Citation Nr: 1302019 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 04-38 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a colon disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for residuals of a partially severed tongue. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to September 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from decisions rendered by the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2009, the Veteran testified at a hearing at the RO before the undersigned. A transcript of the proceeding is of record. In June 2009, the Board remanded these issues. In June 2009 the Board also remanded a claim for service connection for left ear hearing loss. In September 2006, the RO granted service connection for left ear hearing loss. Therefore, that claim is no longer on appeal. FINDINGS OF FACT 1. The Veteran does not have a colon disability, with the exception of hemorrhoids in that anatomical area. 2. The weight of the competent and probative evidence of record is against a finding that a current cervical spine disability is etiologically related to an injury during active military service. 3. The Veteran sustained a tongue laceration in service. However the weight of the probative evidence is against a finding that he has a current tongue disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a colon disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307 (2012). 3. The criteria for service connection for a tongue disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the Veteran's claims decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004) Here, July 2003 and September 2007 letters from the RO satisfied the notice requirements. In those letters, the RO advised the Veteran of the basic criteria for service connection and explained VA's duties to assist him in obtaining evidence relevant to the claims. The Board also concludes VA's duty to assist has been satisfied. The Veteran has identified private treatment records and they have been obtained. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The Veteran underwent VA examinations in December 2003, March 2005, December 2007, September 2008, March 2010, and June 2010. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the examination reports show that the examiners reviewed the Veteran's medical history, recorded his current complaints, conducted an appropriate examination, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board finds that there is substantial compliance with the requests of the Board's June 2009 remand directive. Stegall v. West, 11 Vet. App. 268 (1998). The RO obtained updated VA and private treatment records. The Veteran was afforded VA examinations as directed. Thereafter, the RO reconsidered the claim and issued a supplemental statement of the case. Nothing further was required. 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. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Legal Criteria 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. 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 (1995). 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 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board). Colon Disability The Veteran seeks service connection for a disability of the colon, other than hemorrhoids for which he has already established service connection in that anatomical era. The Veteran's service medical records show treatment for external hemorrhoids in 1974. In a March 1978 rating decision, the RO granted entitlement to service connection for a hemorrhoid disability. In July 2003, the Veteran filed a claim seeking entitlement to service connection for a colon condition and for hemorrhoids. The RO treated the claim as one claim for service connection for a colon condition other than hemorrhoids and a claim for an increased rating for service-connected hemorrhoids. The Veteran underwent a VA examination of the rectum in December 2003. A physical examination revealed probable internal hemorrhoids but did not reveal any separate colon disability. A June 2004 decision denied service connection for a colon condition. Thereafter, the Veteran submitted private treatment records dated in 1996 that included complaints of blood in the stool and constipation. A colonoscopy was performed and revealed that the blood in the stools was due to his hemorrhoids. No other colon condition was identified. In August 2004, the Veteran filed a substantive appeal to the denial of the claim for service connection for a colon condition. He underwent additional VA examination in March 2005. At that time, he complained of internal hemorrhoids with rectal bleeding. He also reported a history of treatment in September 2004 for a rectal fistula. A physical examination revealed hemorrhoids but no other colon disorder. In November 2005, a VA physician revealed the Veteran's claims file and provided an opinion indicating that the rectal fistula was unrelated to the Veteran's hemorrhoid disability. In an August 2008 letter, the Veteran described medical treatment in service for a hemorrhoid. He contended that the skin that was cut away in the process of removing the hemorrhoid resulted in a permanent weakening of the wall of his rectum. The Veteran underwent additional VA examination in September 2008. He reported hemorrhoids, hard stools, and blood in his stools. A physical examination did not reveal evidence of any hemorrhoids. A fistula was present. However, no other colon disability was identified. A December 2008 rating decision denied a claim for service connection for a fistula. The Veteran did not appeal that decision. During the February 2009 hearing, the Veteran reported that he had tearing on the rectum wall approximately three times a month that resulted in bleeding and physical discomfort. He reported that he had to wear a pad for leakage and bleeding. During a VA examination in June 2010, the Veteran described a small amount of fecal bleeding about twice a month which he attributed to reopening of his original hemorrhoid problems. A rectal examination revealed no external hemorrhoids or abscesses. No masses in the rectum were found. There was no evidence of bleeding or swelling and tenderness in the anal canal or perianal area. After review of this and other evidence in the claims folder, the Board finds that the preponderance of the evidence is against the claim. The Veteran's service treatment records show treatment in service for hemorrhoids. However, they do not show that the hemorrhoids resulted in any permanent impairment of the colon. Moreover, the current evidence does not show any permanent colon disability other than hemorrhoids and fistula. Service connection has already been granted for hemorrhoids and denied for fistula. For instance, the December 2003 VA examiner found that rectal bleeding had been attributed to hemorrhoids. Similarly, that VA examiner, and the VA examiners in March 2005 and June 2010, did not find evidence of any colon disability. The Board has considered the Veteran's lay testimony to the effect that he sustained permanent damage to his colon as a result of treatment for hemorrhoids in service. Lay 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 professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). While the Veteran is competent to describe symptoms such as blood in the stool, he is not competent to diagnose a colon wall disability. Such a diagnosis requires specialized medical training as it is not diagnosed by its unique and readily identifiable features. Moreover, to the extent that he is competent to make such a diagnosis, his lay opinion is outweighed by the numerous VA medical opinions which did not find any colon disorder. Accordingly, because the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cervical Spine In August 2007, the Veteran claimed entitlement to service connection for a current cervical spine disability which he attributed to an injury sustained while in the Navy. In particular, he described a hatch injury in which he was hit by a crank in the chin and bit his tongue. He alleged that he sustained severe whip lash that pinched nerves and caused deterioration in the C3-C6 region of the cervical spine. The Veteran's service treatment records document an injury in September 1976 when he was hit in the chin and bit his tongue. He was semi-conscious upon being transported and fully conscious within five minutes of the incident. He was able to conduct full range of motion of the head without pain but had a painful and tender mandible, a puncture wound to the chin, and an avulsion of the left superior surface of the tongue. The chin wound was closed with four sutures. On the Veteran's discharge examination in August 1977, there were no reports or findings of any cervical spine disability. The Veteran underwent a MRI examination in July 1995 due to complaints of bilateral shoulder pain and numbness in both arms. The examination revealed degeneration of the C6-7 disc with broad based posterior disc protrusion. No focal disc herniation was identified. In September 1996, the Veteran was treated for upper back pain after injuring it while moving a furnace. A November 2004 VA treatment record noted the Veteran's complaints of five day history of neck spasms. The impression was degenerative disc disease at C6-7. In 2005, he was treated for early glottis squamous cell carcinoma and had a right neck hematoma surgically removed. He also underwent a hemilaryngectomy. In a June 2005 letter, the Veteran's chiropractor, T. A. stated that the injury the Veteran received in the military was severe enough to knock him out and cause his neck to hyperextend. The chiropractor opined that the Veteran's current neck problems were due to the injury in the military. The Veteran underwent a VA examination in December 2007. The examiner described the Veteran's in-service injury as resulting in a brief loss of consciousness after a hatch hit him in the chin. The examiner found current evidence of degenerative disc disease at the C6-C7 level. The examiner stated that it was not likely that the current disability was related to the injury in service because the service records revealed injury to the chin but no injury to the neck. In July 2008, an orthopedic surgeon provided a letter describing treatment of the Veteran's neck condition. The orthopedic surgeon stated that the service records showed an injury in service to the neck. The orthopedic surgeon attributed current carpal tunnel syndrome to the in-service injury. Private treatment records document further treatment for laryngeal cancer with neck pain in 2009 and the Veteran underwent a laryngotomy. He developed an abscess and infection following the procedure. In July 2009, he was treated in the emergency room after falling in his home and hitting the back of his head on bricks causing him to lose consciousness. Records in 2010 described the cervical spine disability as intervertebral cervical disc disorder with myelopathy and acute osteomyelitis. The Veteran underwent a VA examination in March 2010. The examiner described a history of abscess at the C5-C6 level following a laryngeal procedure that required a fusion and iliac bone graft. Imaging tests revealed posterior spinal fusion with screws extending from C5 to T1 and satisfactory C6-C7 fusion. The examiner provided an opinion stating that the current condition was completely unrelated to an injury in service in 1976 and that the current condition was the result of infection in the cervical spine requiring decompression and fusion. The Board has reviewed the voluminous evidence in this claim, but finds that the preponderance of the evidence is against the claim. While the record clearly shows an injury to the chin and tongue in 1976, it does not show that it resulted in any injury to the neck. Rather, the physical examination findings at the time of the injury included the notation that the Veteran had full range of head motion and no complaints of pain. Moreover, no cervical spine disability was found upon discharge from active military service. The Board has considered the June 2005 and July 2008 opinions that support the claim. However, in both opinions, the authors opine that the injury to the chin in service resulted in injury to the neck. They do not cite to any evidence in the service record that the injury resulted in a neck disability. A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). Therefore, because the opinions are based on an inaccurate or unsubstantiated reading of the record, and do not provide any rationale for the opinion, they are not afforded significant probative weight. By contrast, the December 2007 and March 2010 VA examiners both correctly observed that there was nothing in the service medical record describing any injury to the neck or evidence showing a cervical spine disability upon discharge from service. After examination of the Veteran, both examiner's concluded that his current cervical problems were unrelated to his service injury. The Board has also considered the VA and private medical evidence. That evidence does not include treatment for a cervical spine disability until many years following service discharge. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (Board may consider a prolonged period without medical complaint when deciding a claim). The evidence of record does not show arthritis of the spine within the first year following separation from service. 38 C.F.R. § 3.307 (2012). Finally, the Board has considered the Veteran's lay testimony. Here, his statements describing the severity of the injury in service are not consistent with the service medical records. Moreover, the Veteran has not provided evidence detailing continuity of symptoms since service. While he is competent to claim that he injured his neck in service, that claim made many years later in furtherance of a claim for benefits is outweighed by contemporaneous findings that did not find any neck injury. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for a cervical spine disorder. Because the preponderance of the evidence is against the Veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Partially Severed Tongue In August 2007, the Veteran filed a claim seeking entitlement to service connection for residuals of a partially severed tongue. He asserted that he injured his tongue after being struck by a crank when aboard the USS Constellation. The service medical records document an injury in September 1976 when the Veteran was struck on the chin, causing him to bite the left side of the tongue. The tongue laceration was closed with five sutures. There were no further complaints in service of any tongue disability. During the February 2009 hearing, the Veteran testified that following the injury his tongue was swollen and, for a two-month period, he had to drink food through a straw. He reported that currently he had no sensation to pain and had to be careful to not bite his tongue. VA outpatient treatment records do not reveal treatment for any tongue disability. In June 2009, the Board remanded this matter to afford the Veteran a VA examination to obtain evidence as to the nature and etiology of any current tongue disability. An examination was conducted in March 2010. At that time, the Veteran described the in-service injury but stated that he had no current tongue disability. Rather, he was unsure as to why he was being examined. A physical examination revealed no apparent abnormality. No scar tissue was noted. The examiner observed that the original injury healed and that no current disability existed. The Board has reviewed the evidence but finds that the preponderance of the evidence is against the claim. Here, while the evidence clearly documents an in-service injury which resulted in a tongue laceration, the weight of the probative evidence is against a finding that the tongue laceration in service resulted in a permanent disability or that the Veteran has any current tongue disability. While he has claimed a loss of sensation, none was found on clinical examination and he did not claim any loss of sensation at the examination of his tongue. A necessary element for establishing entitlement to service connection is the existence of a current disability. Degmetich v. Brown, 104 F.3d 1328 (1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Here, the Board finds it significant that upon VA examination, the Veteran was unable to identify any current tongue problems and that none were found on examination. Moreover, while the Veteran described some loss of sensation during the hearing before the undersigned, none of the VA treatment records describe any findings or treatment for a current tongue disability. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current disability of the tongue. Accordingly, in the absence of a current disability, the Board has no choice but to deny the claim. The preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a colon disability is denied. Service connection for a cervical spine disability is denied. Service connection for residuals of a partially severed tongue is denied. ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs