Citation Nr: 1214024 Decision Date: 04/17/12 Archive Date: 04/27/12 DOCKET NO. 98-19 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a thoracic spine disability. 3. Entitlement to service connection for a lumbar spine disability. 4. Entitlement to service connection for a left arm disability. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Esq. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from September 1967 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1998 rating decision of the Seattle, Washington, regional office (RO) of the Department of Veterans Affairs (VA). This appeal has previously been before the Board, including most recently in May 2009 when the issues on appeal were each denied. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In March 2011, a memorandum decision of the Court vacated the May 2009 denials and remanded the appeal for further development. That portion of the May 2009 Board decision that granted service connection for a left shoulder disability was left undisturbed. The remaining matters have been returned to the Board for action consistent with the March 2011 Court decision. The issue of entitlement to service connection for a left arm disability will be 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. Competent medical opinion finds that the Veteran's current degenerative joint disease of the cervical spine is the result of the March 1968 automobile accident during active service. 2. Competent medical opinion finds that the Veteran's current degenerative joint disease of the thoracic spine is the result of the March 1968 automobile accident during active service. 3. Competent medical opinion finds that the Veteran's current degenerative joint disease of the lumbar spine is the result of the March 1968 automobile accident during active service. CONCLUSIONS OF LAW 1. Degenerative joint disease of the cervical spine was incurred due to active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.303(a), 3.307, 3.309 (2011). 2. Degenerative joint disease of the thoracic spine was incurred due to active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.303(a), 3.307, 3.309 (2011). 3. Degenerative joint disease of the lumbar spine was incurred due to active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.303(a), 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. The Board finds that the duty to notify and duty to assist the Veteran has been met in this case. Furthermore, given the favorable nature of this decision, any failure in the duty to notify or duty to assist is harmless error, as it has failed to result in any prejudice to the Veteran. It is contended by and on behalf of the Veteran that his disabilities of the cervical, thoracic, and lumbar spine were incurred as a result of an in-service automobile accident. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494-95 (lay person may provide eyewitness account of medical symptoms). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient 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) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). If degenerative arthritis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The service treatment records reflect treatment following a March 1968 automobile accident, with examinations following this accident including limitation of motion in the neck and left arm. The Veteran complained about back and neck pain following this accident, and physical examination findings also included swelling in the cervical spine with tenderness in the right cervical musculature. X-rays of the cervical spine revealed no fractures or other significant findings. The impressions included an acute cervical sprain. He was given analgesics and a protective collar for his neck. After a few days, the Veteran was said to have progressed satisfactorily and he was told to wear his collar for two more weeks. Following this two week period, he was told that he no longer needed to wear his protective collar and April 1968 records show he was released to his normal duties. No further relevant treatment during service is demonstrated, and the June 1971 separation examination did not reflect any complaints or findings of disability of the spine or neck. The post-service evidence reflects private treatment records in April 1978 for an acute onset of low back pain with radiation and numbness to the left lower extremity after the Veteran pushed a car out of the mud. These records refer to a "long term history of back problems", but he did not report a history of surgery or hospitalization. The impression at that time was lower lumbar strain. These records were signed by Dr. W.A. Henze. September 1980 records show that the Veteran complained of back pain of one month's duration. The pain developed after lifting some logs. He had a long history of back problems. The Veteran stated that he fell on his right hip and lower back about eight years ago and that he has had pain off and on ever since. The assessment was left sacroiliac strain. Although these records are not from Dr. Henze, follow up records dating 12 days later are signed by him. A private X-ray study obtained in September 1980 showed some minimal relative narrowing at the L4-5 level which could indicate some early degenerative disc disease or represent disc slippage. Otherwise the examination was normal. Additional private medical records from the 1980s indicate the Veteran missed some work due to pain radiating from his back to his gluteus. A November 1985 report by a panel of three private physicians related the findings of their examination of the Veteran's disabilities, to include his reports of stabbing low back pain. This report includes a lengthy discussion of the Veteran's history, and states that he was injured in August 1983 when lifting a tool box at work. He was also noted to have sustained several previous injuries, and noted that December 1977 chiropractic records show he was seen for low back pain following a motor vehicle accident one month earlier. The 1978 records for lumbar strain and the 1980 records showing a history of a fall onto his right hip and low back eight years earlier from Dr. Henze were also noted. An X-ray study of the lumbar spine was obtained, which was normal. After the examination, the diagnoses included status post lumbar strain, industrially related, resolved. Clinical evidence from the 1990s in pertinent part reflects treatment for neuromuscular complaints felt to possibly be due to an early onset of multiple sclerosis. A VA examination in July 1997 showed the Veteran reporting pain in the neck which he attributed to the 1968 automobile accident during service. The diagnoses at that time included cervical sprain with probable muscle spasm, an injury to the left arm and shoulder and low back pain. The physician said the examination was difficult, including that of the thoracic spine, due to instability and other symptoms associated with what was called "a strange neuromuscular disorder that has not been diagnosed as of yet". Reports from a September 1997 VA examination refer to X-ray evidence of mild degenerative changes at C5-C6; distal thoracic spondylosis and mid lower thoracic vertebral body wedging; and moderate L3-L4 degenerative disc disease and spondylosis. A December 1997 addendum completed by a VA physician was as follows" "The medical opinion is that the cervical, thoracic, and lumbar spine pain .........could be more probably than not related to the auto accident in 1968 as problems and complaints have been steady over the years and flare-ups have caused incapacitation for this Veteran". A February 1998 opinion from a VA physician, following a discussion of the pertinent evidence, including the service medical records, was that it was "not at all probable" that the Veteran's mild degenerative joint disease of the cervical spine, thoracic spine or lumbar spine shown by X-ray and examination in 1997 were related to service. While the examiner who completed this opinion noted that there was no evidence of a spine disability after service until the 1990s, it is noted that this opinion was completed before receipt of the private clinical records dated in the 1970s and 1980s discussed above. An opinion from Dr. Henze dated in January 2001 indicated that he had reviewed the medical chart from 1978 to 1990 and a large number of VA records in the Veteran's possession, and was that "on a more probable than not basis", the conclusion in the December 1997 VA examination addendum referenced above linking the disabilities at issue to the in-service auto accident was correct. Another opinion of record, which followed a VA examination of the Veteran in January 2002 and a discussion of the medical records, was that the degenerative changes in the cervical spine were probably related to age and that any cervical spine symptoms at that time were "probably not related to his cervical trauma in service. I think that it is a less than 50 percent chance that it is related [to service] although he did have evidence of whiplash cervical strain according to the [service medical] records." The physician who conducted this examination also found nothing in the record to support a conclusion that the Veteran's thoracic spine pain was related to service. Finally, the examiner stated that the Veteran's lower back pain syndrome demonstrated at the January 2002 VA examination was unrelated to the in-service automobile accident as there was nothing in his records indicating that he had a low back injury or strain due to this accident. The evidence includes a medical opinion, with supplemental statements, and medical treatise extracts from Craig N. Bash, M.D., who reported that he is one of only "a couple thousand neuroradiologists in America." In a February 2005 opinion, Dr. Bash found it "likely" that the Veteran's current degenerative changes in the spine were the result of the in-service automobile accident. Dr. Bash states in part that injuries to the spine early in life often lead to advanced degenerative changes later in life due to the resultant chronic ligament laxity and spine instability. He cited medical texts in support of this statement. He opined that the Veteran's current degenerative changes in the spine were the result of the in-service automobile accident, as his review of the record did not reveal any other "medically logical etiology." The Board obtained an opinion from an Independent Medical Examiner in March 2006. The Veteran's claims folder was reviewed, and after noting the injury and treatment in service, the examiner stated that there was no record of any treatment for the neck, or mid or lower back between 1968 and 1978. The examiner further noted the private medical records showing the 1978 incident of back pain after pushing a car. The examiner stated that based on the Veteran's history of no active complaints between 1968 and 1978, he had not sustained a significant injury in the 1968 in-service automobile accident. It was also noted that there was no evidence of treatment after the initial injury resolved up until the Veteran's 1971 discharge from service. He opined that the back pain reported by the Veteran in 1978 stemmed from a separate incident. Subsequent X-ray studies revealing degenerative changes of the C6-7 and C5-6 levels were noted, but based on the Veteran's medical history as well as the medical records these represented a chronic degenerative condition that was in no way service related. In a May 2006 follow up opinion, Dr. Bash submitted comments regarding the March 2006 opinion. He stated that while the focus of the original treatment after the 1968 injury had been the neck, the Veteran's being thrown from the car represented a significant trauma to the whole spine. The 1980 X-ray study showing degenerative changes was also noted, and Dr. Bash opined that the Veteran's degenerative changes at the age of 32 were out of proportion to his young age and were therefore likely due to his antecedent service time injury as his records do not document any other intervening spine injuries. An expert medical opinion was obtained from the Veterans Health Administration (VHA) in March 2012. The claims folder was reviewed by the examiner in order to formulate his opinions. The examiner opined that the Veteran currently had degenerative joint disease of the cervical, thoracic, and lumbar spine with questionable old wedging in the thoracic spine as well. He further opined that it was at least as likely as not that the Veteran's current cervical, thoracic, and lumbar spine disabilities were the result of the in-service injury when he was thrown from a motor vehicle. The examiner agreed with Dr. Bash that the post service injuries to the spine were in fact exacerbations of the back injury incurred in service. He also agreed that the Veteran had evidence of degenerative changes of the spine at a very early age, which would indicate a rather significant injury earlier in life. The examiner concluded that it was at least as likely as not that the Veteran's cervical, thoracic, and lumbar spine disabilities were related to military service, specifically being thrown from a motor vehicle while on active duty in 1968. While the Board requested an opinion from an orthopedic surgeon or a neurosurgeon, the VAMC Chief of Staff assigned the opinion request to a physician's assistant. The physician's assistant indicated that he had over 16 years of "orthopedic spinal surgery experience". The Board accepts the judgment of the Chief of Staff regarding the competence of the physician's assistant in this regard. On the basis of these opinions, the Board finds that the evidence supports entitlement to service connection for degenerative joint disease of the cervical, thoracic and lumbar spine. The service treatment records clearly establish that the Veteran sustained an injury to his back in a 1968 motor vehicle accident. The evidence also shows that the Veteran has a current diagnosis of degenerative joint disease that involves the cervical, thoracic, and lumbar spine. The remaining question has been whether or not the Veteran's current disabilities are related to the injury he sustained during service. Although the evidence includes several conflicting opinions as to whether or not the Veteran's current spine disabilities are the result of the in-service injury, the Board concludes that the opinions that relate the Veteran's disabilities to service are at least as probative as those that failed to find any relationship. Moreover, three different doctors and a physician's assistant have determined that the Veteran's disabilities are related to service, as opposed to three who have found there is no relationship. The doctors who believe there is a relationship include a private physician who has treated the Veteran for his back complaints since the 1970s. A VA doctor has also found a relationship, as has a private doctor who reviewed the medical records and the relevant literature. Finally, the March 2012 physician's assistant reviewed the entire record to include all the previous opinions. He found it was more likely than not that the Veteran's spine disabilities were related to the injury in service, and that the subsequent injuries really represented exacerbations of the original injury. In contrast, it must be noted that one of the opinions against a relationship was formulated prior to the receipt of all the earliest medical records. As the opinions in favor of a causal relationship between the Veteran's degenerative joint disease of the cervical, thoracic, and lumbar spine outweigh those against such a relationship, service connection is established for these disabilities. ORDER Entitlement to service connection for degenerative joint disease of the cervical spine is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to service connection for degenerative joint disease of the thoracic spine is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to service connection for degenerative joint disease of the lumbar spine is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran contends that he has a left arm disability that is a separate and distinct entity from his service connected left shoulder disability. The May 2009 Board decision determined that the Veteran did not have a current diagnosis of a left arm disability that was separate from the left service connected shoulder disability. The March 2011 Court decision notes that the record shows the Veteran has either a left arm disability or persistent and recurrent symptoms of an arm disability. The Court found that the Board should have remanded the Veteran's claim for service connection for a left arm disability in order to provide him and examination in order to determine whether or not there was a separate disability and, if so, whether or not it was related to service or another service connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic and neurologic examination of his left arm. The claims folder must be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be conducted. After the completion of the examination and review of the record, the examiner should attempt to express the following opinions: a) Does the Veteran have a current diagnosis of a left arm disability that is separate from the service connected left shoulder disability? b) If the answer to (a) is "yes", what is the diagnosis of this disability? Is it as likely as not that this disability is due to either an incident or injury during service, or due to the Veteran's service connected left shoulder, cervical, thoracic, or lumbar spine disabilities? c) If the answer to (a) is "no", what is the most likely cause or causes of the Veteran's symptoms? The reasons and bases for all opinions must be provided in full. If the examiner is unable to provide any portion of the requested opinions without resort to speculation, the reasons and bases for this opinion should be noted, and the evidence that would be required to provide the opinion should be identified. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran 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. 2011). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs