Citation Nr: 1007337 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 05-07 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a disability of the upper back. 2. Entitlement to service connection for a disorder causing tingling of the hands. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A. Muhlfeld, Associate Counsel INTRODUCTION The Veteran had active military service from September 1978 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified before the undersigned Veterans Law Judge at a hearing in December 2008. A transcript of that hearing is of record. At the hearing, previously appealed issues of service connection for memory loss and insomnia were withdrawn by the Veteran. 38 C.F.R. § 20.204 (2009). FINDINGS OF FACT 1. An upper back disability is not related to military service, arthritis of the cervical spine was not manifested during the first post-service year; nor has an upper back disability been caused or made worse by service-connected lumbar spine disability. 2. A disorder causing tingling of the hands is not attributable to military service; nor has it been caused or made worse by a service-connected disability. CONCLUSIONS OF LAW 1. The Veteran does not have an upper back disability that is the result of disease or injury incurred in or aggravated by active military service; arthritis of the cervical spine may not be presumed to have been incurred therein; an upper back disability is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2009); 38 C.F.R. § 3.310 (2006). 2. The Veteran does not have a disorder causing tingling of the hands that is the result of disease or injury incurred in or aggravated by active military service; tingling of the hands is not proximately due to or the result of service- connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2009); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The 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 attempt to obtain on behalf of the claimant, and (3) any evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 CFR 3.159(b)(1), removes the portion of the regulation which stated that VA would request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). The Board notes that the Veteran was apprised of VA's duties to both notify and assist in correspondence dated in February 2009 and March 2009. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claims, any timing errors have been cured by the RO's subsequent actions. Id.) Specifically regarding VA's duty to notify, the notifications to the Veteran apprised him of what the evidence must show to establish entitlement to service connection, including establishing service connection as secondary to a service-connected disability, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The Veteran was apprised of the criteria for assigning disability ratings and for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), service personnel records, private medical records, VA medical records, and provided examinations in furtherance of his claims. In terms of whether or not the Veteran should have been afforded a VA examination as to whether a disability manifested by tingling of his hands was related to service, the Board notes that VA is not required to provide a medical examination to a claimant as part of the duty to assist if the record does not already contain some indication that current disability is related to military event, injury, or disease. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Duenas v. Principi, 18 Vet. App. 512, 517 (2004); Wells v. Principi, 326 F.3d 1381 (2003) (Board under no obligation to obtain a medical opinion when there is no competent evidence that the Veteran's disability or symptoms were service related). In this case, as will be explained below, there is no evidence of record indicating that the Veteran's disorder causing tingling of his hands may be directly related to service, and in fact, the Veteran himself does not even contend that this is the case. As such, the Board finds that a VA examination with respect to whether the Veteran's hand tingling was directly related to service was not required, and no duty to assist was unmet. Lastly, VA examinations with respect to the upper back issue on appeal were obtained in March 2007 and July 2009. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions obtained in this case when taken together, are adequate, as the opinions consider both of the Veteran's theories of entitlement, and the July 2009 opinion was predicated on consideration of the STRs, and VA and private medical records in the Veteran's claims file, and considered all of the pertinent evidence of record, including the Veteran's lay statements regarding continuity of symptomatology since service. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). In summary, no duty to assist was unmet. Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, 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). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; 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). Certain chronic diseases, including arthritis (degenerative joint disease), may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2009). Regarding service connection on a secondary basis, the Board notes that a disability that is proximately due to or the result of a service-connected disease or injury is considered service connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a). Further, additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995). Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service- connected disability. In this regard, the Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen v. Brown, 7 Vet. App. 439 (1995), it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the 2006 change amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim of secondary service connection was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. A. Upper Back The Veteran contends that he injured his neck on a combat mission in January 1991 when he repelled out of a helicopter and mistakenly let go ten feet short of where he should have. He fell, landing awkwardly on his feet without bending his knees, and he claims he injured his cervical and lumbar spine. The Veteran states that he has experienced cervical spine pain on and off since the in-service injury, noting that he self-medicated and did not immediately see a physician for his upper back disability. (Nevertheless, the record shows that he did seek treatment and filed a compensation claim for his lumbar spine disability shortly after discharge). An alternative theory of entitlement asserted by the Veteran is that his current upper back disability is the result of his service-connected lumbar spine disability. Here, the question at hand is whether the Veteran's current upper back disability, specifically, his currently diagnosed degenerative disc disease of the cervical spine, is traceable to service, in particular to the January 1991 incident where the Veteran repelled out of a helicopter and landed on the ground without bending his knees, injuring himself. Although the Veteran's primary contention appears to be that he injured his cervical spine during service, because he also asserted during the pendency of this appeal that his upper back disability is related to his service-connected lumbar spine disability, the Board will also evaluate the claim on a secondary basis. The STRs are devoid of complaints or treatment related to the upper back or neck, and do not show evidence of the January 1991 in-service jumping injury, for which the Veteran stated he sought treatment. The STRs do contain a December 1991 Report of Medical History where the Veteran stated that he experienced recurrent back pain, but did not state whether he was referring to lumbar spine pain and/or upper back pain. The STRs contain a February 1991 medical evaluation board (MEB) revealing that the Veteran was discharged due to plantar fasciitis. In a March 2007 VA spine examination, R.W., M.D. diagnosed the Veteran with degenerative disc disease of the cervical spine, and degenerative disc disease of the lumbar spine. After considering the Veteran's statement that he stepped off a precipice without seeing it after repelling from a helicopter during service, and began experiencing neck pain in early 2004, Dr. W. opined that both the Veteran's degenerative disc disease (DDD) of the cervical and lumbar spine were most likely related to an underlying intrinsic predisposition to disc disease, though neither one likely caused the other. Dr. W. noted that a medical predisposition to disc pathology was well described in the literature. In a November 2008 letter, S.P., M.D. noted that the Veteran underwent a cervical discectomy and fusion at C4-C5 level in November 2004, and noted that the Veteran also had extensive DDD at other levels of the spine. Dr. P. noted that the Veteran was in the military from 1978 to 1992, and while in the military he repelled from helicopters, and had a number of injuries during his military career. The Veteran was afforded another VA spine examination in July 2009, at which point the examiner diagnosed the Veteran with DDD of the cervical spine, and opined that the Veteran's DDD of the cervical spine was less likely as not caused by or a result of military service. In forming his opinion, the examiner took into consideration the Veteran's statement that he had a neck injury in the military resulting from a fall during a repelling incident and that he had experienced neck pain ever since the 1991 injury. However, the examiner explained that there was no evidence in the Veteran's military history of any injury to or complaints of neck or cervical spine problems, and noted that the record did not document complaints of neck pain until 2004, twelve years after the Veteran was discharged from the military. The examiner opined that the Veteran's current cervical spine disability was most likely due to the effects of aging, his physically demanding employment, a medical predisposition to disc pathology, which is well described in literature, or a combination of these causes. An x-ray taken at the time of the examination revealed osteoarthritic change in the middle and lower cervical spine. The examiner noted that she had reviewed the STRs, private medical records, and VA records before forming her opinion. In this case, after considering all the evidence of record, the Board finds that an upper back disability, including DDD or arthritis of the cervical spine, is not related to his military service on either a direct or secondary basis. Regarding direct service connection, even after the June 2009 VA examiner considered the Veteran's in-service injury where he fell or awkwardly landed while repelling from a helicopter in 1991, and took into account the Veteran's statements regarding experiencing neck symptoms from service until the present, the 2009 examiner still concluded that the Veteran's currently diagnosed degenerative disc disease of the cervical spine was not caused by or a result of military service. Rather, the 2009 examiner reasoned that the Veteran's current DDD of the cervical spine was most likely due to factors unrelated to military service, including the effects of aging, physically demanding employment, and a medical predisposition to disc pathology; or a combination of these. This opinion is uncontradicted in the record, and was made after taking into account the Veteran's lay statements regarding an in-service injury and continuity of symptomatology since service, as well as the medical evidence that chronicles his back pain. It is further supported by the March 2007 examiner who also believed the Veteran's DDD of the cervical spine to be the result of an underlying medical predisposition to disc disease which was well described in the literature. Finally, although the Veteran has described an in-service injury and continuing symptoms since that time, the fact remains that there are no entries in the STRs referencing neck pain, and the Veteran's December 1991 Medical Evaluation Board (MEB) examination revealed that the spine was within normal limits. Further, the first documented post-service indication of a cervical spine disability was in 2004, years after discharge, when the Veteran underwent a cervical discectomy. See November 2008 letter by S.P., M.D. The VA examiner knew of the in-service injury as reported by the Veteran, and of the history of problems since service, but nevertheless concluded that current disability was not due to the in-service injury. The Board gives greater weight to the examiner's conclusion because of his medical expertise. The reasonable inference is that the Veteran's history of in- service injury notwithstanding, his current disability is not traceable to military service. In summary, the salient point to be made is that no examiner has attributed a currently diagnosed disability to military service. Rather, it has been attributed to an underlying medical predisposition to the disease, as well as to the effects of aging, and demanding physical employment after service. See March 2007 and June 2009 VA examinations. Furthermore, weighing against the Veteran's claim is the fact that the Veteran's MEB examination given at discharge noted that the spine was within normal limits, despite his 1991 repelling fall. Therefore, based on the above analysis, and after weighing all the evidence of record, the Board finds that service connection on a direct basis for an upper back disability is not warranted. As to the Veteran's alternative theory of entitlement-his contention that his DDD of the cervical spine is related to his service-connected lumbar back disability, the March 2007 examiner specifically opined that neither disability was likely caused by the other. No examiner has attributed the Veteran's DDD of his cervical spine to the DDD of his lumbar spine, either on a causation or aggravation basis. As for the one-year presumption, there has been no showing that arthritis of the cervical spine was manifest until several years after military service. Consequently, it may not be presumed to have been incurred in or aggravated by service. 38 C.F.R. §§ 3.307, 3.309. B. Disorder causing tingling in hands The Veteran contends that the tingling in his hands is the result of his degenerative disc disease of the cervical spine. He has not asserted that a disorder causing tingling in the hands is directly related to military service. A July 2009 electromyogram report found mild left carpal tunnel syndrome, chronic reinnervation in a distribution suggesting an old (healed) or chronic left C5-6 radiculopathy, and noted that there was no evidence of right C5-T1 radiculopathy. Initially, the Board notes that as a matter of law, service connection for a disorder manifested by tingling of the hands cannot be established secondary to degenerative disc disease of the cervical spine because DDD of the cervical spine is not a service-connected disability. Therefore, although no opinion has been obtained as to the relationship between a disorder causing tingling of the hands (in this case, presumably carpal tunnel syndrome or radiculopathy, the only neurological diagnoses provided), and DDD of the cervical spine, obtaining an opinion is not necessary as the Veteran is not currently service connected for DDD of the cervical spine, and as such, service connection secondary to a non- service connected disability cannot be established. Regarding the question of direct service connection, the STRs contain no evidence of neurological complaints or symptoms, and the December 1991 MEB evaluation revealed that the neurological system was within normal limits at discharge. Lastly, the Veteran does not contend that he has experienced a disorder causing tingling of his hands during or continuously since service, and no examiner has attributed the Veteran's disability to service. The Veteran has been diagnosed with mild left carpal tunnel syndrome and healed or chronic left C5-6 radiculopathy, neither of which have been found to be related to service on either a direct or secondary basis. As such, service connection for a disorder causing tingling of the hands is not warranted. In deciding these issues, the Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against these claims. The Veteran's current upper back disability and any disability causing tingling in the hands are not traceable to disease or injury incurred in or aggravated during active military service. ORDER Service connection for a disability of the upper back is denied. Service connection for a disorder causing tingling of the hands is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs