Citation Nr: 0814476 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-10 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a cervical spine disorder, to include as secondary to the service-connected residuals of herniated intervertebral disc of the lumbar spine. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The veteran served on active duty from February 1952 to February 1956. This matter came to the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In September 2007, the veteran testified at a travel board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with his claims folder. Subsequently, the veteran's appeal has been advanced on the Board's docket by reason of his advanced age. See 38 U.S.C.A. § 7107(a)(2)(C) (West 2002); 68 Fed. Reg. 53,682- 53,684 (Sept. 12, 2003) (to be codified at 38 C.F.R. § 20.900(c)). In November 2007 the Board remanded the case for further development. The requested development has been completed and the case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. Any currently diagnosed cervical spine disorder did not have its onset in service and has not been etiologically linked to the veteran's service, any incident therein or to his service-connected disabilities. CONCLUSION OF LAW A cervical spine disorder was not incurred in active military service or as a result of service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties To Notify And Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for Department of Veterans Affairs (VA) benefits. In reviewing the veteran's claim of entitlement to service connection for a cervical spine disorder, the Board observes that the RO issued VCAA notices to the veteran in July 2004, March 2006, April 2006, and December 2007 which informed him of the evidence generally needed to support claims of entitlement to service connection; what actions he needed to undertake; the need to submit any evidence in his possession that pertained to the claim; and how the VA would assist him in developing his claim. The March 2006, April 2006 and December 2007 letters informed him of the evidence needed for the assignment of evaluations and effective dates for initial awards of service connection. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The July 2004 VCAA notice was issued prior to the November 2004 rating decision from which the instant appeal arises. Thus, the Board concludes that the RO provided appropriate notice of the information or evidence needed in order to substantiate the claim prior to the initial decision. In view of this, the Board finds that VA's duty to notify has been fully satisfied with respect to this claim. The VA has secured or attempted to secure all relevant documentation to the extent possible. VA medical examination reports and service medical records are of record, as well as private medical records and VA treatment records and were reviewed by both the RO and the Board in connection with the veteran's claim. The veteran was afforded a personal hearing at the RO in September 2007 and a transcript of his testimony at that hearing is of record. There remains no issue as to the substantial completeness of the veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007). Any duty imposed on the VA, including the duty to assist and to provide notification, has been met. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16, 2007). Analysis The veteran contends that he developed a cervical spine disorder secondary to his service-connected residuals of herniated intervertebral disc at L5-S1. Alternatively, he appears to contend that his cervical spine disorder was a result of an in-service injury. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Although the veteran claims to have developed a cervical spine disorder either as a result of an in-service injury or secondary to his service-connected residuals of herniated intervertebral disc, the Board finds that the preponderance of the evidence is against his claim. While the evidence reveals that he has a current cervical spine disorder, diagnosed as herniated disc at levels C5-C6 with degenerative disc disease (DDD), the preponderance of the competent evidence of record does not etiologically link the veteran's current cervical spine disorder to his service or to his service-connected residuals of herniated intervertebral disc of the lumbar spine. In this regard, the Board acknowledges the September 2007 letter from a physician with a medical paralegal service, indicating the physician had reviewed the veteran's medical history and records regarding his cervical spine disorder and the physician's opinion that it is as likely as not that his cervical spine disorder originated during his military service. However, the Board finds the September 2004 and December 2007 VA examiners' opinions that the veteran's cervical spine disorder did not originate in service more probative than the private physician's, as they are based on a review of his claims file in conjunction with physical examinations and testing, and the examiners provided rationale for their opinions. In contrast, it is clear that the opinion in the September 2007 letter from the physician with the medical paralegal services was based primarily upon the veteran's reported history regarding his cervical spine disorder, and although the physician did indicate that the veteran's medical records were reviewed, it is clear that he did not have access to all the veteran's service medical records in formulating his opinion. In this regard, it is noted that the physician supports his opinion that the veteran's cervical spine disorder originated in service based heavily on the veteran's history of his injury and a 1955 service medical record showing hospitalization for non- localized left sided pain. However, contemporary service medical records associated with the claims file indicate that the veteran specifically experienced left hip and thigh pain and not a "non-localized" left sided pain. Moreover, his service medical records show no relevant complaints, findings, treatment or diagnoses for a cervical spine disorder. The Board finds the service medical records to be more contemporary to the time the veteran alleged he sustained a cervical spine injury that caused his current cervical spine disorder and are of more probative value than his current recollections, given many years later, or than the private physician's opinion based on the veteran's stated history. Although the medical opinion supporting the veteran's claim assumed his account of an in-service cervical spine injury to be true, the Board finds that this opinion was not based on the veteran's actual military history. A medical opinion, based on an inaccurate factual premise, has very limited, if any, probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-461 (1993). While an examiner can render a current diagnosis based upon his examination of the veteran, his opinion regarding the etiology of the underlying condition, without a thorough review of the record, can be no better than the facts alleged by the veteran. Swann v. Brown, 5 Vet. App. 229, 233 (1993). Likewise, although the veteran alleges his current cervical spine disorder is secondary to his service-connected residuals of herniated intervertebral disc of the lumbar spine, the Board again finds that the preponderance of the evidence is against his claim. As noted above, while the evidence reveals that he has a current cervical spine disorder, the preponderance of the competent evidence of record does not etiologically link the veteran's current cervical spine disorder to his service-connected lumbar spine disability. In fact, the examiners who conducted the September 2004 and December 2007 VA orthopedic examinations, after reviewing the veteran's claims, opined that the veteran's cervical spine disorder was unlikely the direct or proximate result of his service-connected residuals of herniated intervertebral disc of the lumbar spine. The December 2007 VA examiner further opined that it was not likely that the veteran's cervical disorder was aggravated by his service-connected lumbar spine disability. The veteran has not submitted any medical opinion etiologically linking his cervical spine disorder to his service-connected disability. Although the veteran believes his currently diagnosed cervical spine disorder is secondary to his service-connected lumbar spine disability, he is not competent to provide evidence that requires medical knowledge. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Accordingly, for the reasons noted above, the Board concludes that the preponderance of the evidence is against the claim in this case, and service connection for a cervical spine disorder must be denied. ORDER Service connection for a cervical spine disorder is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs