Citation Nr: 1042004 Decision Date: 11/08/10 Archive Date: 11/18/10 DOCKET NO. 98-20 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a neck disability, claimed as secondary to a service connected left knee disability. REPRESENTATION Appellant represented by: United Spinal Association, Inc. ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from December 1971 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In March 2009, the Board remanded this case to the RO via the Appeals Management Center (AMC) so the Veteran could undergo a VA examination. FINDING OF FACT The Veteran's neck disability was proximately caused or aggravated by his service connected left knee disability. CONCLUSION OF LAW The Veteran's neck disability was caused or aggravated by a service connected left knee disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303 (2010), 3.310 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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) (2010). 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) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2010); 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; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1) (2010). The VCAA notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO issued VCAA notice letters in January and March 2006. The Board need not discuss the sufficiency of the letters or VA's development in light of the fact that the Board is granting service connection for a neck disability. Any potential error on the part of VA in complying with the provisions of the VCAA with respect to this claim has essentially been rendered moot by the Board's grant of the benefit sought on appeal. The Board is also satisfied that there was substantial compliance with its March 2009 remand directives because the Veteran received a VA examination in May 2009. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his service connection claim for a neck disability. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection for a Neck Disability Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease that was incurred or aggravated during active military service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303(a) (2010). In this case, the Veteran claims that his neck disability was caused by his service connected left knee disability. Specifically, he asserts that in January 2002, the knee brace he wore to relieve his service connected left knee disability failed, which resulted in a fall and subsequent neck injury. Secondary service connection may be granted for disability that is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a) (2010). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the course of this appeal, the regulation pertinent to secondary service connection claims was amended. Specifically, effective October 10, 2006, a new paragraph concerning aggravation was added to 38 C.F.R. § 3.310, which states in part that, "VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the non-service- connected disease or injury is established by medical evidence created before the onset of aggravation." 38 C.F.R. § 3.310(b) (effective October 10, 2006). The intended effect of this amendment is to conform VA regulations to the Allen decision, supra. 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). Here, the Veteran filed his claim in November 2005. The new regulation is restrictive and the Board shall not give impermissibly retroactive effect to the new regulation in this case. Instead, the Board will apply the old version of the regulation, which favors the Veteran. See 38 C.F.R. § 3.310 (2006). The first requirement for any service connection claim is competent evidence of existence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran has a diagnosis of cervical spine disc disease requiring fusion surgery, with radiculopathy affecting the upper extremities bilaterally, and therefore has a disability for VA purposes. The Veteran is currently service-connected for a left knee disability, which is the condition he claims has caused his neck disability. There is both positive and negative evidence pertinent to this claim. The positive evidence generally found that the Veteran's fall caused his neck disability. The negative evidence found either that the neck injury resolved, or that it was not caused by the fall. The most probative negative evidence was an October 2002 addendum to an initially favorable VA examination conducted by a physician's assistant, but signed by a physician. That physician, Dr. S. W., amended the examination report and opined that a MRI showed significant degenerative disk disease (DDD), which was a long term chronic process. Dr. S. W. stated that this condition did not develop over a course of several months, and that the DDD was "not as least as likely as not" related to his fall. Dr. S. W. stated that the Veteran's cervical strain was caused by the fall, but that it was transient and "resolve[d] without sequelae." In order to resolve the conflicting positive and negative evidence, the Board remanded this case so the Veteran could undergo an examination where the physician would specifically address Dr. S. W.'s conclusion. In May 2009, the Veteran underwent a VA examination wherein the examiner concluded that it is at least as likely as not that the Veteran's neck disability was "caused or aggravated" by his left knee disability. The examiner noted that the Veteran fell, which began his cervical spine pain. His fall provided the mechanism for disc displacement, which led to progressive degenerative disc disease. The examiner considered Dr. S. W.'s October 2002 statement, and found that the Veteran's fall aggravated any preexisting condition "to the point where he was having chronic and severe pain, which he did not have prior to the fall." Although the examiner did not specifically state that the neck disability was caused or aggravated by the Veteran's service-connected left knee disability, this issue is moot. The Veteran has competently stated that he fell because his left knee gave out, and prior medical evidence supports that contention. The Board finds the May 2009 examiner's opinion and rationale to be reasonable and supported by the record. For this reason, it is entitled to great probative weight. In short, all three elements of the Veteran's claim have been met. He has a diagnosis of a neck disability. He has a service- connected left knee disability. Finally, there is competent, probative medical evidence that his neck disability was caused or aggravated by the left knee disability. In this case, the evidence, as a whole, is supportive of the Veteran's claim, and as a result, he must prevail. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is granted. ORDER Service connection for a neck disability is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ Bethany L. Buck Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs