Citation Nr: 1308843 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 06-24 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to a cervical spine disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to January 1979. This matter comes before the Board of veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Indianapolis, Indiana, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a cervical spine disorder and peripheral neuropathy of the bilateral upper extremities. The Board remanded the case in August 2010 for further development. The requested development has been substantially completed. FINDINGS OF FACT 1. The Veteran is presumed sound upon entry into active service and there is no clear and unmistakable evidence to show that a cervical spine disorder existed prior to service. 2. The competent and credible evidence of record fails to establish that the Veteran's congenital cervical spine defect was subject to a superimposed disease or injury during service nor that a cervical spine disorder had its onset in service, within one year of service discharge, or is otherwise related to the service. 3. The competent and credible evidence of record fails to establish that peripheral neuropathy of bilateral upper extremities had its onset in service, within one year of service discharge, was otherwise related to service, or was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Service connection for cervical spine disorder was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. Service connection for peripheral neuropathy of bilateral upper extremities is not due to or aggravated by service, nor is it due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The duty to notify was satisfied by way of letters sent to the Veteran in January 2004 and August 2007. The letters advised the Veteran of the information required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also informed of how VA determined disability rating and effective dates. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. The provided notice complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist a veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records, private treatment records, and VA treatment records with the claims file. No outstanding evidence has been identified. The Veteran was also afforded VA examinations in connection with the claims. The Veteran underwent a VA examination in January 2004. In order to allow the examiner a chance to evaluate the claims folder in connection with the examination of the Veteran, the Veteran also underwent additional VA examination in September 2010. The provided examination reports are thorough and adequate upon which to base a decision. The examiners interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to decide the claims. Finally, the Board observes that the Veteran reported that he was receiving Social Security disability benefits. The RO attempted to obtain those records from the Social Security Administration (SSA), but in September 2007, a negative reply was received. The SSA indicated that the Veteran's records could not be located. Thus, further efforts in this regard would be futile. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.App. 183 (2002). Service Connection Claims Under the relevant laws and regulations, 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, 1131 (West 2002). Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (2012). However, service connection may be granted for defects of congenital, developmental or familial origin if the defect was subject to a superimposed disease or injury during service. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45711 (1990). Service connection may be established when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id at (b)(1). Prior provisions of 38 C.F.R. § 3.304(b) only required a finding that clear and unmistakable evidence showed that an injury or disease existed prior to service in order to rebut the presumption of soundness. However, the provisions of 38 C.F.R. § 3.304(b) were invalidated as being inconsistent with 38 U.S.C.A. § 1111. See generally Cotant v. Principi, 17 Vet. App. 116 (2003), Jordan v. Principi, 17 Vet. App. 261 (2003), Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), VAOPGCPREC 3-2003 (July 16, 2003). Pursuant to these developments, it is now clear that in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. See 38 C.F.R. § 3.304 (b). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). VA must show by clear and unmistakable evidence that the pre-existing disorder was not aggravated during service. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Although VA's General Counsel has determined that the definition of "aggravation" used in 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306 does not apply in determining whether the presumption of soundness has been rebutted, the statute and regulation do not otherwise provide any definition of "aggravation" to be applied in making that determination. The word "aggravate" is defined as "to make worse." Webster's II New College Dictionary (1999). If the Board finds that there is clear and unmistakable evidence that a cervical spine disorder preexisted service, the Board must then determine whether there is clear and unmistakable evidence that the preexisting cervical spine disorder was not "made worse" or aggravated in service such that the presumption of soundness has been rebutted. Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet.App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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). Lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a) (2012). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). Cervical Spine Disorder The Veteran asserts that he had a football injury to his neck prior to service while playing high school football. He claims that while in service, he had aggravated neck pain described as an irritated nerve of the cervical spine which was further aggravated in a fall after service. He maintains that he first had further aggravation in service. Service treatment records showed the Veteran received an entrance physical examination in October 2004. His neck and spine were noted as normal on clinical evaluation. Upon entrance in January 1975, no disqualifying defects were found. In July 1975, the Veteran presented complaining of neck pain over one day. He related that he was hit (apparently involving the neck) while playing high school football. He described having a sharp pain in his neck while lifting heavy things. An impression of "possible irritated nerve c-spine" was assessed at the time. The Veteran underwent a separation examination in January 1979. His neck and spine were noted to be normal on clinical evaluation. After service, records show the Veteran was hospitalized at St. Vincent Hospital and Health Care Center in December 1980 after a work injury when he fell from the wing of an airplane. He had one episode of loss of consciousness. He was admitted to the hospital for a study of shoulder and arm pain and headaches, with a change of personality and dizzy spells and some difficulty in memory. A complete neurological work-up was performed. A computerized tomography (CT) scan was normal. X-rays of his neck in flexion and extension showed a congenital effusion of C5-6 vertebral bodies. Cervical myelogram showed a normal size canal with a normal cord and prominent borderline or borderline prominent root on the right at C4-5. He was later seen in consultation with another doctor that felt that his problem was cervical sprain superimposed on his congenital anomalies. He was dismissed from the hospital to outpatient observation prior to returning to work. Other findings post service have shown ongoing treatment for cervical spine complaints. Among these are X-ray studies indicating congenital changes with blocked vertebrae, missing right lamina at C5-6, and moderately advanced degenerative changes at C6-7 (VA June 2004 progress note). A magnetic resonance imaging (MRI) scan has shown congenital fusion of C5-C6, degenerative changes worst at C3-C4 and C4-C5 (Indiana University July 2006). Pursuant to the Board's remand of August 2010, the Veteran underwent a VA examination in September 2010. It was noted that he had electromyography (EMG) and CT studies of the cervical spine. He related that he had neck pain for years and that the pain occurred after falling off of an airplane wing in October 1980. Prior to that time, he did not know that he had a congenital fusion of C5-6. Since its onset, his neck disorder had become progressively worse. There was no history of spine neoplasm. He was hospitalized at Wishard Hospital in October 1980 for a follow up after falling off the plane wing and at St. Vincent's Hospital in December 1980 for further assessment of the neck pain and a possible seizure. He also related that he had a concussion ("split helmets") while playing football in high school. There was a question of injury to the neck at that time and he felt tingling throughout his body. He related a second spine trauma as the injury he sustained in October 1980 when he fell off of a plane while fueling it. He injured his neck and his head. The diagnosis was cervical degenerative arthritis with osteophytes. The effects of the problems were decreased mobility, problems with lifting and carrying, weakness or fatigue, and decreased strength in the upper extremities. The examiner found that the Veteran had a diagnosis of congenital C5-6 fusion, that he reported a history of a neck injury playing high school football, that the record indicated he was seen one time in service in 1975 for neck pain with a reported normal examination but possible nerve root irritation. It was noted there were no further reports of neck pain in service. Work-up for further neck complaints included an EMG in 2001 that was normal. An EMG in 2004 revealed possible bilateral C5-6 radiculopathy. MRI of the cervical spine in July 2006 revealed multilevel changes with degenerative changes that worse at C3-4 and C4-5 as well as a congenital fusion. It was noted he now has a diagnosis of cervical degenerative disc disease with cervical spine radiculopathy. The examiner cited medical literature which indicated that the mechanisms underlying cervical degenerative discs were complex and multifactorial and that genetics, aging, and attrition may all play an important role and lead to structural changes that may change spinal stability and may compromise neural function. The pathomechanics under axial and radicular pain it was noted were still not completely clear. It was the examiner's opinion from both review of the literature and medical experience that congenital fusion was most likely the primary cause of the degenerative changes seen in the Veteran, with the secondary cause being the fall he sustained from the airplane in 1980. The examiner stated that the neck pain the Veteran complained of on one occasion in service appeared to have been unrelated and short lived. Based upon the evidence of record, the Board finds the Veteran is presumed sound upon entry into active service and that there is no clear and unmistakable evidence to show that a cervical spine disorder existed prior to service. The competent and credible evidence of record, however, fails to establish that the Veteran's congenital cervical spine defect was subject to a superimposed disease or injury during service nor that a cervical spine disorder had its onset in service, within one year of service discharge, or is otherwise related to the service. The medical evidence shows that the Veteran's spine and musculoskeletal area were clinically evaluated as normal at service enlistment examination in October 1974. Upon entrance in January 1975, no disqualifying defects were found. Therefore, since the medical evidence of record at service entrance indicated that the Veteran's neck was clinically evaluated as normal and there was no evidence of residual effects of any neck injury on entrance examination, the presumption of soundness has not been rebutted. Although the Veteran is found to have been in sound condition on service entrance and had neck complaints during service, the medical evidence of record demonstrates that his neck pain on only one occasion in service in July 1975 was an acute or short-lived symptom manifestation. A "possible" irritated nerve of the cervical spine was noted in service; however, at his service discharge in January 1979, his spine and musculoskeletal area were clinically evaluated as normal. Not until more than one year later, when he fell off of an airplane wing while fueling the airplane is he shown to have had a chronic neck disorder. At that time, it was discovered that he had a congenital fusion of the cervical spine. While in service any cervical spine pain he had was acute and transitory and resolved without residual disability. According to the September 2010VA examiner after an examination and review of the medical evidence, that the Veteran's congenital fusion of the cervical spine was the primary cause of the degenerative changes seen, with the secondary cause coming from his fall in 1980 after his separation from service. It was noted that his singular complaint of neck pain during service was unrelated and short-lived. Other than the Veteran's own statements, the competent and credible evidence is against the finding that a cervical spine disorder is related to service. As discussed, the medical evidence associated with the claims folder does not show evidence of a chronic cervical spine disorder at service discharge or within a year of service discharge. There is no evidence of a cervical spine disorder until he fell off of the airplane wing in October 1980. The fact remains that, aside from the Veteran's personal statement indicating that he injured himself playing football prior to service and his one complaint of neck pain in service, there is no evidence documenting that he had a chronic cervical spine disorder until after he sustained the injury in 1980. At that time, medical evidence showed he injured himself from the fall and that he also had a congenital cervical fusion. None of the evidence showed that the Veteran's cervical spine disorder had its onset during service nor that he had sustained any injury or disease in service that was superimposed on his congenital cervical fusion. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, 451 F.3d 1331. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Board finds the Veteran's reported history of continued symptoms since active service is inconsistent with the other evidence of record. Consideration has been given to the Veteran's statements that he had a preexisting cervical spine disorder that bothered him in service and that was the same condition he had after service. However, the evidence shows that the Veteran was only treated once in service for neck pain, that a clinical evaluation upon separation examination revealed a normal spine, and that he sustained cervical spine injuries in a fall after service that resulted in the degenerative changes he now experiences with regard to his cervical spine. Accordingly, the Board finds the statements of the Veteran asserting in-service incurrence or continuity of symptomatology since service lack credibility and are without probative value. See, e.g. Madden, 125 F.3d 1477 (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Board further finds that opinions as to whether symptoms of a congenital defect were manifest or aggravated before or during service is a complex medical matter which requires specialized medical training. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board must determine whether the claimed disability is a type of disability for which a lay person is competent to provide etiology or nexus evidence). The weight of the competent evidence in this case does not attribute the Veteran's present cervical spine complaints to service, despite his contentions to the contrary. No medical professional has established a relationship between this disorder and active duty. There is no such medical evidence of record, and the Veteran has not indicated that any physician has associated his cervical spine complaints to his active service. Moreover, the September 2010 VA examination findings clearly associate his current cervical spine disorders to his congenital fusion and to his post-service 1980 fall from an airplane. Thus, since the Veteran was found to be of sound condition upon entrance onto service, had only one complaint in service of neck pain which was found by the September 2010 examiner to have been acute and transitory, and as the September 2010 examiner has found his cervical spine disorder was primarily caused by a congenital fusion and secondarily by a post-service fall, service connection is not warranted for a cervical spine disorder. The preponderance of the evidence is against the claim. Peripheral Neuropathy of the Bilateral Upper Extremities Service treatment records showed no findings, treatment, or diagnoses for peripheral neuropathy in service or within a year of his service discharge. The Veteran does not argue the contrary. Rather, he maintains that his peripheral neuropathy of the bilateral upper extremities is warranted strictly on a secondary basis. He alleges that his peripheral neuropathy disorder is due to his cervical spine disorder. Based on the evidence of record, the Board finds the competent and credible evidence of record fails to establish that peripheral neuropathy of bilateral upper extremities had its onset in service, within one year of service discharge, was otherwise related to service, or was caused or aggravated by a service-connected disability. In order to establish service connection for a claimed disability on a secondary basis, there must be: (1) medical evidence of a current disability; (2) a service-connected disability; and (3) evidence of a nexus between the service- connected disease or injury and the current disability. Wallin v. West, 11 Vet.App. 509, 512 (1998). With respect to Wallin element (1), the Veteran does have bilateral carpal tunnel syndrome. The Veteran claims this disorder developed secondary to his cervical spine disorder. Not only has the September 2010 VA examiner indicated that the Veteran's bilateral carpal tunnel syndrome is not related to his cervical spine disorder and is more related to his genetics and body habitus, service connection is not established for a cervical spine disorder. In this regard, neither Wallin elements 2 nor 3 have been met. Therefore, entitlement to service-connected benefits for peripheral neuropathy of the bilateral upper extremities (bilateral carpal tunnel syndrome) must be denied. ORDER Service connection for a cervical spine disorder is denied. Service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to a cervical spine disorder, is denied. ____________________________________________ T. L. DOUGLAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs