Citation Nr: 1304191 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 10-49 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for cardiovascular disease, status post coronary artery bypass graft, with murmur. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for arthritis of the upper extremities. 4. Entitlement to service connection for a disability manifested by right shoulder pain. 5. Entitlement to service connection for residuals of appendicitis with ruptured colon and excision of the colon, secondary to service-connected disability. 6. Entitlement to service connection for chronic back strain. 7. Entitlement to service connection for a disability manifested by chronic cervical strain. 8. Entitlement to total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty for more than 24 years, prior to his retirement in October 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for each disability at issue, and denied his claim for TDIU. During the hearing before the undersigned in November 2012, the Veteran withdrew his claims for service connection for voiding dysfunction and for residuals of a trauma to the jaw and neck. This decision, accordingly, is limited to the issues set forth on the cover page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for cardiovascular disease, hypertension, arthritis of the upper extremities, a disability manifested by right shoulder pain and chronic back strain, and the claim for TDIU 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. Degenerative changes of the cervical spine had their onset in service. 2. The Veteran has been granted service connection for degenerative changes of the cervical spine, gastroesophageal reflux disease, evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; bilateral sensorineural hearing loss and for scar below the chin, both evaluated as noncompensable. 3. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has residuals of appendicitis, to include a ruptured colon that are etiologically related to his service-connected disabilities, to include gastroesophageal reflux disease. CONCLUSIONS OF LAW 1. Degenerative changes of the cervical spine were incurred in active service. 38 U.S.C.A. §§ 1101, 11110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 2. Residuals of appendicitis with ruptured colon are not proximately due to, the result of, or aggravated by service-connected disability. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify a Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In any event, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). By letter dated September 2008, issued prior to the rating decision on appeal, the RO provided notice to the Veteran regarding what information and evidence were needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how the VA assigns a disability rating and an effective date, and the type of evidence which impacts such. Duty to Assist The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, private and VA medical records, service department medical records following service, the reports of VA examinations, and the Veteran's testimony at a hearing before the undersigned. 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. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A VA examination was conducted, and an opinion regarding the etiology of the Veteran's cervical spine disability has been obtained. The VA opinion was rendered by a medical professional who clinically evaluated the Veteran, and provided a factual foundation for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. The Board acknowledges the Veteran has not been afforded a VA medical examination to obtain an opinion regarding the etiology of the residuals of appendicitis. Based on the evidence in this case, the Board finds that an examination is not necessary. As is discussed in greater detail below, there has been no demonstration of a clinical relationship between the Veteran's service-connected gastroesophageal reflux disease and the residuals of appendicitis, so as to warrant a VA examination. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion occurs when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). As discussed above, the appellant was notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by submitting evidence and providing testimony. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of these matters. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post-service symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). I. Cervical spine Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. When examined in May 1966, prior to his retirement from service, it was indicated the Veteran had intermittent, infrequent pain in his neck that radiated to his right ear. It was noted no treatment had been sought or required, and that there were no complications or sequelae. A clinical evaluation of the spine on the retirement examination was normal. Service department medical records disclose the Veteran was seen in August 1968 and reported that he had experienced pain in his neck shooting up into thoracic occipital area since 1965. An examination was negative. X-rays of the cervical spine revealed slight narrowing of the fifth cervical disc with mild degenerative changes. It was stated the following month that the pain was probably secondary to arthritis. In a statement dated June 2010, a private physician noted the Veteran's duties involved heavy lifting. He summarized the Veteran's treatment at the service department facility in 1968, and added that X-rays in August 2008 demonstrated severe degenerative changes in the cervical spine. He opined the Veteran's neck problems are the direct result of the duties he performed in service. He added that the repeated traumas from his duties initiated the degenerative changes he currently experiences. A private physician asserted in November 2010 that the Veteran had been followed since 1995 for, among other disabilities, arthritis of the neck. The Veteran was afforded a VA examination of the spine in March 2011. He complained of neck pain, and stated it had its onset in 1968. He said it started in service when he engaged in sports and other military activities. He asserted it had been intermittent since, with remissions. The diagnosis was cervical spondylosis. The examiner stated he reviewed the service treatment records and VA records. He concluded the Veteran's current neck disability was caused by or a result of the neck pain with degenerative changes in service. He pointed out that X-rays in August 1968 showed degenerative changes. He noted the Veteran retired in October 1966. The examiner stated that degenerative changes in the spine that can be detected by X-rays usually have their onset several months to a year prior; thus, in this case somewhere in 1967 or the latter part of 1966, which would have been within one year of the Veteran's separation from service. He added that current X-rays of the cervical spine were compatible and consistent with the X-ray findings of 1968. While no abnormal findings regarding the cervical spine were documented in service, the Veteran did report on the retirement examination that he had neck pain. When he was seen in August 1968, he related he had been experiencing neck pain since 1965. The Board further notes that a medical opinion of record relates the Veteran's cervical spine disability to his service. Resolving reasonable doubt in the Veteran's favor, the Board concludes, therefore, that service connection is warranted for degenerative changes of the cervical spine. II. Residuals of appendicitis VA amended 38 C.F.R. § 3.310, the regulation concerning secondary service connection. The intent was to conform the regulation to Allen v. Brown, 7 Vet. App. 439 (1995), the United States Court of Appeals for Veterans Claims (Court) decision that clarified the circumstances under which a veteran may be compensated for an increase in the severity of an otherwise nonservice-connected condition caused by aggravation from a service-connected condition. Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." The former paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. On VA examination in May 2010, the Veteran reported he had a colon resection and appendectomy in 2000. The Veteran argues service connection is warranted for residuals of appendicitis with ruptured colon, and alleges it is secondary to his service-connected gastroesophageal reflux disease. He has not provided any evidence of a relationship between these disorders. The Board acknowledges the assertions of the Veteran that the residuals of an appendectomy, to include a ruptured colon, are related to his service-connected gastroesophageal reflux disease. As a lay person, however, he is not competent to diagnose any such disability, or render an opinion as to its cause or etiology, as that requires medical expertise which he is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The evidence does not reflect that the Veteran currently possesses a recognized degree of medical knowledge that would render his opinions on medical diagnosis or causation competent. In the absence of any clinical evidence linking the Veteran's appendicitis to a service-connected disability, the Board concludes the preponderance of the evidence is against the claim for service connection. III. Additional considerations In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, except as where noted above, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for degenerative changes of the cervical spine is granted. Service connection for residuals of appendicitis with ruptured colon and excision of the colon on a secondary basis is denied. REMAND The Veteran also claims service connection is warranted for cardiovascular disease, hypertension, arthritis of the upper extremities, a disability manifested by right shoulder pain and chronic back strain. The service treatment records show that when he was seen in March 1942, it was noted that the Veteran had a murmur that was accentuated on exercise. An electrocardiogram on the retirement examination in May 1966 showed sinus bradycardia. VA outpatient treatment records disclose the Veteran was seen in September 1993, and a history of hypertension was noted. Blood pressure was 204/106. X-rays of the lumbar spine at a private facility in November 2008 demonstrated degenerative disc disease. In an October 2009 statement, a private physician related the Veteran had been a patient in his practice since 1985. He had long-standing hypertension and a heart murmur since he was in service. The physician added the Veteran eventually required heart surgery in 2001. In June 2010, a private physician stated that the Veteran's duties during service included climbing and heavy lifting. He maintained those duties required him to perform repetitive tasks with both hands, and that the Veteran began to, and continues to experience bilateral hand pain. He noted X-rays of the hands in August 2008 demonstrated joint destruction of the first metacarpophalangeal joint and osteophytes of the distal radius. The physician concluded that the duties performed by the Veteran involved extensive use of his hands and that the repetitive traumas initiated the changes that were now manifested as degenerative joint disease of the hands. A private physician related in November 2010 that the Veteran had been followed for various medical problems dating to 1995, including arthritis of the shoulders. He noted the joint deformity preexisted the initial presentation. During the hearing in November 2012, the Veteran testified that he had been receiving treatment at Fort Drum for many years. These records have not been associated with the claims folder. In light of the development requested in this case, the Veteran's claim for TDIU is deferred. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all treatment records from Fort Drum. 2. Schedule a VA cardiology examination and request the examiner provide an opinion concerning whether it is at least as likely as not that the Veteran's hypertension or cardiovascular disease is related to service. The rationale for any opinion should be set forth. The claims folder should be made available to the examiner in conjunction with the examination. 3. Schedule a VA orthopedic examination and request that the examiner provide an opinion concerning whether it is at least as likely as not that the Veteran has arthritis of the upper extremities, a disability manifested by right shoulder pain, or a chronic back strain that is related to service. The examiner should address the private physician's conclusion in June 2010 that the Veteran's arthritis of the hands is related to his in-service duties. The rationale for any opinion should be set forth. The claims folder should be made available to the examiner in conjunction with the examination. 4. Following completion of the above, the RO should review the evidence and determine whether the Veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs