Citation Nr: 1301449 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 08-15 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for cervical spine disability. 3. Entitlement to service connection for psychiatric disability. 4. Entitlement to service connection for a headache disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from January 1973 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the claims of service connection. The Board remanded the claim in November 2011 for further development. The issues of entitlement to service connection for lumbar spine disability and acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's cervical spine disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 2. The Veteran has not been diagnosed with a headache disorder. CONCLUSIONS OF LAW 1. The criteria for service connection cervical spine disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for service connection for a headache disorder not been met. 38 U.S.C.A. §§ 1101, 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in January 2007. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. VA has obtained service treatment records (STRs), assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. The November 2011 remand directed the RO/AMC to provide the Veteran examinations to determine the presence and etiology of any cervical spine and headache disability, and obtain ongoing VA treatment records. Such examinations were conducted in December 2011, and the ongoing treatment records were associated with the Veteran's Virtual VA electronic folder. The RO/AMC has substantially complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on these issues at this time. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Arthritis may be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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 professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. With respect to the Veteran's cervical spine disability, the Veteran's STRs are negative for any findings, complaints or treatment of a cervical spine condition and the Veteran has reported inconsistent statements as to the onset of the condition, but at the December 2011 VA examination, he stated that it was due to a post-service work injury, which is consistent with other evidence of record indicating a post-service onset of the condition. Thus, the Board finds as not credible any report of a continuity of cervical spine problems since service. Further, the examiner who conducted the December 2011 VA examination, after an examination and review of the Veteran's claims file, noted these findings and found that it was less likely as not that the Veteran's current cervical spine disability was caused by service. The Board finds that the preponderance of the evidence is against service connection for cervical spine disability in light of the absence of any cervical spine findings in service or for many years after service, the absence of medical evidence cervical spine problems with service and the Veteran's inconsistent reports as to the onset of the condition. As such, service connection is not warranted. As to the Veteran's headaches, the Board acknowledges that the Veteran's STRs reflect his in-service complaints of headache in July 1993 which was treated and resolved, and another episode of head cold in August 1973. The medical evidence, however, does not show that the Veteran has been diagnosed with a headache disorder at any time during the appeal. The Board acknowledges that the Veteran reports of experiencing ongoing headache pain since service notes that it is the type of symptom that he as a lay person is competent to report. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). Further, based on the Veteran's in-service headache complaints in service and reported continuity of symptomatology since service, the Board remanded the Veteran's claim to afford him a related VA examination and medical opinion. The requested examination was conducted in December 2011. However, after performing a physical examination of the Veteran and reviewing the Veteran's treatment records, the examiner noted the Veteran's complaints of continuous headache pain since service; but the examiner failed to diagnose the Veteran with a current headache disorder and noted the Veteran was not now or has ever been diagnosed with a headache condition. The Board acknowledges the Veteran's reports of experiencing headaches. However, pain is not analogous with disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, appeal dismissed in part sub nom., Sanchez- Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (dismissing challenge to the issue whether pain, alone, can be considered a disability). Thus, as the evidence of record fails to reflect a currently-diagnosed headache disorder, a basis upon which to grant service connection has not been presented. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that in the absence of proof of a present disability, there can be no valid claim). Accordingly, the Veteran's appeal of this issue is denied. The preponderance of the evidence is against the claims; there is no doubt to be resolved; and service connection is not warranted. ORDER Service connection for cervical spine disability is denied. Service connection for a headache disorder is denied. REMAND The Veteran has a right, as a matter of law, to compliance with the remand orders of the Board. Stegall v. West, 11 Vet. App. 268 (1998). Regarding the lumbar spine disability and acquired psychiatric disorder claims, in November 2011, the Board remanded the claims for additional examinations, and they were conducted in December 2011. However, the lumbar spine examination failed to adequately discuss the Veteran's in-service lumbar spine symptomatology and competent report of continuous low back symptoms since service. His appeal for service connection for an acquired psychiatric disorder is inextricably intertwined with his lumbar spine claim, inasmuch as a grant of service connection for the disability could affect the outcome of the acquired psychiatric disorder claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran claims, in part, that his acquired psychiatric disorder was caused or aggravated by his lumbar spine disability. Service connection is permissible on a secondary basis for disability that is proximately due to or the result of a service-connected condition. See 38 C.F.R. § 3.310(a). This includes situations where a service-connected condition has chronically, meaning permanently, aggravated the claimed disability, but compensation is limited to the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b), Allen v. Brown, 7 Vet. App. 439, 448 (1995). If service connection for a lumbar spine disability is ultimately granted, medical opinions of record do not address the question of aggravation of the Veteran's acquired psychiatric disorder by the lumbar spine disability. This should be accomplished on remand. Accordingly, the case is REMANDED for the following action: 1. Take appropriate measures to obtain copies of any outstanding records of pertinent VA or private medical treatment since August 2012. 2. Notify the Veteran that he may submit statements describing any continuity of symptoms since service associated with his claimed (1) lumbar spine disorder, and (2) acquired psychiatric disorder. 3. Thereafter, if still available, return the claims file to the December 2011 VA low back and mental disorders examiners so these examiners may provide supplemental opinions. If, for whatever reason, either of these examiners is no longer available or able to provide this additional comments (addendum opinions), then obtain these additional comments from a different examiners. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the examiners' discretion as to whether another examination is needed or, instead, this requested medical comment can be provided with review of the c-file. For any lumbar spine disorder found to be present, the examiner must opine as to whether it is at least as likely as not that the diagnosed condition: (1) is related to or had its onset during service; (2) in the case of arthritis, became manifest to a degree of 10 percent within one year from date of termination of service; or The examiner must acknowledge and discuss the Veteran's in-service treatment, to include the February 1993 diagnosis of low back strain. In offering any requested opinions, the examiner must also specifically acknowledge and comment on the Veteran's competent reports of current symptoms and continuity of symptoms since service as well as the in-service findings. The rationale for all opinions expressed should be provided. The mental disorders examiner should provide an opinion as to whether it is at least as likely as not that any current acquired psychiatric disorder is related to or had its onset in service or was caused or aggravated by his low back disability. If aggravation is found present, the examiner should address the following medical issues: (a) the baseline manifestations of the disabilities prior to the aggravation, and (b) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected low back disability based on medical considerations. The examiner should provide a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Then the RO should readjudicate the appeals. If any benefit sought on appeal is not granted, the AMC/RO should issue an SSOC and provide the Veteran and his representative an opportunity to respond. Then the case should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs