Citation Nr: 1305803 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 10-10 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for cervical spondylosis, status post cervical laminectomy. 2. Entitlement to service connection for pain, right and left arm, including as secondary to cervical spondylosis, status post cervical laminectomy. 3. Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from September 1940 to October 1960. These claims come before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision of the Department of Veterans Affairs Regional Office (RO) in Huntington, West Virginia. The RO in Roanoke, Virginia certified these claims to the Board for appellate review. In a VA Form 9 (Appeal to Board of Veterans' Appeals) dated April 2010, the Veteran requested a hearing before the Board in Washington, D.C. By letter dated March 2012, the RO informed the Veteran of the date of his scheduled hearing, but on that date, he failed to report. Given that he did not request a timely postponement of the hearing, the Board deems his hearing request withdrawn pursuant to 38 C.F.R. § 20.702(d) (2012). A review of the Virtual VA paperless claims processing system reveals no additional, pertinent documents for consideration in support of these claims. 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 issue of service connection for hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Cervical spondylosis, status post cervical laminectomy, is not related to the Veteran's active service. 2. Arthritis of the cervical spine did not manifest to a compensable degree within one year of the Veteran's discharge from active service. 3. Pain, right and left arm, is secondary to cervical spondylosis, status post cervical laminectomy, but is not related to the Veteran's active service or a service-connected disability. CONCLUSIONS OF LAW 1. Cervical spondylosis, status post cervical laminectomy, was not incurred in or aggravated by service and is not presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307. 3.309 (2012). 2. Pain, right and left arm, was not incurred in or aggravated by active service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 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(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). Prior to adjudicating these claims, in July 2008, the RO provided the Veteran VCAA notice. This timely letter satisfies the content requirements noted above. The RO notified the Veteran of the evidence needed to substantiate his claims, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was developing his claims pursuant to that duty. The RO also provided the Veteran all necessary information on disability ratings and effective dates and identified the evidence it had requested and/or received in support of the Veteran's claims and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identified its source(s), but that it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. B. Duty to Assist VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The RO satisfied its duty to assist the Veteran in the development of his claims by securing and associating with the claims file all documents the Veteran identified as being pertinent to his claims, including service treatment and personnel records, information on the USS Turner, and post-service VA and private treatment records In an Informal Hearing Presentation dated January 2013, the Veteran's representative points out that the Veteran was seen during service in 1971 at the Portsmouth Naval Hospital, but that there are no records of treatment from that facility dated prior to 1971 or from 1971, after the treatment visit, to 1988. He explains that, "[w]hile we don't know for certain, it is quite likely that he was treated there earlier than 1971 because his 1969 quadrennial exam indicates that he was living in Portsmouth and the exam was conducted at the Portsmouth Naval Hospital as was the 1964 exam." The representative argues that, given this, the Board should remand these claims with instructions to obtain any treatment records, including those retired, from the Portsmouth Naval Hospital, which are dated from the time of the Veteran's retirement from service to the 1980s. In the Informal Hearing Presentation, the representative also points out that the Veteran's service treatment records refer to a low back injury occurring two years prior to a May 1969 audiological examination. He argues that the Board should remand these claims to the RO for the purpose of obtaining records of this injury and all other post-service treatment. In the absence of additional rationale for remanding these claims, the representative's request essentially constitutes a demand for a fishing expedition. First, the claims at issue do not involve the Veteran's low back; therefore, remanding for records of low back treatment, particularly those dated seven years after discharge from service, would be unhelpful. The Veteran does not claim that, when he injured his low back in approximately 1967, he also injured his neck or arms. Second, contrary to the representative's assertions, the claims file includes other records of treatment from Portsmouth Naval Hospital, dated in the 1940s. The fact that the Veteran lived in Portsmouth and was seen at the Portsmouth Naval Hospital in the 1940s, 1964 and 1969, for examinations, and in 1971, 1988 and 1989 for treatment, does not mean he was seen there on other dates for any of the conditions at issue in this appeal. He has not so asserted. In any event, it seems logical that if he were seen there on other dates for the conditions at issue in this appeal, he would have submitted records of that treatment when he submitted those dated in the 1980s in support of these claims. It also seems logical that if he were seen there on other dates, records of that treatment would be included with the 1940s, 1964 and 1969 reports of examinations, which are part of his service record. The RO also afforded the Veteran a VA examination of his neck and upper extremities, during which an examiner addressed the etiology of the Veteran's cervical spine and arm disabilities. Since then, in the Informal Hearing Presentation, the representative asserts that the report of the examination is inadequate to decide the neck and bilateral arm claims. Citing Dalton v. Nicholson, 21 Vet. App. 23 (2001) (examination inadequate where the examiner did not comment on veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion), he contends that, because the examiner provided a negative opinion based on a lack of documentation in the service treatment records, his opinion should not be found probative. The Board disagrees and finds the facts of this case distinguishable from those in Dalton. Here, the VA examiner contemplated the Veteran's reported history of an in-service injury, when he was thrown against a bulkhead, and a neck disability for 60 years (see first page of report, history section). He nonetheless ruled out a relationship between the Veteran's current cervical spine and bilateral arm disability on multiple bases, including that, during an examination in 1969, years after the alleged injury and discharge from service, the Veteran did not report any neck complaints. This is so despite the fact that, during the same examination, he reported a low back injury. Thus, the Board finds that the duty to assist has been satisfied, and that an additional VA examination is not warranted. II. Analysis The Veteran seeks grants of service connection for a cervical spine disability and a disability manifested by pain in both arms. According to his application for compensation and written statements he submitted during the course of this appeal, he sustained injuries during service in World War II in January 1944, when off the Coast of New Jersey, his ship, the USS Turner, sunk after being hit by a torpedo. He believes the conditions at issue in this appeal developed secondary to the explosion, which threw him across the ship against a bulkhead, caused ringing and bleeding in his ears and rendered him unconscious. Allegedly, this injury necessitated treatment. The Veteran claims that he was one of only 50 survivors and that his physician told him that the explosion possibly caused his arm and neck pain. He asserts that the arm pain is secondary to or part of his cervical spine disability. According to a medical history reported during an October 2009 VA examination, the Veteran has had pain in his neck and arms for 60 years. He asks that reasonable doubt be resolved in his favor. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d) (2012). To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). To establish continuity after discharge, the evidence must demonstrate the following: (1) condition "noted" during service; (2) 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. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Id. at 498 (holding that, on the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a) (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may be presumed for certain chronic conditions such as arthritis if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a degree of 10 percent within one year of the date of discharge. 38 U.S.C.A. §§ 1101, 1112(a), 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Post-service medical documents, including records from the Portsmouth Naval Medical Center dated since 2005, an April 2008 letter from Tyler Warkentien, M.D., VA treatment records dated since 2008, and a report of VA examination conducted in October 2009, the Veteran currently has disabilities of the cervical spine and bilateral arms, variously diagnosed, including as cervical spondylosis, with stenosis and myelopathy, peripheral nerve disease, peripheral neuropathy, degenerative disc disease and joint disease of the cervical spine with secondary radiculopathy, and nerve root and plexus disorder. The question is thus whether these conditions are related to the Veteran's active service, or in the case of the arthritis, whether it manifested to a compensable degree within a year of his discharge from active service. The Veteran served on active duty from September 1940 to October 1960, including on the USS Turner in January 1944. As alleged, during that month, the destroyer suffered a series of shattering internal explosions while anchored, the last of which caused it to capsize and sink. The cause of the explosions is unclear. As alleged, months before, in October 1943, the destroyer had come in contact with and heavily damaged a German submarine. During contact, the crewmen fired depth charges at the submarine, the shock of which caused the destroyer to lose power temporarily. Professionals have attributed the fatal explosions in January 1944 to an accidental detonation of munitions, not a German torpedo. Nearby ships picked up the survivors of the sunken destroyer, who were transferred to a hospital in Sandy Hook, New Jersey. Given the violent nature of this incident, the Board accepts as true that the explosions that occurred prior to the destroyer sinking propelled the Veteran across the ship and into a bulkhead, causing injury, exact type unknown. Thereafter, the Veteran developed a nervous condition and, in November 1945, was placed on the sick list and transferred to a hospital in Texas. By December 1945, he was found fit for limited duty. By September 1946, symptoms of the Veteran's emotional disturbances had subsided and the Veteran was found fit for full duty. During multiple observations by a Board of Medical Survey from 1945 to 1946, the Veteran never mentioned any physical injuries that occurred the night of the explosions or discussed his neck or arms. In September 1946, he mentioned a dull, aching sensation in his low back, but no other musculoskeletal complaints. During the remainder of service, he did not report or receive treatment for cervical spine or upper extremity complaints (burned his right arm in 1952, but never complained of any musculoskeletal or nerve problems there) and no medical professional noted any neck or arm abnormalities. Rather, during September 1946, September 1950, November 1955 and October 1960 examinations, examiner noted a normal spine, neck and extremities. Following discharge, during a Fleet Reserve quadrennial examination conducted in October 1964, the Veteran reported that he had had back trouble - a strained muscle - but did not mention any neck or upper extremity problems. He denied having had swollen or painful joints, bone, joint or other deformity, and a painful or trick shoulder or elbow. The examiner noted that the Veteran had had a low back strain six weeks ago. He also noted normal clinical evaluations of the Veteran's spine and upper extremities. During a Fleet Reserve quadrennial examination conducted in May 1969, the Veteran reported that he had sustained a low back injury two years ago. Again, he did not mention his neck or arms. The examiner noted residual low back pain, but normal clinical evaluations of the neck and upper extremities. The Veteran first mentioned arm problems in June 1971. He presented with musculoskeletal complaints, including a three-week history of aching in the left upper arm. He refrained from reporting an in-service neck or arm injury and specifically noted that there was no history of antecedent trauma. He first mentioned cervical spine or neck problems the next month, in July 1971. A physician diagnosed cervical spondylosis and referred him to physical therapy. In December 1988, the Veteran presented with a report of left-sided neck pain of five days duration. He indicated that he had been in a motor vehicle accident nine days earlier, that he didn't initially experience any pain, and that it developed three days after the accident. X-rays showed multiple abnormalities, including degenerative joint disease and disc space narrowing. The treatment provider diagnosed a neck sprain and arthritis of the cervical spine. Since then, the Veteran has continued to receive treatment, including surgery in 2008, for a cervical spine disability, variously diagnosed as noted above, and right and left arm complaints, which medical professionals have attributed to the cervical spine disability. During treatment visits, the Veteran did not report any in-service trauma or specifically denied trauma generally (January and October 2006) and no medical professional related the cervical spine or bilateral arm disability to the Veteran's active service, including the in-service injury as described. Two medical professionals have addressed the etiology of the Veteran's cervical spine and bilateral arm disabilities. In a letter dated April 2008, Dr. Warkentien, the Veteran's primary care physician, found the Veteran's neck and left arm symptoms at least as likely as not service connected. He explained that he had reviewed the Veteran's prior medical records and personal history and noticed that cervical spine and left arm complaints dated back to at least 1988, and likely as far back as 1971. He indicated that, whether or not the complaints related specifically to the 1944 explosion aboard the USS Turner would be too difficult to tell, but that it was possible. In a report of VA examination conducted in October 2009, a VA examiner offered an unfavorable opinion in support of these claims by ruling out a relationship between the Veteran's cervical spine spondylosis and stenosis and the Veteran's service. Initially he indicated that he could not say definitively without speculation that the spine disability and service were related, but then subsequently concluded that without documentation of a cervical condition during service, he could only conclude that the current condition was less likely than not related to the Veteran's military service. He based his opinion on a review of the claims file and the Veteran's reported medical and service history, which included commentary on the in-service injury aboard the USS Turner, the absence of documentation of a neck complaint in the service treatment records, the fact that on his Fleet Reserve quadrennial examination conducted in 1969, there is no documentation of a neck complaint, and because in 1971, eleven years after discharge, cervical spondylosis is first mentioned. Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions. Provided these opinions include adequate statements of reasons or bases, the Board may favor one opinion over another. Wray v. Brown, 7 Vet. App. 488 (1995). An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). An examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not constitute competent medical evidence merely because the transcriber is a health care professional, see LeShore v. Brown, 8 Vet. App. 406,409 (1995), and a medical professional is not competent to opine as to matters outside the scope of his expertise. Id (citing Layno v. Brown, 6 Vet. App. 465, 469 (1994)). A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). A medical opinion is inadequate when unsupported by clinical evidence, see Black v. Brown, 5 Vet. App. 177, 180 (1995), and a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458,461 (1993). In this case, the Board assigns little weight to Dr. Warkentien's opinion. Although it is probative on the matter of when the cervical spine and left arm disabilities initially manifested (as early as 1971), it is not probative on the matter of whether it is related to the Veteran's 1940 to 1960 active service. Dr. Warkentien's opinion, which utilizes the words "is possible", is speculative. Moreover, although he refers to treatment records to support a finding that the disabilities initially manifested in 1971, he provides no rationale to support his speculative finding that the disabilities are related to the in-service explosions. The Board accepts that these disabilities initially manifested in 1971 as there is clear medical evidence supporting such a finding. The more relevant question is whether it is due to the 1944 injury, as reported. The VA examiner, who, alone, addresses this matter has found otherwise and the Board assigns his finding in this regard full weight. It is based on a review of the claims file and an accurate accounting of the Veteran's service history and in-service and Fleet Reserve treatment records. As well, it is supported by well-reasoned rationale. If the Veteran had sustained an injury to his neck and arms during the in-service explosions, it seems likely that he would have reported it closer in time to the explosions. After all, he reported another injury during that time frame, one affecting his low back. Instead, he waited until 1971, close to three decades after the incident to report neck and arm complaints and, at that time, denied an antecedent history of trauma. The Veteran would have better recall of such trauma in 1971 than he would in 2008, more than six decades after it occurred. There is no evidence in the claims file suggesting that the Board should question the VA examiner's credibility. His opinion is thus competent and credible on the question of whether cervical spine and bilateral arm disabilities are related to the Veteran's active service. The Veteran's recent assertions represent the only evidence of record linking his cervical spine and bilateral arm disabilities to active service. The Veteran is competent to report and describe the nature of neck and arm pain he has experienced throughout the years as pain is a condition that is capable of lay observation. However, the Board finds his recent assertions in this regard not credible. As previously indicated, they conflict with his medical and service histories reported from 1971 to the 2000s. In any event, the Veteran does not possess a recognized degree of medical knowledge to link the pain to his active service or to a service-connected disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is not competent to offer an opinion regarding a medical question when that question may not be resolved through lay observation). In the absence of competent and credible evidence of a nexus between the Veteran's cervical spine and bilateral arm disabilities and his active service, the Board concludes that such conditions were not incurred in or aggravated by such service and, in the case of the bilateral arm disability, is not proximately due to or the result of a service-connected disability. With regard to the Veteran's cervical spine arthritis, first diagnosed in 1988, decades after active service, the Board further concludes that the condition may not be presumed to have been incurred in service. A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA. VA is responsible for considering all such evidence, lay and medical. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the evidence is not in relative equipoise. Rather, the preponderance of the evidence is against each claim. The benefit-of-the-doubt rule is thus not for application. ORDER Service connection for cervical spondylosis, status post cervical laminectomy, is denied. Service connection for pain, right and left arm, including as secondary to cervical spondylosis, status post cervical laminectomy, is denied. REMAND In his June 2008 claim, the Veteran stated that he had hearing loss which began in June 1943. As noted above, he contends that he sustained injuries during service in World War II in January 1944, when off the Coast of New Jersey, his ship, the USS Turner, sunk after being hit by a torpedo. He believes that his hearing loss developed secondary to the explosion, which threw him across the ship against a bulkhead, caused ringing and bleeding in his ears and rendered him unconscious. In light of the foregoing, the Veteran should be afforded a VA examination on remand to determine whether he has a current hearing loss disability related to his active service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination. The claims file must be made available to, and reviewed by, the examiner. Appropriate testing, including a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, should be conducted. The results of puretone threshold testing for 500, 1000, 2000, 3000, and 4000 Hertz and speech recognition testing using the Maryland CNC test are to be reported. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed hearing loss had its clinical onset during active service or is related to any in-service disease, event, or injury, to include any noise exposure and/or other injury. In providing this opinion, the examiner should consider the Veteran's statement that his ship, the USS Turner, sunk after being hit by a torpedo. Secondary to the explosion, the Veteran was reportedly thrown across the ship against a bulkhead, causing ringing and bleeding in his ears and rendering him unconscious The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 3. Finally, readjudicate the claim on appeal. If the benefit remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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). ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs