Citation Nr: 0814984 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 01-06 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a cervical spine disability with radiculopathy to the right arm. 2. Entitlement to service connection for a low back disability with right leg numbness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. McPhaull, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from May 1970 to March 1978 and from February 1991 to March 1991. He also had periods of active and inactive duty for training (ACDUTRA and INACDUTRA) with the Air Force Reserve. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2001 rating decision by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In December 2001, a Travel Board hearing was held before the undersigned, a transcript of that hearing is associated with the claims file. In September 2003 and September 2006 the case was remanded for additional development. In April 2008 written arguments, the veteran's representative raised an issue of entitlement to pension benefits. This matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. A cervical spine disability with radiculopathy to the right arm was not manifested during the veteran's active service; arthritis of the cervical spine was not manifested in the first postservice year; and his current cervical spine disability is not shown to be related to his service. 3. The veteran's back complaints/injuries in service resolved without residual disability; a chronic low back disability with right leg numbness was not manifested during his active service; arthritis of the lumbar spine was not manifested in the first postservice year; and a low back disability with right leg numbness is not currently shown. CONCLUSIONS OF LAW 1. Service connection for a cervical spine disability with radiculopathy to the right arm is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Service connection for a low back disability with right leg numbness is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Via letters in April 2004 and October 2006, the veteran was informed of the evidence and information necessary to substantiate his claims, the information required of him to enable VA to obtain evidence in support of his claims, the assistance that VA would provide to obtain evidence and information in support of his claims, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. The VCAA letters informed the veteran that he should submit any medical evidence pertinent to his claim. Although VCAA notice was not provided to the veteran prior to the initial adjudication of these matters, he has had ample opportunity to respond and supplement the record and the claims were readjudicated after all critical notice was given. See September 2007 supplemental statement of the case. Regarding VA's duty to assist, the veteran's service medical records and pertinent postservice records are associated with the claims file. He has not identified any further pertinent medical evidence that is outstanding. Notably, in written argument in April 2008 the veteran's representative observed that on June 2007 VA examination the veteran reported he is receiving Social Security disability and asserted that the case must be remanded to secure records associated with the award of such benefits. The Board is aware both that the SSA records are constructively of record, but not associated with the claims file, as well as that VA has a duty to secure such records. However, the duty to make a reasonable effort to obtain records, including those in the possession of a Federal agency, applies only to "relevant records." 38 U.S.C.A. § 5103A(b)(1); see Loving v. Nicholson, 19 Vet. App. 96, 102 (2005). Here, the veteran reported on June 2007 VA examination that he was awarded SSA disability benefits due to mental health issues (as he was unable to maintain his employment with the psychiatric medications he takes). As the veteran has indicated (by inference) that the SSA records do not are pertinent to the issues on appeal, remanding the case a third time again to obtain such recently identified records would serve no useful purpose but would merely delay the appellate process. Pursuant to the September 2006 Board remand, the RO arranged for a VA examination. VA has met its assistance obligations. The veteran is not prejudiced by the Board's proceeding with appellate review. II. Factual Background The veteran's SMRs reveal that in February 1978 he complained of occasional low back pain after flying and moving equipment for crews. Clinical evaluation of the spine and neck was normal. Records from ACDUTRA include a May 1984 record which notes that he was seen for complaints of muscle spasm in the right paraspinal area. He was treated with heat and warm soaks. A November 1986 record notes that he was seen for complaints of left upper shoulder and back pain. Resolving cervical and thoracic sprains were noted and he was to continue exercises. The examiner also noted spasms in the right upper back and he was given a cervical spine soft collar and medications. A September 1994 record notes that he was seen for complaints of low back pain. Range of motion exercises and Tylenol as needed were prescribed. He was cleared to fly. A July 1999 private record notes that the veteran was seen for a complaint of low back pain with right leg tingling. He reported that he had no past history of back surgery or injury. Physical examination was unremarkable. Low back strain was diagnosed. Back exercises and medication were prescribed. A September 1999 private record notes that the veteran was seen for complaints of back pain with radiation to the right leg. There was no weakness of his legs, and he denied bowel or bladder dysfunction. Lumbar strain was diagnosed. On September 2000 VA examination, the veteran reported that he injured himself 12 years prior while loading an airplane and tying down cords. He indicated that he pulled something and experienced pain going from his right neck into his right shoulder. He reported that he was treated with pain medications and physical therapy. He indicated that he continues to have the pain in his right arm. An EMG and nerve conduction study (several days later) showed evidence of C5-6 radiculopathy; however, an MRI of the cervical spine was normal, and the examiner noted that there was insufficient clinical or MRI evidence to document active radiculopathy. An April 2004 medical statement from B. W., MD notes that the veteran continues to complain of numbness and tingling to the right leg. On June 2007 VA examination, the veteran reported that he was unable to work because of mental health issues. Regarding his cervical spine, he stated that he has a constant dull ache with intermittent sharp pains. He denied radiation of pain, weakness, numbness, bladder, or bowel complications. He took Lortab for his pain. Regarding his low back, the veteran reported he had a constant aching pain. Physical examination revealed, that the veteran's posture was normal, and his gait was slightly broad-based. He did not use orthotics, prosthetics, or ambulatory devices. His back was asymmetric with apparent congenital scoliosis. Deep tendon reflexes were +2/4. There was no palpable spasm or tenderness. Straight-leg raising was negative. There were no objective findings of radiculopathy or polyneuropathy. Toe and heel walking was normal. Cervical and thoracolumbar spine ranges of motion were normal. Cervical X-rays revealed mild to moderate degenerative disc and joint disease; Lumbar X-rays were unremarkable. The diagnoses were cervical degenerative disc disease and degenerative joint disease of C6-7 without objective findings of radiculopathy at this time; and, Lumbago without objective findings of radiculopathy at this time. (Lumbago is defined as pain in the lumbar region. See Dorland's Illustrated Medical Dictionary (30th ed. 2003) at 1069). The examiner opined: "[The] veteran had back and neck myofascial complaints without any significant documented injuries during military service. Current condition less likely than not caused by or related to minimal muscular complaints during active duty service". III. Legal Criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury (disability). Hickson v. West, 13 Vet. App. 247, 248 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic disease, to include arthritis, may be service connected on a presumptive basis if manifested to a compensable degree within a specified postservice period (1 year for arthritis). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Cervical spine disability with right arm radiculopathy: It is not in dispute that the veteran now has a chronic cervical spine disability. Such has been documented in the record. What he must still show to establish service connection for the cervical spine disability is that it is related to his service. A cervical spine disability was not manifested in service, and arthritis of the cervical spine was not manifested in the first postservice year. Consequently, service connection for cervical spine disability on the basis that such disability became manifest in service, and persisted, or on a presumptive basis (for arthritis of the cervical spine as chronic disease under 38 U.S.C.A. § 1112) is not warranted. The veteran may still establish service connection for a cervical spine disability (with radiculopathy to the right arm, if any) if competent (medical) evidence relates such disability to his service. See 38 C.F.R. § 3.303. However, there is no such competent evidence in this case. The only competent (medical) evidence that specifically addresses this matter, the opinion of the June 2007 VA examiner is to the effect that the veteran's current cervical spine disability is unrelated to his service. Significantly, a lengthy time interval between service and the initial postservice manifestation of a disability for which service connection is sought (here more than 10 years) is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d. 1330, 1333 (Fed. Cir. 2000). Significantly also, examinations have failed to corroborate that the veteran has cervical radiculopathy to the right arm. On VA examinations, pertinent clinical evaluations and diagnostic studies (MRI, NCS/EMG) have been normal. Low back disability with right leg numbness: The record contains no competent (medical) evidence that the veteran now has (or at any time during the appeal period has had) a chronic low back disability with right leg neuropathy (numbness). There is no current medical diagnosis of such disability. While he was seen in service and after service for complaints of low back pain, pain, by itself, without a diagnosed or identifiable underlying malady or condition, is not a disability for which service connection may be granted. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).] Here, there is no objective evidence of underlying pathology to account for the veteran's low back pain complaints and any right leg numbness. In the absence of proof of a present disability, there is no valid claim [of service connection]. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The veteran's own assertions to the effect that he has a low back disability with right lower extremity numbness are not competent evidence. As a layperson, he is not competent to offer an opinion regarding medical diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-45 (1992). He has been advised that as a threshold matter, he must present some evidence that he actually has the disability for which service connection is sought. He has presented no such evidence. As there is no competent (medical diagnosis) of the low back disability the veteran seeks to have service connected and no competent evidence of a nexus between his current cervical spine disability and his service, the preponderance of the evidence is against these claims. Hence, they must be denied. ORDER Service connection for a cervical spine disability with radiculopathy to the right arm is denied. Service connection for a low back disability with right leg numbness is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs