Citation Nr: 1309348 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 05-39 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for lumbar spine disability. 2. Entitlement to service connection for cervical spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active duty service from October 1974 to October 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A Board hearing at the RO was held in September 2008. The Board previously remanded these issues for further development in February 2009, July 2010 and August 2012. A total rating based on individual unemployability due to service-connected disability has been assigned, effective from December 2010. FINDINGS OF FACT 1. A lumbar spine disability was not manifested in service, and is not shown to be related to the Veteran's service, or to have been caused or aggravated by a service-connected disability. 2. A cervical spine disability was not manifested in service, and is not shown to be related to the Veteran's service, or to have been caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Lumbar spine disability was not incurred in or aggravated by the Veteran's active duty service, nor is it secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. Cervical spine disability was not incurred in or aggravated by the Veteran's active duty service, nor is it secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Duty to Notify After reviewing the claims folder, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. In a letter sent in August 2004, the claimant was informed of the information and evidence necessary to warrant entitlement to service connection. Moreover, in the letter, the appellant was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In the instant case, a March 2006 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims and is not prejudiced by any technical notice deficiency in the course of his appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). These facts notwithstanding, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations with respect to the claims on appeal. The Veteran's service treatment records (STRs) are associated with the claims file. All available pertinent records, in-service and VA, have been obtained. A review of Virtual VA (VA's electronic database storage) found no additional pertinent information or evidence. The Veteran was afforded VA joint/spine examinations in September 2004, October 2010, and September 2012. The Board notes that the September 2012 VA examination was conducted pursuant to the August 2012 Board remand. That examination report substantially complies with the directives of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to adjudicate the claims, and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the Veteran as relevant to the issue adjudicated herein. II. Legal Criteria The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Briefly, the legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability which is service connected; and (3) competent evidence of a nexus between the two. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: A layperson is competent to identify the medical condition; the layperson is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. Factual Background At the outset, the Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran contends that he has lumbar and cervical spine disabilities secondary to his service-connected bilateral knee disability. Specifically he asserts that his claimed spine disabilities stem from "misalignment, wear and tear" caused by service-connected disabilities. In addition, the Veteran contends that his service-connected depressive disorder may have caused or aggravated his lumbar and cervical spine disabilities. He does not contend that either disability was manifested in service and persisted. In a July 1976 STR, the Veteran complained of vomiting, fever and pain in the back and lungs. There was no diagnosis rendered. STRs are otherwise silent regarding any disorder of the back (lumbar) and cervical spine. On September 1976 service separation medical history report, the Veteran reported that he did not have nor ever had recurrent back pain. Postservice in June 1981 the Veteran was examined by VA and there was no mention of a spine disability. The earliest report of any postservice complaints of symptoms associated with a lumbar spine disability are noted on an August 1997 VA outpatient clinic note, whereas the Veteran complained of low back pain and left knee pain. As for the cervical spine, the earliest mention of symptomatology associated with the cervical spine appears to be in early 2004, as shown in an April 2004 MRI (magnetic resonance imaging) report. Hence, service connection for the claimed disabilities on the basis that they became manifest in service, and persisted, is not warranted. The Veteran's theory of entitlement to the benefits sought is primarily one of secondary service connection. What is necessary to substantiate a secondary service connection theory of entitlement for the claimed disabilities is there must be competent evidence that they were caused or aggravated by his service-connected disability of the knees and/or by his service-connected depressive disorder disability. Service connection has been established for residuals of left (effective from April 1991) and right (effective from June 2004) total knee arthroplasty (formerly post operative desiccans with chondromalacia), and depressive disorder, not otherwise specified associated with residuals of left total knee arthroplasty (formerly post operative desiccans with chondromalacia), effective from September 2008. The pertinent evidence of record includes a July 2001 x-rays of the lumbosacral spine, which shows normal height of the lumbar vertebrae with anterior spurs noted at L4-5. The pedicles were intact and there was suspicion of radiolucency at the spinous process of L5, possibly due to positioning. X-rays taken in August 2001 showed no significant abnormality of the lumbar spine. There was minimal anterior marginal lipping in the endplates of the body of L4. Visible spine and SI joints were otherwise within normal limits. The disc spaces maintain normal and proper disc height. On August 2001 VA primary care intake report, the Veteran's complaints of chronic back and knee problems were noted. Physical examination of the neck revealed it was supple with no adenopathy or thyroid enlargement. The assessment, in pertinent part, was arthritis and back pain. An MRI of the lumbar and cervical spine was taken in April 2004 upon the Veteran's complaints of radicular pain down the leg, numbness down the left leg and into both arms. It showed significant neural foraminal stenosis on the right at L5-S1 secondary to degenerative facet hypertrophy, right paracentral disc bulge, and neural foraminal narrowing on the right at C5-6 secondary to a right paracentral disc osteophyte complex. In June 2004 the Veteran filed claims for service connection for lumbar and cervical spine disabilities secondary to his service-connected left knee. In September 2004, he was afforded VA joints examination. At the time of the examination, he complained of problems with his lumbar and cervical spine. He reported that he was being treated at a VA medical center for his knees, hip and back. He stated that he worked as a driver until about 2000 and has been unable to work because of his present difficulty. He wears bilateral knee braces and used a cane up until three months ago. At that time he was given a walker; before that he used a cane for many years. The examiner noted that he was asked to provide an opinion on whether the Veteran's right knee, left hip, lumbar spine and cervical spine are related to his left knee. He stated that the Veteran has had x-rays of all of those areas (with magnetic images present of the lumbar spine and the cervical spine) showing degenerative disc disease present in those areas. He opined that the Veteran has the tendency to develop severe degenerative arthritic problems in many joints; therefore his problem in all other joints, such that his cervical and lumbar spine, is related to the degenerative process and aging process, and not as a complication from his left knee injury while in the service. The examiner stated that MRIs of the cervical and lumbar spine showed degenerative joint disease. The Veteran has functional impairment of no squatting, climbing, and no prolonged standing and walking more than an hour without a rest; he wears braces, and uses a walker. In his January 2005 notice of disagreement, the Veteran noted that the degenerative processes in which the claimed disabilities continue to impede his life are due to the erosion of bones and joints caused by the skeletal misalignment his body has to endure to compensate for his left knee disability." He noted, essentially, that while age may play a role with the claimed disabilities, it is more likely than not that such disabilities would not be as severe were it not for his left knee disability. X-rays of the lumbosacral spine in May 2005 showed no evidence of fracture or spondylolisthesis. The disc spaces were well maintained; no significant arthritic changes were seen. The impression was normal lumbosacral spine series. MRI of the lumbar spine in November 2006 showed normal alignment. There was mild lumbar spondylosis which was most pronounced at L5-S1, where there is right neural foraminal moderate narrowing secondary to broad-based disc protrusion, which likely causes impingement of the right L5 nerve root. In May 2007 the Veteran was referred for an electrodiagnostic evaluation of the bilateral upper extremities for cervical radiculopathy/cervical spinal stenosis. The impression was abnormal study of the bilateral upper extremities. On July 2007 the Veteran had an MRI of the cervical spine. He reported a history of neck pain and intermittent numbness of both arms. The images showed the cervicomedullary junction was well positioned. There was no significant abnormal bone or cord signal seen. The impression was degenerative findings with foraminal narrowing. On September 2007 VA neurosurgery outpatient note, the Veteran was seen with complaints of neck and back pain. He reported that he has had back and neck pain for the past 10 to 15 years; there had been no neck or back trauma. The diagnosis was myofascial back pain. At his September 2008 Travel Board hearing, the Veteran testified that he has lower back and neck pain due to his left knee disability. He stated that he has problems sitting because his back starts to hurt within 5 to 10 minutes of sitting. Of record are two lay statements (dated in April 2009) that relate to the Veteran's claim of service connection for his lumbar spine disability. These statements include one from his wife, who noted that the Veteran experiences pain in his knee and back; and sometimes his back will "go out" and he is unable to move. The other lay statement is from the Veteran's friend who noted that the Veteran has struggled with a physical disability which has impaired him greatly. He had not been able to work so it has also financially stressed him; and since his condition has deteriorated, along with constant back and leg pain, an increased need for pain medication exists. On October 2010 VA spine examination, the Veteran reported a history of no hospitalizations or surgeries for his lower back and cervical spine disabilities. He stated that he had no specific injury to his neck or lower back while in the service. He stated that he feels that his service-connected knee disability is the cause of his claimed lumbar and cervical spine disabilities. He reported that his cervical spine does not limit his activities of daily living, but that his lumbar spine makes it difficult for him to perform chores around the house secondary to pain in his lower back. He has difficulty standing at the kitchen counter to cook and clean. He stated that he is also unable to mow his grass secondary to pain in his lower back. Following examination, the diagnoses were degenerative disk disease of the cervical and lumbar spine. The examiner opined that he could not resolve the issues of whether current lumbar and cervical spine disabilities were either caused by or aggravated by the service-connected knee disability without resorting to mere speculation. His rationale was that there is no medical literature stating that degenerative knee disease will result in lumbar or cervical spine degenerative disease. In further support of his claims, the Veteran submitted an Internet article entitled "The Link Between Depression and Physical Symptoms" by Madhukar H. Trivedi, M.D. The article states that physical symptoms are common in depression. Such symptoms include chronic joint pain, and back pain. The worse the painful physical symptoms, the more severe the depression. Research has shown that physical symptom improvement was correlated with the improvement of other depression symptoms, which suggested that the patient's ability to achieve depression remission may be directed related to the reduction of painful physical symptoms. On August 2012, the Board remanded the Veteran's claims for another VA examination, which was conducted in September 2012. During the examination, the Veteran reported that after separation from active duty he worked in construction/driving trucks from 1976 to 2007 when he went on disability for his knees and back. He stated that his pain limits his ability to sit for prolonged periods. He reported that his back is "completely out[.]" It started bothering him about 15 years ago (about 1997). He had no accident, workers' compensation injury, or surgery; it just started hurting. X-rays showed 5 nonrib-bearing lumbar vertebra; no fracture, loss of vertebral body height, or malalignment identified. Lumbar lordosis was preserved. There was minimal narrowing of the L5-S1 disc space and mild anterior osteophytes of the L2 and L4. Lower lumbar facet arthropathy was noted. The examiner diagnosed degenerative disc disease of the lumbosacral spine. She opined that the Veteran's lumbosacral spine degenerative disc disease is less likely as not (less than 50/50 probability) proximately due to, or caused by, or aggravated by his service-connected right and/or left knee disabilities. Her rationale was that there is neither objective evidence nor a sound medical basis for attributing degenerative changes of the lumbar spine to the service-connected knee disabilities. The Veteran denied, and there is no history of any trauma or injury to the lumbar spine due to the service-connected knees when his back pain started in the late 1990's. He had been working in a strenuous physical occupation (construction) since separating from active duty in 1976 (20 years). He was at that time in his 40's and the record indicates arthritic processes were affecting many joints in his body, which is a natural/physiological occurrence. The Veteran's claimed lumbar spine disability is more likely due to aging, genetic make-up strenuous occupation stresses, and symptoms compounded by daily/social stresses including obesity. Regarding the claimed cervical spine disability, the Veteran stated that he was told that he had a herniated disc. He reported that it started to bother him about 10 years ago; there were no accidents, falls, or other trauma. He denied surgeries, hospitalizations, emergency room visits, and bowel/bladder incontinence due to the claimed neck disorder. The examiner diagnosed degenerative disc disease of the cervical spine. She opined that the Veteran's degenerative disc disease of the cervical spine is less likely as not (less than 50/50 probability) proximately due to, or caused by, or aggravated by his service-connected right and/or left knee disabilities. The rationale was that there is neither objective evidence nor a sound medical basis for attributing degenerative changes of the cervical spine to the knee disabilities. The Veteran denied, and there is no history of any trauma or injury to the cervical spine due to the service-connected knees when the claimed neck disorder started in 2002. The cervical spine and the knees are so anatomically distant, with such an unlikely pathomechanical connection that there is no conceivable basis for attributing one to the other. He had been in a strenuous physical occupation (construction) since separating from active duty in 1976. The Veteran would have been 58 years old in 2002, and the claimed neck disorder would most likely be part of the generalized arthritic process affecting many joints in his body, a natural/physiological occurrence. The claimed cervical spine disability is more likely due to aging, genetic make-up, or strenuous occupational stresses. On psychological evaluation the examiner opined that the Veteran's lumbar and/or cervical spine disabilities are not caused by or a result of the Veteran's service-connected depressive disorder. The examiner's rationale was that a depressive disorder does not cause physical problems. The only diagnosis that would apply to creating a perception of a physical problem (without medical evidence) would be a conversion disorder, and the Veteran does not have such diagnosis. It is less likely than not that the Veteran's lumbar and/or cervical spine disabilities have been aggravated by his service-connected depressive disorder. The rationale is that depression does not aggravate physical disabilities. Depression may decrease coping abilities in response to pain but does not cause structural or physical worsening of a condition. The Veteran's mood disorder was diagnosed in the context of psychosocial stressors such as financial and relationship problems. In addition his mood can be impacted by the use of medications such as narcotics and benzodiazepines. IV. Analysis The evidence shows current lumbar and cervical spine disabilities (diagnosed as degenerative disc disease/degenerative joint disease). As was noted above, it is neither shown nor alleged that the Veteran's lumbar and cervical spine disabilities are directly related to his service, nor manifest within the presumptive time period after service. He contends that these disabilities are secondary to his service-connected knee disabilities and/or service-connected depressive disorder. The Board finds that the probative medical evidence in this case establishes that the Veteran's lumbar and cervical spine disabilities are not secondary to any service-connected disability. The Veteran's contentions were addressed by VA examination reports in October 2010 and September 2012. The more probative VA examination report is the September 2012. As that report was prepared by a competent medical examiner with the benefit of direct inspection and interview of the Veteran and acceptance of the Veteran's own details of his symptom experience and history. The September 2012 VA examiner presents the medical opinion that the Veteran's lumbosacral and cervical spine degenerative disc disease is less likely as not (less than 50/50 probability) proximately due to, or caused by, or aggravated by his service-connected right and/or left knee disabilities, or his service-connected depressive disorder. The examiner explained that there was neither objective evidence nor a sound medical basis for attributing degenerative changes of the lumbar and cervical spine to the service-connected knee disabilities; and depression does not aggravate physical disabilities. She stated that depression may decrease coping abilities in response to pain but does not cause structural or physical worsening of a condition. The examiner further explained that there was no history of any trauma or injury to the lumbar and cervical spine due to the service-connected knees; and considering the anatomically distance of the cervical spine to the knees, with such an unlikely pathomechanical connection, there is no conceivable basis for attributing one to the other. The examiner concluded that the Veteran's claimed lumbar and cervical spine disabilities are more likely due to aging, genetic make-up, strenuous occupation stresses and symptoms compounded by daily/social stresses, including obesity. The Board views this VA medical opinion as highly persuasive. The Board acknowledges that the October 2010 VA examination report noted that the issues of whether current lumbar and cervical spine disabilities were either caused by or aggravated by the service-connected knee disability could not be resolved without resorting to mere speculation. The Court in Jones v. Shinseki, 23 Vet. App. 382 (2010, indicated that the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence, in order for the opinion to be satisfactory. While the Veteran's representative presented argument on the inadequacy of the October 2010 examination because the examiner failed to render the necessary medical opinion, the Board has reviewed the medical opinion in the context of the examiner's overall report and finds the opinion to be adequate. The examiner's suggested basis for his conclusion is that there is no medical literature to support that degenerative knee disease will result in lumbar or cervical spine degenerative disease. The Board acknowledges that the October 2010 examination report is less probative as to an etiology opinion concerning the claimed lumbar and cervical spine disabilities. The Board finds the opinion of the September 2012 VA examiner more persuasive for the reasons set forth above. The Board additionally acknowledges the Veteran's reference to an Internet article regarding a link between depression and physical symptoms. The article, however, does not document that lumbar and/or cervical spine degenerative disc disease is caused or aggravated by a depressive disorder; and further, does not specifically relate to the Veteran. See Sacks v. West, 11 Vet. App. 314, 316 (1998). In fact, the September 2012 VA examiner noted that depression does not aggravate physical disabilities. The Board finds that the preponderance of the probative evidence of record weighs against finding that the Veteran's claimed lumbar and cervical spine disabilities are secondary to any of his service-connected disabilities. The Board recognized that the Veteran has offered lay statements from his spouse and a friend, as well as his own lay statements, including his testimony at his September 2008 Board hearing. While the Veteran may sincerely believe his lumbar and cervical spine disabilities are proximately due to a service-connected disability (knees or depressive disorder), he is a layperson, and his opinion (and those of his spouse and friend), is not competent to render a medical opinion as to a nexus between a service-connected disability and the claimed lumbar and cervical spine disabilities. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In light of the foregoing, the Board must conclude that the preponderance of the evidence is against the claims, and entitlement to service connection for lumbar spine and cervical spine disabilities is not warranted. ORDER Service connection for lumbar spine disability and cervical spine disability is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs