Citation Nr: 1222111 Decision Date: 06/25/12 Archive Date: 07/02/12 DOCKET NO. 07-06 395A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected rheumatoid arthritis. 2. Entitlement to an initial disability rating in excess of 30 percent for a left total hip replacement, to include the residuals of peroneal nerve damage with foot drop of the left lower extremity. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1970 to September 1978 and in the Florida Air National Guard from January 2003 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which, inter alia, denied the benefit sought on appeal. Procedural History In October 2004, the Veteran filed claims of entitlement to service connection for: (1) the residuals of a right elbow lipoma; (2) left ear hearing loss; (3) rheumatoid arthritis exacerbated by anthrax vaccinations; (4) a left total hip replacement; (5) the residuals of peroneal nerve damage with foot drop of the left lower extremity; (6) a back disorder; (7) a neck disorder; (8) a rash; (9) hypertension; (10) right ear hearing loss; and (11) a left elbow nodule. The July 2005 rating decision currently on appeal granted entitlement to service connection for the residuals of a right elbow lipoma and left ear hearing loss, assigning a noncompensable disability rating for both disabilities. The rating decision denied the remaining claims as well as entitlement to a 10 percent disability evaluation for multiple noncompensable service-connected disabilities. In July 2006, the Veteran submitted her notice of disagreement (NOD) with the RO's denial of her claims of entitlement to service connection for rheumatoid arthritis exacerbated by anthrax vaccinations, a cervical spine disability, a back disorder, the residuals of peroneal nerve damage with foot drop of the left lower extremity, and left total hip replacement. A statement of the case (SOC) was issued in February 2007, and the Veteran timely perfected her appeal in March 2007. The Veteran testified before the undersigned Veterans Law Judge in December 2009, sitting in St. Petersburg, Florida. A transcript of that proceeding has been prepared and incorporated into the evidence of record. In February 2010, these claims came before the Board. At that time, the claims of entitlement to service connection for rheumatoid arthritis and a left total hip replacement were granted, and the remaining claims were remanded to the Appeals Management Center (AMC) for additional evidentiary development, to include providing the Veteran with VA examinations. In September 2010, the RO issued a rating decision that granted entitlement to service connection for a left total hip replacement due to rheumatoid arthritis, to include the residuals of peroneal nerve damage with foot drop of the left lower extremity. The Veteran was provided notice of this determination on November 5, 2010. In a subsequent statement, received in October 2011, the Veteran's representative expressed disagreement with the currently assigned disability rating. Since the filing of a NOD initiates appellate review, this claim must be remanded for the preparation of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). In October 2011, the RO granted entitlement to service connection for a back disorder. In view of the foregoing, this issue has been resolved and is not before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). As noted above, the issue of entitlement to an initial disability rating in excess of 30 percent for a left total hip replacement due to rheumatoid arthritis, to include the residuals of peroneal nerve damage with foot drop of the left lower extremity, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. The Veteran will be notified if any further action on her part is required. FINDINGS OF FACT 1. The Veteran is currently service-connected for rheumatoid arthritis, which increased in severity beyond the natural progression of the disease, during the Veteran's second period of active duty service. 2. The preponderance of the evidence is against a finding that the Veteran currently suffers from a cervical spine disability that is the result of a disease or injury incurred in active duty service or secondary to a service-connected disability. CONCLUSION OF LAW A cervical spine disability was not incurred in or aggravated by active duty service, nor is it secondary to a service-connected disability. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all 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 Veteran. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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. Prior to initial adjudication of the Veteran's claim, a letter dated in November 2004 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. Subsequent letters dated in August 2006 and December 2008 provided the Veteran with notice of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although these letters were not sent prior to initial adjudication of the Veteran's claim, this was not prejudicial to her, since she was subsequently provided adequate notice, she was provided ample time to respond with additional argument and evidence, the claim was readjudicated and an additional supplemental statements of the case (SSOC) were provided to the Veteran in May 2009 and October 2011. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2011) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate her claim, as well as the avenues through which she might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA, and private medical records are in the file. The Veteran has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. The Board has also reviewed the Veteran's electronic Virtual VA file, which did not contain any new and relevant records. The records associated with the Veteran's successful Social Security Administration disability benefits claim have also been associated with the claims file. See Littke v. Derwinski, 1 Vet. App. 90 (1990). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The record indicates that the Veteran participated in VA examinations in June 2005 and August 2011, the results of which have been included in the claims file for review. The examinations involved review of the claims file, a thorough examination of the Veteran, and opinions that were supported by sufficient rationale. Therefore, the Board finds that the examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. Additionally, the Board finds there has been substantial compliance with its February 2010 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC scheduled the Veteran for a medical examination in August 2011, which she attended. The AMC later issued a SSOC in October 2011. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2011). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of her claim such that the essential fairness of the adjudication is not affected. II. The Merits of the Claim The Veteran contends that her currently diagnosed cervical spine disability is either the direct result of service, or due to the aggravation of her service-connected pre-existing rheumatoid arthritis. Governing Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131 (West 2002). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2011). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2011). In order to establish service connection for the claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Furthermore, arthritis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. See 38 C.F.R. §§ 3.307 , 3.309 (2011). Service connection may be established on a secondary basis for disability that is proximately due to, or the result of, a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2011). Secondary service connection may also be established for a disorder that is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 71 FR 52744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(c)); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Establishing service connection on a secondary basis essentially 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. Id. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Analysis As an initial matter, the Board notes that medical evidence establishes the presence of a cervical spine disorder. In December 2001, the Veteran was noted to have cervical spondylolisthesis. See Private Treatment Record, F.A. & A.I., December 27, 2001. In August 2005, the Veteran was diagnosed with degenerative joint disease and osteoporosis. See Private Treatment Record, D.P.R., M.D., August 31, 2005. These findings were confirmed by the August 2011 VA Joints examination. See VA Joints Examination Report, August 2, 2011. Accordingly, the Board finds that the Veteran has presented medical evidence of a current disability, thereby satisfying the first element of service connection. See Shedden, supra. Review of the Veteran's service treatment records reveals that upon entry into the Florida Air National Guard, the Veteran's neck and spine were considered normal. The Veteran herself indicated that she did not suffer from arthritis, rheumatism or bursitis. See Standard Forms (SFs) 88 & 93, Service Entrance Examination Reports, January 21, 2000. In January 2001, the Veteran was diagnosed with rheumatoid arthritis. See Private Treatment Record, F.A. & A.I., January 20, 2001. In December 2001, a treatment note from the F.A. & A.I., P.A. also determined that the Veteran suffered from cervical spondylolisthesis. See Private Treatment Record, F.A. & A.I., December 27, 2001. The Veteran was called to active duty in January 2003. In preparation for her deployment to the Southwest Asia Theater of Operations, the Veteran was given phase one of the Anthrax vaccine. The Veteran reported that after her initial Anthrax vaccination, she experienced horrible pain, including severe neck pain. See Travel Board Hearing Transcript, December 9, 2009, p. 8. Two weeks later, the Veteran was given phase two of the Anthrax vaccine. Again, the Veteran reported experiencing severe pain. Shortly thereafter, she went on sick call and was given Prednisone and made a full recovery. Id. at p. 9. Following receipt of the third and final phase of the Anthrax vaccine, the Veteran began to experience the same extremely painful symptoms. She was again placed on Prednisone. She reported that her symptoms began to abate, but that they have never completely resolved. Id. at p. 10. Ultimately, the Veteran was discharged in September 2004, due to the exacerbation of her pre-existing rheumatoid arthritis by the Anthrax vaccine. Although the Veteran was diagnosed with cervical spondylolisthesis during the time she was in the Florida Air National Guard, she was not on active duty at that time. Additionally, though the Veteran reported during her Board hearing that she experienced severe neck pain during the time she received the Anthrax vaccinations, there is no medical evidence of record that notes these complaints or diagnoses the Veteran with a cervical spine disability during her time in active duty service. As such, the Veteran has failed to establish that she suffered from a disease or injury to the cervical spine during active duty service, thereby failing to establish the second element of service connection. See Shedden, supra. Taking into consideration all of the relevant evidence of record, the Board finds that service connection for a cervical spine disability is not warranted on a direct basis. Though the Veteran was diagnosed with cervical spondylolisthesis in December 2001, she was not on active duty at the time, and there was no evidence of record to establish that she complained of or received treatment for a cervical spine disability during her second period of active duty service. Further, there is no competent medical evidence of record linking the Veteran's cervical spine disability to service. In fact, the Veteran herself does not contend that her current cervical spine disability is due to a specific disease or injury in active duty service. In light of the foregoing, the Board concludes that a preponderance of the evidence is against a finding that the Veteran's cervical spine disability had its onset in, or is otherwise directly related, to service. As indicated above, the Veteran also claims entitlement to service connection for a cervical spine disability as secondary to her rheumatoid arthritis. See 38 C.F.R. § 3.310(a) (2011). The Board notes that the Veteran is currently service-connected for the aggravation of her rheumatoid arthritis by the Anthrax vaccine. The remaining question is whether this condition caused or aggravated the Veteran's currently diagnosed cervical spine disability. To address this question, the Veteran was afforded a VA examination in June 2005. The VA examiner noted the Veteran's December 2001 diagnosis of cervical spondylolisthesis. At the time of the examination, the Veteran complained of cervical spine pain, which she attributed to her rheumatoid arthritis. Musculoskeletal examination revealed no evidence of swelling, effusion, or muscle spasm; however, tenderness was appreciated on palpation of all joints. The VA examiner noted that review of the medical literature was also important to provide documentation as to the clinical course of rheumatoid arthritis. This condition was noted to be a chronic systemic inflammatory disorder of unknown etiology that primarily involves the joints. The arthritis is symmetrical and could lead to destruction of joints due to erosion of cartilage and bone, which leads to deformity. The disease usually progresses from the periphery to more proximal joints and in patients who do not fully respond to treatment, result in significant locomotor disability within 10 to 20 years. See VA General Examination Report, June 29, 2005. In addition to the musculoskeletal affects, this condition was noted to have extra-articular features including anemia, fatigue, subcutaneous (rheumatoid) nodules, pleural pericarditis, neuropathy, vasculitis, and renal disease. The disease onset was noted as usually insidious with the predominant symptoms being pain, stiffness, and swelling of many joints. It was well-described that symmetrical involvement of joints was a characteristic feature. Further, variation was seen in the course of the disease activity and the rapidity of structural damage to the joints. Most patients were noted to show fluctuation of disease activity of a period lasting weeks to months. This corresponded to an increase or decrease in symptoms of arthritis, a pattern that may reoccur throughout the course of the disease. Structural damage caused by rheumatoid arthritis was noted to be cumulative and reversible. The degree of damage was closely linked to inflammation and hence to disease activity, it was also associated with degeneration and repair. As structural damage progresses, the detection of variation in disease activity by clinical examination becomes increasingly difficult. At the later stages, symptoms include pain, stiffness, tenderness, swelling and joint effusion, caused either by continuing rheumatoid disease or as a secondary result of mechanical and degenerative change. Physical examination yields key features such as pain and swelling of the affected joints. Further characteristic joint deformities are late manifestations of the disease that result from physical stressors and local anatomy of involved joints. Id. Based on the above information, extensive review if the Veteran's claims file, and of the medical literature, the VA examiner stated that it was less likely than not that the Veteran's claimed condition was the result of or due to her Anthrax vaccinations. Further, it was noted that it was less likely than not that her current cervical spine disability was due to aggravation of her rheumatoid arthritis due to the Anthrax vaccine. The VA examiner stated that this contention was not supported by the medical literature, nor was it supported by the information contained in the Veteran's claims file, or by information gained from the physical examination. Id. The Veteran was afforded a second VA compensation examination in August 2011. At that time, it was noted that she had a diagnosis of osteoarthritis of the cervical spine. The Veteran again reiterated that she began to have neck pain following the Anthrax vaccine in 2003. She noted that this pain comes and goes every few months, but flare-ups make it difficult for her to turn her head. Upon examination, no neurologic abnormalities were related to the Veteran's cervical spine. The VA examiner concluded that her mild degenerative joint disease or the cervical spine was not caused by, a result of, or aggravated by her service-connected rheumatoid arthritis, or due to either period of service. This conclusion was based upon the VA examiner's thorough review of the Veteran's claims file, the aforementioned medical literature and clinical experience. There was no evidence of any cervical spine disability in service, and there was "absolutely no relationship between degenerative joint disease and rheumatoid arthritis." Rather, the Veteran's cervical spine condition was determined to be degenerative and related to her age. See VA Spine Examination Report, August 2, 2011. The only evidence in support of the Veteran's contentions that her current cervical spine disability is the result of her aggravated rheumatoid arthritis consists of her own lay statements. As noted above, these statements are not probative so as to constitute a medical nexus statement. See Espiritu, supra; see also Jandreau, supra. The August 2011 VA examination report noted above, diagnosed the Veteran with mild degenerative joint disease of the cervical spine and rheumatoid arthritis, which have completely different pathophysiological mechanisms and are not etiologically related. For this reason, the Board finds that the Veteran's cervical spine disability was not caused by, the result of, or aggravated by her service-connected rheumatoid arthritis. See VA Spine Examination Report, August 2, 2011. Based on the aforementioned, the Board concludes that the evidence is against the Veteran's claim of entitlement to secondary service connection. In determining whether service connection is warranted, VA must determine whether the preponderance of the evidence supports or is against the claim. In this case, the preponderance of the evidence is against the Veteran's claim of service connection for a cervical spine disability on a direct and secondary basis, and the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert, supra. ORDER Entitlement to service connection for a cervical spine disorder is denied. REMAND As noted above, in September 2010, the RO issued a rating decision that granted entitlement to service connection for a left total hip replacement due to rheumatoid arthritis, to include the residuals of peroneal nerve damage with foot drop of the left lower extremity. The Veteran was provided notice of this determination on November 5, 2010. In a subsequent statement, received in October 2011, the Veteran's representative expressed disagreement with the currently assigned disability rating. Since the filing of a NOD initiates appellate review, the claim must be remanded for the preparation of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). This issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archibold v. Brown, 9 Vet. App. 124, 130 (1996). Accordingly, the case is REMANDED for the following action: The AMC/RO is requested to provide the Veteran with a SOC as to the issue of entitlement to an initial disability rating in excess of 30 percent for a left total hip replacement due to rheumatoid arthritis, to include the residuals of peroneal nerve damage with foot drop of the left lower extremity. The Veteran should be informed that she must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202 and 20.302(b) (2011). If a timely substantive appeal is not filed, the claim should not be certified to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 or by the Court 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). ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs