Citation Nr: 1301415 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 07-12 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for a cervical spine condition, to include as secondary to service-connected right shoulder disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to March 1970, September 1997 to June 1998, August 1998 to March 2000, March 2000 to September 2001, and June 2002 to January 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 decision rendered by the Ft. Harrison, Montana Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision, the RO denied entitlement to service connection for a cervical spine condition on a direct basis only. In a January 2012 supplemental statement of the case (SSOC), the Appeals Management Center (AMC) considered the question of a secondary basis for entitlement in addition to a direct analysis. The matter on appeal has been remanded twice by the Board for additional development. In November 2010, the Board instructed the RO (via the AMC) to provide the Veteran with a VA examination in order to determine the nature and etiology of the Veteran's claimed cervical spine disorder. Based on the incomplete and inconsistent findings recorded in a December 2010 VA examination report and a June 2011 addendum to the examination report, in a December 2011 remand, the Board instructed the AMC to seek clarification about the recorded findings from the VA examiner who conducted the December 2010 VA examination. Later in December 2011, that VA examiner provided a supplemental medical opinion, in which she clarified her previous findings. The AMC readjudicated the Veteran's cervical spine condition claim in the January 2012 SSOC. The Veteran's claims file has been returned to the Board for further appellate review. It appears from a review of the record that the Veteran seeks to reopen his previously denied claim for entitlement to service connection for sleep apnea as well as seek entitlement to a disability rating in excess of 10 percent for service-connected right shoulder disability. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The evidence of record is against a finding that the Veteran has a current cervical spine or cervical radiculopathy disability. CONCLUSION OF LAW The criteria for entitlement to service connection a cervical spine condition have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Stegall Concerns As was alluded to in the Introduction, the Board remanded the Veteran's cervical spine condition claim in November 2010, and again in December 2011 for additional evidentiary development. In particular, the Board instructed the RO (via the AMC) in November 2010 to schedule the Veteran for a VA examination so that the nature and etiology of any diagnosed cervical spine condition could be addressed. Notably, the Veteran was provided with a VA examination in December 2010. In that examination report, the examiner found that there was no evidence of a current disability. However, at the time of that examination, the Veteran's claims folder was not available for review by the examiner. In a June 2011 addendum to the December 2010 examination report, the examiner noted that she had reviewed the Veteran's claims folder and the findings from the December 2010 VA report, and she confirmed her finding that there was no evidence of a current disability. The examiner also concluded that the Veteran's previous complaints were not related to his period of service. The AMC readjudicated the Veteran's claim in a September 2011 SSOC. On return of the issue to the Board in December 2010, the Board found that the December 2010 VA examiner failed to consider the previous diagnosis of cervical radiculopathy recorded in the medical evidence as well as the Veteran reports of continuity of symptomatology since his period of service. Also, the Board observed that the examiner failed to provide a rational in support of her medical conclusion in the June 2011 addendum. As such, the Board remanded the Veteran's claim again in December 2011 so that the December 2010 VA examiner could provide a more clear and comprehensive medical statement regarding her previous findings. In December 2011, the December 2010 VA examiner again reviewed Veteran's claims folder and the findings from the December 2010 VA examination report, and provided supplemental medical statement that clarified her previous medical findings and conclusion. This December 2011 VA supplemental medical opinion report has been incorporated in the Veteran's claims folder. As noted above, the AMC then readjudicated the Veteran's cervical spine condition claim in a January 2012 SSOC. Thus, the Board's prior remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271(1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA and under Dingess by letters mailed in August 2005 and March 2006. Subsequently, in July 2006, the RO adjudicated the Veteran's claims in the first instance. The Veteran filed a timely appeal as to this rating decision. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to his service-connection claim for a cervical spine disorder. Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, his lay statements of argument, and identified VA and private treatment records have been obtained. Pertinently, the Veteran has not indicated that any other VA treatment reports relevant to his cervical spine condition currently exist, nor has he requested that the VA attempt to obtain any other private treatment records. Pursuant to the Board's remand directives in November 2010, a December 2010 VA examination was conducted in conjunction with this appeal. A June 2011 addendum to the examination report was provided in which the examiner stated that she reviewed claims folder and she confirmed her previous findings. Also, pursuant to the Board's December 2011 remand directives, a December 2011 supplemental medical opinion from the same VA examiner was obtained and associated with the claims folder. The Board observes that the findings collectively contained in those documents are more than adequate to adjudicate the Veteran's claim. The report of the examination reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, and conducted an appropriate examination. In the December 2011 medical opinion report, the examiner provided clear and comprehensive medical statement in support of her medical conclusion that there was no diagnosis based on the current clinical evidence. Her medical conclusion was based on a review of the entire claims folder, including the service and post-service treatment records, and considered the Veteran's reported history as well as the findings from clinical evaluation. The Board therefore concludes that collectively these reports contain sufficient information for adjudication purposes. See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the issues on appeal have been met. 38 C.F.R. § 3.159(c)(4). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of these issues has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103. He has retained the services of a representative. He has declined the opportunity to testify before a member of the Board. Accordingly, the Board will address the claim on appeal. Service Connection Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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). Essential to the award of service connection is the first Hickson element, existence of a disability. Without it, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) [noting that service connection presupposes a current diagnosis of the claimed disability]; see also Chelte v. Brown, 10 Vet. App. 268 (1997) [observing that a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection]. Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In addition, a disability that is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition. Establishing service connection on a secondary basis 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. A disability which is aggravated by a service-connected disorder may be service connected, but compensation is only available for the degree to which that condition was made worse by the service-connected condition - only to the degree that the aggravation is shown. 38 C.F.R. § 3.310. In such situation, VA laws require that the medical evidence must show a baseline level of severity of the nonservice-connected disease or injury, which is established by medical evidence created before the onset of aggravation. Id. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, the Veteran contends that he has a current cervical spine disorder that is due to working and living in cramped conditions while on active duty. Specifically, he contends that when he worked overseas in Qatar, Kuwait, and other locations in Southwest Asia, he slept on short mattresses with little padding. He describes his workspace as similarly cramped and indicates that he started to develop headaches and tingling in the neck. He has submitted statements from service buddies who also describe the poor living and work conditions. After discharge, the Veteran alleges that he had a couple further incidents of headaches and tingling but "thought nothing of it." In September 2003, the Veteran awoke with left neck, shoulder and elbow pain, and tingling in the neck. He reports that he has continued to experience similar symptoms since then. None of the Veteran's service treatment records shows that he complained of, sought treatment for, or was diagnosed with any cervical spine condition. The report of his November 2002 examination prior to separation from his last period of service shows that his spine was evaluated as normal. The Veteran did not indicate any cervical spine or associated neurologic problems in the associated report of medical history. The Board observes that service connection has been awarded for degenerative changes in the right shoulder as there is X-ray evidnece of arthritis in that shoulder within one year following separation from service. Medical records confirm that the Veteran was treated in September 2003 for neck symptoms after he awoke with neck pain and tingling. He described the pain as stabbing and burning in nature. Physical examination revealed slight tenderness in the neck. There were no neurologic abnormalities observed. X-ray films were negative. An impression of left shoulder pain and neck pain, with a questionable impingement were provided. He was treated with pain medication. An October 2003 private treatment record shows that the Veteran received follow-up care from his treating physician. The Veteran was assessed with cervical radiculopathy and treated with pain medication. Subsequent October 2003 and February 2004 private treatment records note that the Veteran's symptoms had improved to where he no longer had neck pain and the numbness was abating. However, later treatment records in 2005 show that the Veteran was treated for recurrent cervical radiculopathy manifested by sensory deficiencies in the left fingers and neck stiffness. He was advised on proper ergonomics for the workplace. A September 2006 VA treatment record shows that the Veteran reported a history of cervical radiculopathy. Although no objective findings were recorded, he was assessed with cervical radiculopathy at that time. A March 2007 VA magnetic resonance imaging (MRI) report of the cervical spine was negative. The Veteran was afforded a VA examination in December 2010. In the examination report, the examiner noted the Veteran's reported history of a gradual onset of neck pain that started shortly after his last period of service. He described the neck pain as constant with associated symptoms of tingling. No objective evidence of musculoskeletal or neurologic impairment was observed on physical examination. X-ray film revealed no pathology. After examination of the Veteran and review of his claims folder, the VA examiner declined to diagnose the Veteran with a cervical spine disability in a June 2011 addendum. The examiner reported that "X-rays negative for pathology. Previous Cervical spine MRI negative for pathological conditions. Examination of 12/20/10 was negative for objective findings." Since no cervical spine disability was diagnosed, the VA examiner did not render an opinion as to whether the Veteran's cervical spine disability was related to his military service. Pursuant to the Board's December 2011 remand directives, the December 2010 VA examiner again reviewed the claims folder and the findings from the examination report, and provided a supplemental medical statement in support of her previous findings. The examiner stated the following: This examiner's opinion stands as previously documented times two. It is this examiner's opinion that there is no diagnosis of a cervical spine condition or radiculopathy in association with a cervical spine condition. X-rays negative for pathology. Previous Cervical spine MRI negative for pathological conditions. Examination of 12/20/10 was negative for objective findings. [Range of motion] and strength intact. The Veteran was treated in 2003 for cervical radiculopathy. There is no objective evidence to support this assessment. One or two occurrences while in military service does not constitute a chronic disabling condition. Current studies show no objective evidence to support the 2003 diagnosis of "cervical radiculopathy." In this examiner's opinion it is just as likely as not that the treatment in 2003 was actually related to his right shoulder condition rather than being a specific cervical radiculopathy. No [Electromyography] available to support cervical radiculopathy for the 2003 exam and diagnosis. In this examiner's opinion the subjective complaints of "cervical radiculopathy" is less likely than not due to, caused by or aggravated by military service or by the Veteran's [service-connected] right shoulder disability. No objective evidence of a specific cervical spine condition as stated previously. As noted above, in order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the two. See Hickson, 12 Vet. App. at 253. Furthermore, the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). With respect to crucial Hickson element (1), the weight of the evidence of record does not demonstrate that cervical radiculopathy, or any cervical spine condition, currently exists or has existed at any time during the course of the appeal. Crucially, the VA examiner concluded that clinical medical evidence failed to demonstrate a cervical spine condition or radiculopathy in association with a cervical spine condition. The examiner based her opinion on a review of contemporaneous reports from the clinical diagnostic testing that were negative for cervical spine abnormalities and there was no objective clinical evidence of cervical impairment upon physical examination. Even after a review of all the medical evidence of record, the VA examiner confirmed that there is no objective medical evidence to support such a diagnosis. The examiner specifically addressed the prior conclusions made by other health care professions that the Veteran had cervical conclusion. She provided a sound rationale for disagreeing with those conclusions, citing to a history of negative findings of cervical disability on previous neurologic and radiographic diagnostic testing. The Board recognizes that the Veteran did in fact seek treat for complaints of neck pain and he has been previously diagnosed with cervical radiculopathy by his private physician from 2003 to 2005. The Veteran also presented with complaints of neck pain in 2007 at the VA medical facility. However, in contrast to the recent opinion from the VA examiner in 2011, the opinion proffered by the private physician do not provide a rationale for the conclusion or discuss the contemporary diagnostic testing reports that revealed findings of neurologic impairment or any condition involving the cervical spine. Specifically, the examiner does not reconcile his opinion with the 2003 private treatment records noting there was no radiologic evidence of cervical spine disorder or the 2007 VA MRI report and 2010 VA x-ray report that revealed no abnormalities involving the Veteran's cervical spine. Based on the foregoing, the Board has placed greater weight on the VA examiner's conclusion that the Veteran's did not have a cervical spine disability and that his reported symptomatology manifested by neck pain and tingling observed in 2003 was more likely associated with his right shoulder disability than with a separate cervical spine condition . To the extent that the Veteran has any neurologic involvement manifested his right shoulder disability that will be considered in the adjudication of his referred claim for an increased rating, as noted in the Introduction. This decision will only discuss the merits of a separate claim for service connection for cervical spine condition. The Board recognizes the Veteran's lay testimony of record, and has no reason to doubt that the Veteran has experienced recurrent symptoms neck pain and tingling at time since his period of service. The Veteran is indeed competent to testify as to such observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Crucially however, internal disabilities affecting the spine and neurologic system are complex latent disabilities that can only be competently diagnosed by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) [noting, in a footnote, that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer]. As such, the Veteran's lay assertion that he currently experiences pain in his cervical spine does not constitute competent clinical diagnosis of an existing cervical spine disability. See 38 C.F.R. § 3.159(a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Thus, despite the reports in-service injury and the report of continued complaints noted in the private medical records from 2003 to 2005, the weight of the evidence is against a finding that the Veteran had a cervical spine disability at any time during the course of the appeal. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his service-connection claim, in particular evidence of a current disability; he has not done so. See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim for VA benefits]. In the absence of any diagnosed cervical spine condition, service connection may not be granted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. In the absence of any current diagnosed cervical spine disability, service connection may not be granted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. Accordingly, Hickson element (1) has not been met as to the Veteran's claim, and they fail on this basis alone. The benefits sought on appeal are denied. ORDER Entitlement to service connection for a cervical spine condition is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs