of the cervical spine in January 2000 showed osteoporosis, disc disease, and osteophytes at various levels. In a February 2000 statement, the veteran's chiropractor diagnosed the veteran with congenital scoliosis with degenerative arthritic changes in the low and mid-spine, but this diagnosis was not accompanied by radiographic evidence of arthritis. At the time of a March 2001 VA examination, the pertinent diagnoses included degenerative disc disease of the cervical spine (C6-7), and mild right thoracic and left lumbar scoliosis. VA X-rays of the thoracic spine, which were taken in conjunction with the examination, showed only scoliosis involving the thoracic spine. VA X-rays in March 2004 showed hypertrophic spurring in the cervical spine. VA outpatient records in April 2004 indicate diagnoses of cervical spine disc disease, degenerative joint disease of the spine (presumably of the cervical spine, as an MRI report was reportedly reviewed), thoracic scoliosis, lumbar scoliosis, and chronic neck pain. VA outpatient records indicate that the veteran's problem list included osteoarthritis, but the joint(s) or particular segment of the spine was not identified. The findings at the time of an October 2004 VA examination were the same as those of the earlier VA examination. A VA outpatient record dated in October 2006 indicates an impression of spondylolisthesis of L5 on S1 with degenerative changes of the cervical spine also. The veteran underwent a VA examination in July 2007 to determine the presence or absence of degenerative arthritis in the thoracic and cervical spine segments and to ascertain the etiology thereof, if any. X-rays revealed degenerative arthrosis of the cervical spine and scoliosis of the thoracic spine. In his discussion, the examining physician specifically indicated that there was no radiographic evidence of degenerative arthritis of the thoracic spine, and opined that it was not likely that the degenerative arthritis in the cervical spine was secondary to, or aggravated by, the service-connected spondylolisthesis of L5-S1, based on knowledge of medical principles. As the record now stands, there is no satisfactory proof that the veteran has a current diagnosis of degenerative arthritis of the thoracic spine, or degenerative arthritis of any other joint except for the cervical spine and the service-connected lumbosacral spine. VA law and regulations require that for service connection to be established there must be a disability incurred or aggravated during service. Without evidence of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As for the complaints of pain in various joints not already service-connected, it is noted that pain cannot constitute a current disability. VA generally does not find service connection for symptoms alone, such as musculoskeletal pain, without an identified basis for those symptoms. See Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) (Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. West, 239 F.3d 1356 (Fed. Cir. 2001). As for the veteran's statements regarding an association between his service-connected lower spine disability and the development of thoracic spine degenerative arthritis, in the absence of medical evidence of current thoracic spine degenerative arthritis, there is no valid claim for secondary service connection because service connection cannot be granted if there is no present disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The Board now turns to the cervical spine degenerative arthritis, of which there is current definitive medical evidence. Based on the service medical records, degenerative arthritis of the cervical spine was not affirmatively shown to have had onset in service. Nor was there evidence that degenerative arthritis of the cervical spine manifested to a compensable degree within one year from the date of separation from service in December 1969. In fact, the cervical spine degenerative arthritis was not documented until many years later, which is well beyond the one-year presumptive period for cervical spine degenerative arthritis as a chronic disease under 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. And while degenerative arthritis of the cervical spine was first documented after service, beyond the one-year presumptive period for the manifestation of arthritis as a chronic disease, there is no competent medical evidence that links the current degenerative arthritis to service. 38 C.F.R. § 3.303(d). Further, there is no medical evidence that degenerative arthritis of the cervical spine is causally related to, or shown to have worsened in severity as a result of, any service-connected disability to include the service-connected lumbosacral spine disability. 38 C.F.R. § 3.310. Rather, the medical evidence of record opposes the claim as the VA examiner expressed the opinion in July 2007 that the cervical spine degenerative arthrosis was likely not caused by or aggravated by the veteran's service-connected spondylolisthesis. As the VA examiner discounted a medical nexus between the veteran's currently shown cervical spine degenerative arthritis and his service-connected disability, and there is no other medical opinion to the contrary, the Board concludes that there is no basis of entitlement to secondary service connection. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As for the veteran's statements and testimony, relating degenerative arthritis to service, although the veteran is competent to describe symptoms relative to the joints such as pain and stiffness, where as here, the questions involve a medical diagnosis and medical causation, competent medical evidence is required to substantiate the claim because the veteran as a lay person is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, (Fed. Cir. 2007). To the extent that lay evidence can be competent to establish a diagnosis of a medical condition, a layperson is competent to identify a medical condition where the condition is a simple one, such as a broken leg as opposed to a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, degenerative arthritis is not a condition under case law, where lay observation has been found to be competent. Therefore, the determination as to the diagnosis of the disability is medical in nature, that is, not capable of lay observation. Where as here, the medical diagnosis of degenerative arthritis to include of the thoracic and cervical segments of the spine is not capable of lay observation, the veteran's statements as a lay person are not competent evidence on the questions of a medical diagnosis or on medical causation. As the Board may consider only independent medical evidence to support its findings as to questions involving a medical diagnosis or medical causation, which are not capable of lay observation, and as there is no favorable competent medical evidence to support the claim of service connection for degenerative arthritis including the thoracic and cervical segments of the spine as articulated above, the preponderance of the evidence is against the claim, and the benefit-of-the- doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for degenerative arthritis to include the thoracic and cervical segments of the spine is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs