Citation Nr: 1107416 Decision Date: 02/24/11 Archive Date: 03/09/11 DOCKET NO. 08-37 042A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for cervical disc displacement/spondylosis, to include as secondary to service- connected low back disability. 2. Entitlement to service connection for bilateral upper extremity radiculopathy secondary to cervical disc displacement/spondylosis. 3. Entitlement to service connection for bilateral lower extremity radiculopathy secondary to service-connected low back disability. 4. Entitlement to a rating in excess of 20 percent for service- connected herniated nucleus pulposus (HNP), L4-L5 and L5-S1, with degenerative changes and muscular low back strain. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran has verified active service from August 1962 to August 1966, September 1975 to December 1977, May to September 1988, April to July 1995, and October 1996 to May 1997. The Veteran injured his low back during active duty in April 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a March 2008 rating decision, the RO denied a rating in excess of 20 percent for the Veteran's service-connected low back disability. In an October 2009 rating decision, the RO denied service connection for cervical spine disability, for bilateral upper extremity radiculopathy, for bilateral lower extremity radiculopathy, and entitlement to a TDIU. In December 2010, the Veteran testified before the undersigned Veterans Law Judge at the RO (Travel Board hearing); a transcript of that hearing is of record. The issues of service connection for bilateral lower extremity radiculopathy, an evaluation in excess of 20 percent for low back disability, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Competent and persuasive evidence of record does not reflect that a cervical spine disability was caused or aggravated by service or that it is proximately due to or aggravated by service-connected low back disability. 2. Competent and persuasive medical evidence reflects that the Veteran's bilateral upper extremity radiculopathy was not incurred in or aggravated by service, and is not proximately due to or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. A cervical spine disability was not incurred in or aggravated by active service, nor may service incurrence of cervical spine spondylosis be presumed; a cervical spine disability is not proximately due to or the result of service-connected low back disability. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2010). 2. Bilateral upper extremity radiculopathy was not incurred in or aggravated by active service and is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (Court) have been fulfilled. In this case, the Veteran's claims for service connection for cervical spine disability and for bilateral upper extremity radiculopathy were received in May and July 2008, respectively. Thereafter, he was notified of the general provisions of the VCAA in correspondence dated in July and September 2008. These letters notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claims, identified his duties in obtaining information and evidence to substantiate his claims, and provided other pertinent information regarding VCAA. Thereafter, the claims were reviewed and a rating decision was issued in December 2009. A statement of the case was issued in January 2010. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). The Court, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. Notice as to this matter was provided in the July and September 2008 letters. The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal. His service treatment records and private medical records from Metropolitan Pain Center, Baptist Medical Center, Dr. I.S., and Dr. G.H. have been obtained and associated with his claims file. The Veteran has also been provided with a VA examination in February 2009 to assess the current nature and etiology of his cervical spine disability and upper extremity radiculopathy. Furthermore, the Veteran has not identified any additional, relevant evidence that has not been requested or obtained. The Veteran has been notified of the evidence and information necessary to substantiate his claims, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claims. Laws and Regulations - Service Connection The law provides that service connection may be granted to a veteran for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2010). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Additionally, a disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Specifically, when aggravation of a disease or injury for which service connection has not been granted 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, 448 (1995). Any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Id. The rating activity will determine the baseline and current levels of severity under VA's Schedule for Rating Disabilities (38 C.F.R., part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id. The Court has held that 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 Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2010). Factual Background and Legal Analysis The Veteran asserts that his cervical spine disability and upper extremity radiculopathy is secondary to his service-connected low back disability. During the December 2010 Board hearing, he testified that his low back disability caused episodes of leg weakness and leg locking. He said that the episodes occurred intermittently and infrequently, but have caused him to fall on several occasions. He said that he fell and hit his head while working at Dulles airport in December 2002, and that he hurt his neck as a result of the fall. Specifically, he said that his left knee locked up and gave way when he hit a patch of ice, causing him to fall backwards and hit his head on the tarmac. He said that he went to a hospital in Leesburg, but was unable to identify the hospital or the doctor that treated him after this incident. Historically, the Veteran's service treatment records reflect that he injured his low back while moving furniture in April 1995. A May 1995 magnetic resonance imaging (MRI) showed an anterior wedging deformity of the L-1 vertebral body; disc desiccation at the L2-3, L4-5, L5-S1 levels; disc bulging at the L2-3 level; focal disc protrusion at the L4-5 level; and disc protrusion at the L5-S1 level. The July 1995 annual medical examination report indicates that he had HNP at the L4-L5 and L5- S1 levels. During the April 1999 VA examination for the lumbar spine, the Veteran reported that he had pain two or three times each month that began in his anterior hip and went into his testes. During these flare-ups, he said he was unable to lift his left leg and walk in a normal fashion. Neurological examination was completely normal. The report does not indicate that the Veteran had any neck pain. During the August 2000 VA examination for the lumbar spine, the Veteran reported that he had severe painful low back spasms with symptoms into his lower extremities. He said that he had these episodes once every two to three months. The report does not indicate that the Veteran had any neck pain. A December 2002 Workers' Compensation form indicates that the Veteran reported that he fell on ice in a dark area. He noted that he went backwards and fell onto the back of his head. He reported that he had a severe headache and injury to his left elbow. A witness also noted that the Veteran fell and was in pain. There was no indication on this form that the Veteran injured his neck during this incident. On the form, there were questions regarding medical treatment, loss of time from work, loss of income. To each question, the Veteran responded "N/A". The August 2004 VA examination report indicates that the Veteran said that he fell a couple of years ago on ice and struck his head. He said he was worked up for radiation of numbness into the right upper extremity, but never had any significant radiation into his lower extremities. In a September 2004 addendum to the report, the examiner noted that the MRI of the lumbar spine showed degenerative joint disease (DJD) in the facet joints with some disc bulging at the L3 and L4 levels, but no evidence of neural compression. An April 2005 private medical record from Dr. G.H. indicates the Veteran complained of a 10-year history of recurring pain and popping in his neck and back with numbness and pain in his arms and legs. On physical examination, he had normal range of motion of the neck and lumbar spine. Scoliosis was present. The neurologic examination was normal. A May 2005 record notes that a MRI showed degenerative changes with stenosis mainly at the C5- 6, C6-7, and L2-3 levels. Scoliosis of the lumbar spine was also noted. An August 2007 private medical record from Dr. I.S. indicates the Veteran complained of a 12-year history of neck pain (since 1995). He said there was no precipitating event or trauma. The diagnosis was cervical disc displacement. A November 2007 record indicates that the Veteran had an epidural steroid injection for low back pain. Neurologic examination was normal with 5/5 motor strength bilaterally throughout, deep tendon reflexes +2 bilaterally throughout, sensation intact to light touch and pressure, and normal gait. A December 2007 record also notes that the Veteran's neurologic examination of the lower extremities was normal. In a February 2008 statement, the Veteran indicated that he experienced groin pain from low back impingement that made it difficult to maintain a normal walking gait. The report of a March 2008 VA examination for the lumbar spine indicates that the Veteran noted that he had a history of numbness and paresthesias, but no leg or foot weakness, no history of falls, and no unsteadiness. The examiner noted that the Veteran did not have muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait. Private medical records from Baptist Medical Center indicate that the Veteran underwent cervical radiofrequency ablation, C4, C5, and C6 in April 2008, and radiofrequency lesioning, L3-4, L4-5, and L5-S1 in June 2008. In May 2008, the Veteran filed a claim for service connection for a neck condition. In a September 2008 letter, Dr. S.I. indicated that the Veteran had degenerative disc disease in his cervical spine with disc bulging and moderately severe spinal stenosis. The physician did not comment on the etiology of the Veteran's cervical spine disorder. In a September 2008 statement, the Veteran asserted that the condition in his neck was brought about gradually due to inter- muscular and inter-skeletal problems resulting from chronic pain, numbness, stiffness, and "locking up" of his lower back and legs. He also said that these episodes caused him to have an unsteady gait and that he had fallen and hit his head resulting in trauma and upper extremity tingling, numbness and pain. The report of a February 2009 VA examination for the spine indicates that the Veteran said that he began having neck pain in 1995. He said he later developed left arm numbness when going up an incline. He said that he fell on ice in 2003 after his leg locked up. He said that he had fallen on a few occasions and believed that this aggravated his neck. On physical examination, the Veteran's gait was normal. The examiner indicated that there was no muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait. Motor, sensory, and reflex examinations of the lower extremities were normal. The examiner indicated that there was no clinical evidence of lumbosacral radiculopathy. The examiner opined that the Veteran cervical spine disability was "less likely as not" caused by or a result of his service-connected lumbar spine disability. The examiner explained that based on a review of the medical records, medical literature, and his clinical experience as a neurologist, the etiology of the Veteran's falls was unclear, noting that there was no documentation by physicians related to the described events. The examiner also indicated that the Veteran's cervical spine disease was diffuse and was likely separate and not at all related to his low back condition. The examiner concluded that a nexus could not be made between his cervical spine disability and his service-connected lumbar spine disease. In a March 2009 statement, the Veteran indicated that prior to his back injury in 1995, he never had a problem with his neck and that he did not realize he had a neck problem until 2008. He said that he did not realize that the pain, numbness, and tingling in his arms was a result of neck impingement and that he thought it was all a result of his lower back problem. During his December 2010 hearing before the undersigned Veterans' Law Judge, the Veteran testified that following the slip and fall injury in 2002, he sought treatment at a hospital in Leesburg, VA, although he could not recall the name of the hospital or the treating physician. In this case, the Veteran's assertions concerning the etiology of his neck pain and cervical spine disability have conflicted. At times, he has asserted that he has had neck problems since 1995 and that there was no particular event or injury that caused the neck pain. More recently, he has asserted that his neck problems are directly attributable to a fall that occurred in December 2002. To the extent that he asserts that his cervical spine disability is related to the December 2002 fall at Dulles International Airport, this is not shown by the contemporaneous lay or medical evidence. In this regard, the Board points out that December 2002 Workers' Compensation incident report makes no mention of his leg giving way or locking up nor does it even indicate that he injured his neck in the fall. Nor does the report not that the Veteran sought treatment following the injury. His response on the Worker's Compensation form regarding treatment was "N/A", which the Board interprets as not seeking treatment. Any treatment would have been documented to support his Worker's Compensation claim. Furthermore, although the Veteran reported that he fell on ice and struck his head during the August 2004 VA examination, he did not indicate that he hurt his neck nor did he report that his leg or knee gave way or locked up. In this case, the Board finds the contemporaneous lay and medical evidence more persuasive than later statements made by the Veteran in the course of pursuing his claim for benefits. The Board also points out that although the Veteran has had subjective complaints of an altered gait and problems with his lower extremities, there is no objective evidence to support this. The Veteran's motor, sensory, and neurological examinations of the lower extremities have all been normal and the VA examiners have indicated that there has been no muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait. In this case, the objective medical evidence is more persuasive than the Veteran's subjective complaints. This evidence tends to weigh against the Veteran's assertions that his lumbar spine disability has caused him to fall and hurt his neck. It also weighs against any assertions that an altered gait caused or aggravated his cervical spine condition. To the extent that the Veteran asserts that his cervical spine disability is a progression of, or is otherwise secondary to, his lumbar spine disability, the Board points out that the only medical opinion of record addressing this question weighs against the claim. The February 2009 VA examiner opined that the Veteran's cervical spine was diffuse and that it was separate and not at all related to the lumbar spine disability. The Board notes that the Veteran himself believes that his current cervical spine disability is related to his service- connected spine disability. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. In this case, although the Veteran is competent to report that he hurt his neck when he fell in December 2002, as noted above, the contemporaneous lay and medical evidence do not support these assertions and the Board does not find them to be credible. Otherwise, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology. Although the Board has considered the written statements of the Veteran and his representative, to the extent that any such lay statements are being offered to answer the question of whether the Veteran's current cervical spine disability is related to his service-connected low back disability, such evidence must fail. Such matters are within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are laypersons without the appropriate medical training or expertise, they are not competent to render probative (i.e., persuasive) opinions on these medical matters. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Consequently, the lay assertions as to the etiology of the Veteran's cervical spine disability have no probative value. The Board acknowledges that the Veteran has also asserted, and the medical evidence indicates, that his bilateral upper extremity radiculopathy is secondary to cervical spine disability; however, as noted above, the claim for service connection for cervical spine disability has been denied. Therefore, service connection for bilateral upper extremity radiculopathy as secondary to cervical spine disability is not warranted as a matter of law because the element of having a service-connected disability is not met. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 C.F.R. § 3.310(a) (2010). For the foregoing reasons, the claims for service connection for cervical spine disability and for bilateral upper extremity radiculopathy must be denied. In arriving at the decision to deny each claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, in the absence of competent and persuasive evidence to support the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for cervical spine displacement/spondylosis, to include as secondary to service-connected low back disability, is denied. Service connection for bilateral upper extremity radiculopathy as secondary to cervical spine displacement/spondylosis is denied. REMAND The Veteran's most recent VA examination for his service- connected lumbar spine disability was in February 2009. During the Board hearing, the Veteran testified that the disability had worsened since the February 2009 VA examination. Furthermore, since the Veteran's subjective complaints of bilateral lower extremity radiculopathy are related to his lumbar spine disability, the Board finds that these disabilities are inextricably intertwined and should be considered together. Based on the foregoing, the Board finds that a more contemporaneous examination, responsive to the pertinent rating criteria, would be helpful in evaluating the Veteran's lumbar spine disability and claimed bilateral lower extremity radiculopathy. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous). Finally, the Board notes that further development and adjudication of the Veteran's claims for service connection and for increase may provide evidence in support of his claim for TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and obtain the names and addresses of all medical care providers who treated the Veteran for low back disability and bilateral lower extremity radiculopathy. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. After any requested records are obtained and associated with the claims folder or determined to be unavailable, the Veteran should be afforded a VA spine examination to determine the severity of the service- connected low back disability. All indicated tests and studies are to be performed, and a comprehensive recreational and occupational history is to be obtained. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the physician. The examination must be conducted following the protocol in VA's Disability Worksheet for VA Spine Examination, revised on April 20, 2009. The examiner is to indicate whether because of the Veteran's age, body habitus, neurologic disease or other factors not the result of disease or injury of the spine, the range of motion of the spine should be considered normal, even though it does not conform to the normal range of motion. The examiner must supply an explanation if the assessment is that the range of motion is normal for the Veteran. The examiner should identify the existence, and frequency or extent, as appropriate, of all neurological impairment associated with the Veteran's low back disability, to include radiculopathy. The examiner should clearly indicate whether any such impairment constitutes a separately ratable neurological manifestation of the service-connected low back disability; and, if so, the examiner should provide an assessment of each such manifestation-as mild, moderate, moderately severe, or severe. The examiner should also comment on the impact of the Veteran's service-connected low back disability on his ability to work, to include whether it renders him unemployable. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 4. After completion of the above and any additional development deemed necessary, the issues remaining on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2010). ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs