Citation Nr: 1115768 Decision Date: 04/21/11 Archive Date: 05/04/11 DOCKET NO. 08-14 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for arthritis of the cervical spine as secondary to status post lumbar fusion with degenerative arthritis of the lumbar spine. 2. Entitlement to service connection for arthritis of the right foot as secondary to status post lumbar fusion with degenerative arthritis of the lumbar spine. 3. Entitlement to service connection for arthritis of the left foot as secondary to status post lumbar fusion with degenerative arthritis of the lumbar spine. 4. Entitlement to service connection for arthritis of the right hip as secondary to status post lumbar fusion with degenerative arthritis of the lumbar spine. 5. Entitlement to service connection for arthritis of the left hip as secondary to status post lumbar fusion with degenerative arthritis of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2009). The Veteran served on active duty from January 1952 to December 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2006 and September 2007 rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Nashville, Tennessee. With regard to the claims currently on appeal, the Veteran has limited his appeal to secondary service connection. It is his contention that he has cervical disc disease, arthritis of the feet, and arthritis of the hips, as secondary to service-connected status post lumbar fusion with degenerative arthritis of the lumbar spine. In recent years, service connection has also been established for peripheral neuropathy of the right and left lower extremities and for bilateral knee arthritis, both as secondary to the service-connected lumbar spine disorder. In March 2010, the Board remanded the claims as listed on the title page for additional evidentiary development, and they have now been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. There is no competent evidence linking the diagnosis of cervical disc disease to the service-connected lumbar spine disability. 2. There is no competent evidence linking the diagnosis of right foot arthritis to the service-connected lumbar spine disability. 3. There is no competent evidence linking the diagnosis of left foot arthritis to the service-connected lumbar spine disability. 4. There is no competent evidence linking the diagnosis of right hip arthritis to the service-connected lumbar spine disability. 5. There is no competent evidence linking the diagnosis of left hip arthritis to the service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. Cervical disc disease is not proximately due to, the result of, or aggravated by the service-connected status post lumbar fusion with degenerative arthritis of the lumbar spine disability or any other service-connected disorder. 38 U.S.C.A. §§ 1101, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.310(a) (2010). 2. Arthritis of the right foot is not proximately due to, the result of, or aggravated by the service-connected status post lumbar fusion with degenerative arthritis of the lumbar spine disability or any other service-connected disorder. 38 U.S.C.A. §§ 1101, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.310(a) (2010). 3. Arthritis of the left foot is not proximately due to, the result of, or aggravated by the service-connected status post lumbar fusion with degenerative arthritis of the lumbar spine disability or any other service-connected disorder. 38 U.S.C.A. §§ 1101, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.310(a) (2010). 4. Arthritis of the right hip is not proximately due to, the result of, or aggravated by the service-connected status post lumbar fusion with degenerative arthritis of the lumbar spine disability or any other service-connected disorder. 38 U.S.C.A. §§ 1101, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.310(a) (2010). 5. Arthritis of the left hip is not proximately due to, the result of, or aggravated by the service-connected status post lumbar fusion with degenerative arthritis of the lumbar spine disability or any other service-connected disorder. 38 U.S.C.A. §§ 1101, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.310(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a Claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, an April 2007 letter to the Veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claims. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements from the Veteran and his representative. The Board finds that the examination was adequate to allow proper adjudication of the issues on appeal. The examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered a well supported opinion based on consideration of the full history of the disability. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The United States Court of Appeals for Veterans Claims (Court) held that the 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, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the April 2007 letter mentioned above. Secondary Service Connection - In General Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (2010). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310 as to the issues on appeal, which is more favorable to the Claimant because it does not require the establishment of a baseline before an award of service connection may be made. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Background and Analysis As noted above, the Veteran contends that his current cervical disc disease, arthritis of the feet, and arthritis of the hips are directly related to his service-connected status post lumbar fusion with degenerative arthritis of the lumbar spine. Post service VA and private treatment records essentially reflect treatment for complaints other than associated with the cervical spine, feet, or hips. However, VA records dated in May 2006 show the Veteran had mechanical pain in the right hip and left hip trauma. Cervical disc disease was noted upon X-rays accomplished in December 2006 at a VA facility. And, X-rays of the ankles, also from December 2006, showed minimal calcaneal spurring. As noted by the Board in the March 2010 decision, VA examination was conducted in September 2009. The VA examiner essentially concluded that the Veteran developed osteoarthritis of the feet, knees, hips, cervical spine, and lumbar spine. His lumbar spine disability occurred subsequent to the inservice low back injury. It was the examiner's opinion that the inservice injury predisposed him to develop arthritis and degenerative joint disease in the particular location (lumbar spine) at an earlier age than he might have otherwise had such development. He then went on to develop arthritis in many joints in his body. In sum, the Board noted that the examiner found no direct connection between the Veteran's lumbar spine disabilities and his arthritis of the cervical spine, feet, or hips. However, as an opinion was not provided regarding aggravation, it was requested that an addendum be provided. Added to the record in May 2010 were private X-ray reports. These records reflect that the Veteran has moderate degenerative disease of the cervical spine; no significant abnormality of the pelvis; and degenerative changes in the lower lumbar spine. The VA addendum report dated in August 2010 shows that the examiner reviewed the claims file to include the May 2009 VA examination report. It was his opinion that it was less likely than not that this Veteran's service-connected lumbar fusion with degenerative arthritis of the lumbar spine aggravated his bilateral hip and/or foot arthritis. Due to the changes in the Veteran's dynamics of pelvis positioning with weight bearing activities, it was plausible that this could lead to abnormal wear patterns on the articular surface of the hip joint and within the foot, but he was unaware of any studies within the medical literature that definitively supported this conclusion. In regards to the Veteran's lumbar spine arthritis, the examiner opined that it was likely that this early progression of degenerative disease in the lumbar spine was secondary to the trauma he sustained to his low back where as the subsequent development of arthritis in other joints was more likely related to the systemic nature of osteoarthritis unrelated to that traumatic event. The examiner pointed out that the subjective evidence did not show that the Veteran had a history of trauma specific to the hips or feet. Similarly, in the examiner's opinion, the Veteran's cervical spine arthritis was less likely than not directly related to his service-connected status post lumbar fusion with degenerative arthritis of the lumbar spine. As with the hips and feet, while the Veteran certainly had multifocal osteoarthritic changes of his joints, the examiner did not feel that they were directly related to his lumbar spine disease which was "precocious in its development due to the reported trauma, but rather related to a systemic process separate from his spine." As the record contains no evidence or opinions to the contrary, the Board finds that cervical disc disease, and arthritis of the feet and hips, were neither caused nor aggravated by the Veteran's status post lumbar fusion with degenerative arthritis or any other service-connected disability. While acknowledging the Veteran's belief that these disabilities resulted from his service-connected low back disorder, it is well established that as a lay person, the Veteran is not considered capable of opining as to the nature or etiology of his disability. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Veteran is certainly competent to testify as to symptoms such as poor sleep habits or snoring which are non-medical in nature; however, he is not competent to render a medical diagnosis or etiology. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). No medical evidence in the record finds a relation between his lumbar spine fusion with arthritis and the Veteran's current cervical spine disease, or arthritis of the feet and hips. The only medical opinions in the file were provided by the VA examiners in May 2009 and August 2010. The examiners opined that it was less likely that the Veteran's cervical disc disease, and his arthritis of the feet and hips, were due to his lumbar spine condition. Moreover, there was no aggravation of these conditions due to the service-connected low back disorder. There is no contrary medical opinion of record. As such, the Board finds that a preponderance of the evidence is against the claims. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2009); Gilbert, supra. ORDER Entitlement to service connection for arthritis of the cervical spine as secondary to status post lumbar fusion with degenerative arthritis of the lumbar spine is denied. Entitlement to service connection for arthritis of the right foot as secondary to status post lumbar fusion with degenerative arthritis of the lumbar spine is denied. Entitlement to service connection for arthritis of the left foot as secondary to status post lumbar fusion with degenerative arthritis of the lumbar spine is denied. Entitlement to service connection for arthritis of the right hip as secondary to status post lumbar fusion with degenerative arthritis of the lumbar spine is denied. Entitlement to service connection for arthritis of the left hip as secondary to status post lumbar fusion with degenerative arthritis of the lumbar spine is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs