Citation Nr: 1300446	
Decision Date: 01/07/13    Archive Date: 01/11/13

DOCKET NO.  10-08 541	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for residuals of fracture to the cervical spine, to include as secondary to service-connected diabetes mellitus, type II.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

W. Yates, Counsel



INTRODUCTION

The Veteran served on active duty from February 1969 to February 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  


FINDING OF FACT

A cervical spine disability was not first manifested on active duty service or within the first post-service year; the preponderance of the evidence is against a finding that the Veteran's current residuals of fracture to the cervical spine are related to his military service or any service-connected disability.


CONCLUSION OF LAW

The criteria for service connection for residuals of fracture to the cervical spine, to include as secondary to service-connected diabetes mellitus, type II, have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  

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.  Those five elements include:  1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

January 2009 and March 2009 letters advised the Veteran of the foregoing elements of the notice requirements.  See Quartuccio, 16 Vet. App. at 187; see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  Accordingly, the RO effectively satisfied the notice requirements with respect to the issue on appeal.  

The RO has obtained all of the Veteran's service treatment records, as well as his identified post service treatment records.  The Board finds that a medical opinion is not required as there is no indication that the Veteran's residuals of fracture to the cervical spine may be associated with his military service or with a service-connected disability.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i).  As noted below, the Board does not find the Veteran's allegations herein to be credible; and the medical records in evidence do not suggest any etiological link.

There is no sign in the record that additional evidence relevant to the issue being addressed is available and not part of the record.  See Pelegrini, 18 Vet. App. at 112.  As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 473.  

Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period.  Arthritis is listed as a chronic disease for purposes of presumptive service connection.  38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a).  The applicable presumptive period is one year following separation from service.  38 C.F.R. § 3.307(a)(3).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology.  See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997).  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

The Veteran served on active duty in the Army from February 1969 to February 1971, including service in the Republic of Vietnam from September 1969 to February 1970.  His service treatment records revealed treatment for shell fragment wounds to the left arm, forehead, left tibia, and both legs in February 1970.  No complaints of or treatment for a cervical spine disability was indicated.  His separation examination, performed in November 1970, listed his spine as normal.  

In February 1971, the Veteran filed a claim seeking service connection for shrapnel wounds to his left arm and both legs.  No reference to any cervical spine disability was indicated.

An April 1999 VA examination for peripheral nerves noted the Veteran's history of new onset joint symptoms following a fall in 1988.  The report noted that an October 1998 x-ray examination of the Veteran's cervical spine revealed mid-cervical degenerative joint disease.  

A January 2000 MRI examination of the cervical spine revealed an impression of large posterior spurs, C5-C6-C7, resulting in cord impingement.  

A June 2007 treatment report noted that the Veteran had blacked out while driving his truck.  The report noted that he was found to have a fracture of his 11th rib, and that his blood sugar was over 400.  The Veteran indicated that he had stopped all of his medications prior to this incident, and the report noted that he was restarted on these medications during his hospital stay.

An August 2007 treatment report noted that the Veteran had been more compliant with medications for his diabetes mellitus.  

A December 8, 2007 hospitalization report noted that the Veteran had fallen down a flight of stairs injuring his cervical spine.  The report stated:

The patient was apparently trying to go to the bathroom, but it was dark and he opened the wrong door and went into the wrong opening and then fell down the stairs striking his head at the bottoms [sic] of the stairs on a brick wall.  Denies loss of consciousness.  He complains of neck and posterior head pain.   He denies any visual changes. 

The Veteran was placed in a C-collar to await neurosurgical evaluation.  The report concluded with an assessment of C1-C2 fractures, with no other apparent injuries except for contusions and abrasions related to the fall.  
A second December 8, 2007 hospitalization report noted that the Veteran had fallen backwards down the stairs.  It also noted that the Veteran, "tells me that before the fall he felt fine."

Subsequent treatment reports reveal that he sustained a hangman's fracture, as well as an associated traumatic pseudoaneurysm, and that he was placed in a cervical halo.   A December 2007 x-ray examination of the cervical spine revealed fractures of bilateral lateral masses of C2; C1 posterior fracture; and anterior fusion procedure from C3 to C7, unchanged.

In November 2008, the Veteran filed his present claim seeking service connection for residuals of fracture to the cervical spine.  He explicitly attributed this condition to a fall caused by a hypoglycemic episode on December 8, 2007.  

The Veteran has not alleged, and the evidence of record does not show, that a cervical spine disability was first manifested on active duty service or during the first year following service.  Neither direct nor presumptive service connection as a chronic disease are therefore applicable, and will not be further discussed.  38 C.F.R. §§ 3.303, 3.307, 3.309.

The sole evidence of a relationship between the Veteran's current cervical spine disability and his service-connected diabetes mellitus, type II, is the statements and opinion of the Veteran.  

The Veteran can attest to factual matters of which he had first-hand knowledge, e.g., painful feet.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran is competent to report the symptoms he observes through his five senses, such as numbness.  Layno v. Brown, 6 Vet. App. 465 (1994).  A layperson is also competent to describe an observable cause and effect relationship.  See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  In this instance, he is competent to repot his subjective observations that he felt dizzy or unstable and fell over.

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing competency from weight and credibility and noting that only competency involves a question of admissibility); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.").  

After reviewing the evidence of record, the Board finds the Veteran's contentions to be lacking in credibility, as they are inconsistent with the contemporaneous treatment records relating to this incident.  Medical treatment records close to and on date of the Veteran's fall, December 8, 2007, make no reference to any hypoglycemic episode.  A December 8, 2007 hospitalization report noted that he was headed toward the bathroom in the dark when he opened up the wrong door and fell down a set of stairs.  Another December 8, 2007 hospitalization report noted that the Veteran, "tells me that before the fall he felt fine."  These reports further indicate that the Veteran specifically denied any loss of consciousness.  Moreover, there is no reference to any hypoglycemic episode or other loss of stability issue.  

The preponderance of the evidence is against the Veteran claim; there is no doubt to be resolved; and service connection for residuals of fracture to the cervical spine is not warranted.


ORDER

Service connection for residuals of fracture to the cervical spine, to include as secondary to service-connected diabetes mellitus, type II, is denied.


____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs