Citation Nr: 0811778 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 00-20 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for cervical degenerative disc disease. 2. Entitlement to service connection for lumbar degenerative disc disease. 3. Entitlement to service connection for bilateral shoulder disorders. 4. Entitlement to service connection for bilateral arm disorders. 5. Entitlement to service connection for headaches. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The veteran served on active duty from April 1952 to April 1955 and from October 1958 to December 1963. This appeal to the Board of Veterans' Appeals (Board) arose from a December 1999 decision of the Newark , New Jersey , Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied the claims listed above. During the appeal period, the veteran moved and his claims file was transferred to the Phoenix , Arizona , RO. The veteran appeared at a Board hearing in July 2003 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is associated with the claims file. The Board notes a February 2000 letter from a Veterans Service Representative Organization that informed the Newark RO the veteran had appointed it as his representative, and it also transmitted his Notice of Disagreement. At his July 2003 hearing the veteran advised the undersigned hearing that he represented himself. In an April 2004 decision, the Board denied the veteran's claims for service connection for a personality disorder and bilateral leg disorders. The Board remanded the claims noted on the cover sheet to the RO, via the Appeals Management Center (AMC), in Washington , DC , for additional development. The RO completed the additional development as directed, continued to deny the claims, and returned the case to the Board for further appellate review. FINDINGS OF FACT 1. The preponderance of the probative evidence indicates that a cervical disorder, including degenerative arthritis, is not related to an in-service disease or injury. 2. The preponderance of the probative evidence indicates that a lumbar disorder, including degenerative arthritis, is not related to an in-service disease or injury. 3. The preponderance of the probative evidence indicates that there is no currently diagnosed bilateral shoulder disorder. 4. The preponderance of the probative evidence indicates that there is no currently diagnosed bilateral arm disorder. 5. The preponderance of the probative evidence indicates that a chronic headache disorder is not related to an in- service disease or injury. CONCLUSIONS OF LAW 1. A cervical disorder, including degenerative arthritis, was not incurred in or aggravated by active service, nor may arthritis be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b) (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a) (2007). 2. A lumbar disorder, including degenerative arthritis, was not incurred in or aggravated by active service, nor may arthritis be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a). 3. A bilateral shoulder disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. A bilateral arm disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. A chronic headache disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The veteran's application for benefits and the initial unfavorable decision predate the enactment of the VCAA. The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, however, have been met for a pre-VCAA pending claim. There is no issue as to providing an appropriate application form or completeness of the application. In a number of letters, beginning in March 2001, VA notified the veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. Pursuant to a Board remand, a May 2004 RO letter reiterated the VCAA requirements, including the need to submit all pertinent evidence in his possession. A December 2006 RO letter informed the veteran of, and provided adequate notice of how disability ratings and effective dates are assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes the December 2006 letter did not also include the other components of VCAA notice. Nonetheless, the Board finds this omission is not prejudicial in light of the decision reached below. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Further, the claims were readjudicated following the March 2004 notice and December 2006 letters, in the November 2007 Supplemental Statement of the Case. VA has fulfilled its duty to assist the veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The Board sought any records extant related to his award of benefits administered by the Social Security Administration, but that agency advised the Board in May 2004 that no records associated with the veteran were available. While the veteran did not have receive full notice prior to the initial decision, after pertinent notice was provided, the evidence does not show that he was prejudiced, he was afforded a meaningful opportunity to participate in the adjudication of the claims, and provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. Governing Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Analysis The veteran asserts that he fell eight feet from a ladder during the latter part of his active service in 1959 and injured his neck and back, and that he was denied permission to seek treatment after the fall. He also asserts that after the fall that his chronic headaches started. Transcript, pp. 4-6, 13. Unfortunately, the preponderance of the probative evidence is against his assertion. A January 2002 VA examination report notes that the examiner, apparently taking the veteran's reported history of a fall from a ladder at face value, diagnosed cervico-genic headaches and history of degenerative joint disease of the cervical and lumbar spine. The examiner opined, however, that it was unlikely the veteran's injuries were secondary "to this small fall." He was afforded another examination in 2006. The October 2006 examination report notes the veteran told the examiner of his claimed fall, and that his first post- treatment service was in about 1963. He denied any intervening injury. Following service, he worked 25 years as an electrician. The examiner opined that, in light of the absence of any documentation in the service medical records or any records within the years immediately following separation from active service, it was less likely than not that the veteran's cervical or lumbar spine disorders were related to his active service. The September 2006 VA neurological examination report notes the veteran's reported history of the inception of his headaches after he fell from a ladder. The headaches would reportedly last from one to seven days and then abate for three to four days. That pattern, reported the veteran, lasted for 40 years. As of approximately eight years ago, the headaches dissipated almost to the point of only one to two a year. The veteran ascribed the change to his obtaining light duty work, which was a truck driver at the time of the examination. The examiner noted the entries in the service medical records in the 1960s which related the veteran's headaches to tension, and he also noted the psychiatric entry of a personality disorder. The veteran denied any history of head trauma or loss of consciousness. Physical examination revealed no abnormalities. The examiner noted the veteran's long-standing history of intermittent headaches, and opined that it was not reasonable to ascribe the veteran's headaches to his claimed injury in service. One would expect, observed the examiner, a more regular and predictability to them. He noted further that his findings on examination did not define an organic etiology for the headaches. The Board finds that the VA examiners' findings and opinions are fully supported by the probative evidence of record. There simply is no support in the record for the veteran's assertions. The Board acknowledges the veteran's written submissions wherein he asserts that, since he was discharged for the convenience of the government due to a personality disorder, that is proof that his current cervical spine, lumbar spine, and headache disorders also constituted reasons for his discharge. He has also repeatedly asked why was he allowed to reenlist for his last tour if his personality disorder was of such significance. The Board rejects the former assertion as unfounded and, as the veteran has previously been told, the latter is not for VA to inquire into. The veteran's initial period of service was in the U.S. Army, but the service medical records for this period are not available. In light of the fact the veteran asserts no association between his claimed disorders and his Army service, however, this fact has not, and does not, prejudice his pursuit of the benefits sought. Further, the September 1958 Report Of Examination For Enlistment notes no abnormalities other than flat feet and scar on the right wrist. The veteran also denied any history of prior injury on his September 1958 Report Of Medical History. He asserts that he fell from a ladder at some time between January and March 1959. Service medical records are silent for any entries during that period for complaints, findings, or treatment, for any injury secondary to a fall or for neck, lumbar, or headache complaints. Beginning in September 1959, however, the paper trail is constant. While there is no specific documentation to refute the veteran's assertion that he was refused treatment at the time of his fall, the Board finds that, in light of his constant presentation at sick call with complaints of headaches, he had more than ample opportunity to inform Air Force medical care providers that he had fallen from a ladder within the then not too distant past. Thus, the Board attaches no credibility to his claimed fall. Further, the Board also attaches no weight to his wife's lay statement, as it iterates only what she says he told her, rather than what she in fact observed. In light of the negative nexus opinions set forth above, brevity is in order. Service medical records note that, between September 1959 and October 1962, the veteran was seen on multiple occasions for complaints of chronic headaches, including occasions when he told providers the pain included his neck. His treatment included ophthalmology and neurology workups, all with negative results. A November 1959 entry notes an impression of tension headaches versus migraine variant. As of September 1960, however, the apparent real etiology of the veteran's headaches began to take shape. The September 1960 entry noted he was unsatisfied with his job. He had been prescribed Fiorinal, but it was of no help. A December 1961 entry noted he was told to find a hobby or other diversion when off duty. A January 1961 entry noted he was dissatisfied with his job, assignments, and condition, and that he had little or no insight into his situation. In February 1962, he complained that the pain about his neck continued. The examiner noted he was sullen, discouraged, and without insight into his problems, or a willingness to accept his situation. In March 1962, considerable anxiety and spasm around the posterior cervical muscles were noted. Skull and neck X-rays were read as negative, and psychic conflict not improved was noted. A June 1962 neurological workup was negative. At this juncture, the veteran also complained of back pain, but still there is nothing to indicate he actually sustained a fall at any prior time. An October 1962 lumbar spine X-ray showed a minimal wedge deformity at T-12-L1, but the examiner-in his request for an orthopedic consult, noted that he attached little significance to the X-ray. The veteran's complaint was described as back pain in the character of muscular ache. The orthopedist noted the veteran's complaints of almost constant headaches and low back pain. No specific activity, position, or work, seemed to change the claimed symptoms. Physical examination was negative. The orthopedist's impression was no orthopedic problems. Beginning in November 1962, the veteran was seen for neuropsychiatric interviews. An August 1963 neuropsychiatric consult at Benton Air Force Base, Pennsylvania found no evidence of underlying pathology. The consult noted the veteran's then five years of service, and that he was dissatisfied with the service due to poor pay, lack of adequate housing near his present assignment, and the failure of his supervisors to follow his suggestions. He also reported that sexual relations with his wife had been poor during the past few years, and he wanted to get out of the Air Force and pursue work in the electronics industry. He quit school after the 10th grade because of personality conflicts with his teachers. During the two-year hiatus between his Army service and entering the Air Force, he worked as an unskilled laborer. The examiner noted the veteran was a moderately anxious young man who expressed considerable hostility towards the Air Force. There was no evidence of a thought disorder or depression. A detailed neurological examination revealed no abnormalities. The diagnoses were tension headaches and passive aggressive personality, and the primary underlying etiology was intense dissatisfaction with the Air Force. The examiner suggested continued symptomatic management of the headaches with the use of analgesics. He expressed doubt that the veteran's headaches could be cured, unless his underlying tensions due to his dislike for the service were remedied by his separation. Another neuropsychiatric consult of August 1963 noted the veteran's prior assessment, and that there was no psychiatric pathology. The examiner noted that, while he had no input from the veteran's unit on his ability to function with his headaches, he opined psychiatric treatment would not be effective, as the veteran had already had it in the past without success. Further, his headaches were in large part due to his environment. The examiner noted that there were no grounds for a medical separation. If the veteran did not perform up to his rank and experience, he should be considered for administrative separation. The veteran was referred to Andrews Air Force Base, Maryland , for psychiatric evaluation in October 1963. The examiner noted his extensive history of headaches and his treatment, and noted they were of a tension type that derived from his personality pattern. They were not disqualifying and did not warrant action under the regulation for medical separations. The examiner noted the veteran was qualified for general military service under applicable directives. Administrative separation, noted the examiner, was a matter for the veteran's unit to decide. He noted the veteran claimed he was never given a full explanation of the significance and relationships of his headaches and the implications of an administrative discharge. The examiner noted the possibility that the veteran might return to duty with a somewhat different attitude. Therefore, the appellant's unit commander determined it was no longer in the unit's best interest to continue to accommodate the veteran and initiated action to separate him. The November 1963 Report Of Medical Examination For Separation noted the spine and neurologic areas were assessed as normal. The veteran's records of his employer immediately after separating from active service note an October 1964 incident where the veteran reported he strained his back while lifting an object. The company investigation concluded the weight of the items were less than 60 pounds, and that lifting them was routine work in the electric shop that required no exceptional exertion. The company concluded the veteran's back pain was due to a personal back condition, and it was not accepted as an injury. These company records note his continued complaint of headaches. A June 1966 entry notes a possible association with allergies. A June 1968 entry notes the veteran gave a history of a back injury around 1960. Tests were negative. Records of the Family Health Center include a May 1997 entry that notes the veteran's report that he fell off a ladder. There is also a notation that he was involved in a motor vehicle accident in Kan s as in March 1997, where he was struck in the rear by another vehicle, and that he was cited for failure to yield. This is the only place in the veteran's post-service medical records where an intervening event is recorded. Nonetheless, none of the veteran's private records note any opinion or comment that cervical and lumbar degenerative joint disease, or chronic headaches is linked to any event that may have occurred during his active service. Neither is there any competent evidence of degenerative joint disease being compensably disabling within one year of his service separation. The October 2006 examination report notes the veteran told the examiner that his claimed bilateral shoulder disorder meant that his neck pain radiated to the upper shoulder blades region, and that it started in 1958. The examiner noted that the veteran explained that there was no separate disorder of the shoulders, as it was related to his cervical spine complaints. The veteran also told the examiner that he had no idea what was meant by a bilateral arm disorder Thus, there is no diagnosed disorder of these joints to which service connection may attach. See Degmetich v. Brown, 104 F.3d 1328 (1997) (Interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). The veteran also noted at the hearing that he had been told by doctors that it was possible his current cervical and lumbar spine disorders were related to his claimed fall. He conceded, however, that he did not have a written opinion to that effect, and the undersigned offered to hold the record of hearing open to afford an opportunity to obtain one. Transcript, pp. 6-7. Thus, the preponderance of the evidence is against the claims on both a direct and presumptive bases. 38 C.F.R. § 3.303, 3.307, 3.309(a). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the veteran's claims, however, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for degenerative disc disease of the cervical spine is denied. Entitlement to service connection for degenerative disc disease of the lumbar spine is denied. Entitlement to service connection for bilateral shoulder disorders is denied. Entitlement to service connection for bilateral arm disorders is denied. Entitlement to service connection for headaches is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs