Citation Nr: 1007308 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-06 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bronchitis. 2. Entitlement to service connection for cervical spine disease. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The Veteran had active service from August 1969 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board previously remanded this matter in July 2009. The issue of entitlement to service connection for bronchitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Degenerative disease of the cervical spine did not manifest within one year of separation from service. 2. The competent medical evidence of record does not demonstrate that cervical spine disease is causally related to active service. CONCLUSION OF LAW Cervical spine disease was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2009). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. When VA receives a complete or substantially complete application, it will notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim. VA will inform the claimant which information and evidence, if any, the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2009). The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2009). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The RO provided a notice letter in November 2006. The letter notified the veteran of what information and evidence was required to substantiate his claim for service connection for a cervical spine disorder. The letter advised him what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The letter explained how disability ratings and effective dates are determined. The notice complied with the timing requirements outlined in Pelegrini, as it was provided prior to the rating decision on appeal. The RO made reasonable efforts to assist the Veteran in the development of the claim for service connection for cervical spine disk disease. The service treatment records and relevant post-service records identified by the Veteran were obtained and associated with the claims file. The Veteran has not identified any outstanding medical records or evidence that is pertinent to this claim. The Veteran has been afforded a VA examination, from which a medical opinion was obtained. The examination satisfied the directives of the Board's July 2009 remand. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the veteran in substantiating the claim for service connection for cervical spine disease. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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) (2009). Service connection may also be granted for any 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) (2009). Service connection may be presumed for certain diseases, including arthritis, if it is shown that the veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, such disease became manifest to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2009). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is seeking service connection for cervical spine disease. He contends that cervical spine disease is related to a motorcycle accident he had in service. The Board notes that the Veteran has a current diagnosis of cervical spine degenerative disc disease. Thus, the requirement of a current disability is satisfied. The Board must determine whether a cervical spine disorder was incurred in service. The service treatment records reflect that the Veteran had complaints of back pain during service; however, there were no specific complaints or findings regarding the cervical spine. A June 1976 periodic examination noted complaints of recurrent back pain but did not include any specific findings regarding the cervical spine. A February 1979 entry in the service treatment records noted that the Veteran reported back problems and pain between his shoulder blades. The record does not contain any evidence of treatment or diagnosis of cervical spine degenerative disk disease within one year of separation from service. Accordingly, service connection may not be presumed. See 38 C.F.R. §§ 3.307, 3.309. Post-service treatment for a cervical spine condition is shown from 2005 to the present. In September 2009, the Veteran was afforded a VA examination for the purpose of obtaining a medical opinion regarding the etiology of his current cervical spine disability. The VA examiner indicated that the claims file was reviewed. The examination report noted that the Veteran complained of neck soreness since 1974 or 1975 when he was involved in a motor vehicle accident in Germany. He reported that his head hit the top of the vehicle in that accident. He reported that he began to have neck pain a few days later and reported to a physician for an unrelated problem, at which time he received pain medication. The Veteran reported that he experienced neck soreness on and off in the intervening years since service. He reported constant aching and soreness in his neck since he turned 50. The examiner noted that the Veteran had been under the treatment of a pain specialist since 2003. The VA examiner diagnosed cervical spine disk disease. The examiner opined that the Veteran's cervical spine condition is "less likely than not" related to service. The examiner noted that there is no evidence of ongoing symptoms, diagnoses or treatment of a cervical condition. The examiner observed that post-service records indicate complaints and treatment for a cervical condition beginning as early as 2003. The examiner stated that there is no evidence of chronicity or continuity of symptoms established in the medical record between 1975, when the Veteran reported the onset of symptoms and 2003. The examiner stated, therefore, that chronicity of the condition is not established, and there is no definite nexus between the alleged injury in 1975 and the current condition. The Board has also considered the Veteran's own lay statements in support of his claim. The Veteran's statements indicate that his cervical spine disability had its onset during service. Lay testimony is competent, to establish the presence of observable symptomatology, such as pain. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In Jandreau v. Nicholson, 492 F.3d 1372 (2007), the Court held that lay evidence may be competent to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Additionally, the Court has held that competent lay evidence may establish the existence of a current disorder capable of lay observation, such as varicose veins, tinnitus, and flat feet. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). The record does not contain competent medical evidence linking the Veteran's currently diagnosed cervical spine disk disease to service. The Board finds that service connection for cervical spine disease is not warranted. There is no competent medical evidence of a nexus between the Veteran's current cervical spine disability and service. Accordingly, there is a preponderance of evidence against a finding that cervical spine disease was incurred in or aggravated by service. The Board has considered the doctrine of reasonable doubt. However, as the evidence is not in relative equipoise, the Veteran may not be afforded the benefit of the doubt. 38 U.S.C.A. § 5107. ORDER Service connection for cervical spine disease is denied. REMAND The Board's July 2009 remand requested that the Veteran undergo a VA examination for the claimed disability of bronchitis. The Board requested that the examiner diagnose any respiratory disability, including bronchitis and provide an etiology opinion as to whether bronchitis is related to service. The Veteran had a VA examination in September 2009. The examiner stated that that the Veteran does not have a chronic pulmonary condition. The examiner explained that the Veteran's pulmonary function tests do not indicate a current chronic respiratory condition. The examiner diagnosed recurrent bronchitis but did not provide an opinion regarding the etiology of that condition. The Court has held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders and that VA has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). In order to ensure compliance with the prior remand, it is necessary to obtain a medical opinion regarding the etiology of the Veteran's recurrent bronchitis. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for respiratory disabilities. The claims file should be forwarded to the examiner for review in conjunction with the examination, and the examination report should indicate that such a review was conducted. 2. The examiner should diagnose any current respiratory disabilities. The examiner should state whether any such disability, including bronchitis, is at least as likely as not (50 percent or greater likelihood) related to service, including the documented in-service respiratory complaints. 3. The examiner should provide a detailed rationale, with references to the record, for the opinion. If an opinion cannot be formed without resorting to mere speculation, the examiner should so state and provide a reason for such conclusion. 4. Following the requested development, the Veteran's claim should be readjudicated based upon all of the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and should have an applicable opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs