Citation Nr: 1317088 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 10-08 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a pectoral muscle disability. 4. Entitlement to service connection for a lumbar spine disability. 5. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from February 23, to March 15, 1973, at which time he was medically discharged from service. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified at a March 2013 hearing before the undersigned, and a transcript of that hearing has been associated with his Virtual VA electronic file. The Board observes that the Veteran indicated on his February 2010 VA Form 9 substantive appeal that he was actually seeking service connection for a right shoulder disability, rather than a left shoulder disability. The Veteran has a congenital defect, Sprengel's deformity, of the left shoulder, and a diagnosis of degenerative changes of the right shoulder. The undersigned discussed this issue with the Veteran at the March 2013 hearing, and his representative clarified that he was seeking service connection for a disability of his left shoulder. FINDINGS OF FACT 1. The Veteran has diagnoses of spina bifida occulta, Klippel-Feil syndrome, pectus excavatum, and Sprengel's deformity, all congenital defects. 2. The Veteran's pectus excavatum was noted on his February 1973 enlistment examination. 3. The Veteran's spina bifida occulta, Klippel-Feil syndrome, and Sprengel's deformity clearly and unmistakably preexisted service. 4. The Veteran did not suffer any superimposed injury or disease related to any of his congenital defects during his active military service. 5. The Veteran has current diagnoses of degenerative changes of the cervical spine, lumbar spine, and left knee. 6. The Veteran's degenerative changes of the cervical spine, lumbar spine, and left knee did not begin during active duty service and are not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The Veteran's congenital abnormalities of the cervical spine, lumbar spine, shoulder, and pectoral muscles were not incurred in or aggravated by his military service and are not diseases or injuries for which VA compensation is paid. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). 2. An acquired cervical spine disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. An acquired lumbar spine disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303. 4. An acquired left knee disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, the Veteran was sent letters in June and July 2009 that fully addressed all VCAA notice elements for service connection claims and was issued prior to the initial RO decision in this matter. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and treatment. Notably, the Veteran identified two private treatment providers who may have evidence relevant to his claim; VA made two attempts to obtain the private medical records identified, but was unsuccessful. Those attempts fulfilled VA's statutory duties. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). Although the Veteran has not been provided any VA examinations in conjunction with his claims, none are necessary. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Although there is competent evidence of the claimed disabilities on file, the Veteran has not presented any evidence of an in-service event or injury with respect to his congenital defects of the cervical spine, shoulder, pectoral muscles, or lumbar spine. As discussed more thoroughly below, in order to warrant service connection for a congenital defect, there must be evidence of a superimposed injury during service that increased the severity of the claimed disabilities. The only "injury" claimed by the Veteran concerning his congenital defects is his generalized contention that his congenital defects worsened due to rigorous activity during basic training. When asked specifically about each congenital defect during his March 2013 hearing testimony, the Veteran failed to provide any testimony of an in-service injury. Thus, despite his generalized claims, he has offered no evidence of an injury during active duty, and thus an examination would not be productive of evidence that could support the Veteran's claim. The Veteran also has diagnoses of degenerative changes of the cervical spine, lumbar spine, and left knee. With regard to the disabilities manifested by degenerative changes, despite current diagnoses, there is no credible evidence of an event or injury in service to which an examiner could associate the disabilities with. Specifically concerning the knee disability, the Board acknowledges that the Veteran has claimed that his knee began to bother him during service. In contrast, he also stated that his knee did not begin to bother him until 1983, ten years after he separated from active duty. As discussed below, due to his inconsistencies, the Board does not find the reports of in-service knee pain to be credible. As such, for none of the claimed disabilities is there an indication that the disabilities claimed may be associated with the Veteran's service, and thus, even under the low standard provided in McLendon, an examination is not necessary for adjudication of the Veteran's claims. The Veteran's statements in support of the claim are of record, including testimony provided at a March 2013 Travel Board hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his service connection claims and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claims for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012), and that the Board can adjudicate the claim based on the current record. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran has claimed service connection for conditions of the cervical spine, pectoral muscles, left shoulder, lumbar spine, and left knee. Presently, he has diagnoses of Klippel-Feil syndrome (a congenital cervical spine condition), Sprengel's deformity (a congenital abnormality of the scapula), pectus excavatum (a condition of the muscles of the chest), spina bifida (a congenital deformity of the lumbar spine), degenerative changes of the cervical vertebra from C5 to T1, degenerative changes of the lumbar spine, and degenerative joint disease of the left knee. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). In making all determinations, the Board must fully consider the lay assertions of record. Buchanan, 451 F.3d at 1335. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Presumption of Soundness Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the disease or injury existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1137. In July 2003, VA's General Counsel issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003), 69 Fed. Reg. 25178 (2004). The burden is a formidable one. Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). In determining whether there is clear and unmistakable evidence to rebut the presumption of soundness, all evidence of record must be considered, including post-service medical opinions. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). The only disability noted on the Veteran's February 1973 entrance examination report was "severe pectus excavatum." Therefore, the Veteran is presumptively sound in other regards, unless there is clear and unmistakable evidence that other disabilities existed prior to service, and were not aggravated by service. The Veteran was medically separated from service 23 days after his induction. He did not receive any medical treatment in the interim, except for a single instance in March 1973 when he was seen for complaints of back spasms. Upon examination, he was noted to have an asymmetrical upper trunk, with the right scapula two inches higher than the left, with prominent axial musculature. There was no muscle spasm present, but he had pain on bending forward, backwards, and sideways. The examiner also noted a marked pectus excavatum. X-rays demonstrated spina bifida occulta at the S1 vertebra, with asymmetrical lumbosacral facet joints with lumbarization of the S1 vertebra. X-rays also showed that the C6-C7 vertebrae were fused. The examiner diagnosed the Veteran with spina bifida occulta, Klippel-Feil syndrome, Sprengel's deformity, and pectus excavatum, and noted that his congenital bony abnormalities were consistent with his back pain symptoms. Per the ensuing Medical Board Report, the diagnosed physical "defect[s]" precluded the Veteran's participation in the military. The Veteran testified at his March 2013 hearing that he was unaware of his defects, save his pectus excavatum, prior to entry into service. He had experienced a variety of body aches prior to service, but those he associated with the normal aches and pains of growing up, as well as his motorcycle riding. The Board finds that, despite the Veteran's unawareness of his conditions, there is clear and unmistakable evidence that, in addition to the pectus excavatum noted on his entrance examination, his spina bifida occulta, Klippel-Feil syndrome (cervical spine), and Sprengel's deformity (scapula) all preexisted service. Those defects were diagnosed within three weeks of his entry onto active duty, and were described by the March 1973 examiner as congenital defects. There is no report of injury during service that could be etiologically linked to the Veteran's conditions. Further, the Veteran's contention is not that the defects did not preexist service, only that he was unaware of them prior to his March 1973 examination. Without any evidence to the contrary, the Board finds that the evidence that spina bifida occulta, Klippel-Feil syndrome, and Sprengel's deformity, all preexisted service. 38 U.S.C.A. §§ 1111, 1137. Congenital Defects The Veteran's pectus excavatum, spina bifida occulta, Klippel-Feil syndrome, and Sprengel's deformity, are, per the March 1973 medical board examination report, congenital defects. Congenital and developmental defects are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303(c), 4.9 (2012). Therefore, such disorders require more than an increase in severity during service in order to warrant a grant of service connection. The evidence must show that the congenital or developmental defect was subject to a superimposed disease or injury during military service that resulted in increased disability. VAOPGCPREC 82- 90 (July 18, 1990), 55 Fed. Reg. 45711 [a reissue of General Counsel Opinion 01-85 (March 5, 1985)]. VA General Counsel explained that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes. A congenital disease may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. On the other hand, a congenital or developmental defect is not service connectable in its own right, although service connection may be granted for additional disability due to disease or injury superimposed upon the defect during service. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90. There is no evidence in the claims file that any of the congenital defects were subject to a superimposed injury or disease during service. At the March 2013 hearing, the Veteran denied experiencing any in-service injuries. Rather, it was his and his representative's position that the defects were "aggravated beyond their normal progression by rigorous activity while in basic training." The undersigned, attempting to determine if there was any basis for finding a superimposed injury in service affecting any of those defects, asked the Veteran if he experienced any particular trauma or injury during his active duty. In response, the Veteran denied any particular injuries to his neck, back, or shoulder. Further, the Veteran testified that his congenital pectoral defect has never caused him any difficulties, including to the present. Therefore, without any evidence of any superimposed injury on any of the Veteran's congenital defects, the Board finds that service connection is not warranted. Id. Non-Congenital Diagnoses The evidence demonstrates, in addition to the congenital defects noted above, diagnoses of degenerative changes of the cervical vertebra from C5 to T1, degenerative changes of the lumbar spine, and degenerative joint disease of the left knee. With chronic disease (as defined in 38 C.F.R. § 3.309(a)) shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are 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. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran was not shown to have arthritis of the cervical spine, lumbar spine, or left knee during service or for years thereafter. He does not claim such a timeframe for his diagnoses, and no other evidence of record, including medical evidence, suggests such a diagnosis until many years after service. Therefore, service connection is not warranted. Id. The Veteran's claims must be considered under the theory of direct service connection as well. As noted above, service connection generally requires credible and competent evidence showing: (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. See Holton, 557 F.3d at 1366. The Board concedes that the Veteran has current disabilities of the cervical spine, lumbar spine, and left knee other than the congenital defects discussed above. He has not presented evidence, however, to meet the second prong of service connection for any of the claimed disabilities - i.e., an in-service diagnosis (or, as with arthritis, a diagnosis within the first post-service year), or an event or injury to which the current diagnoses could be related. The Veteran testified that he had normal growing pains in his neck prior to service, which he associated with growing up and riding motorcycles. He did not suffer any injury of the neck during service. He began to get treatment for his neck "some time after" leaving the Air Force. Concerning his back, he stated that similar to his neck, he had some back pain from prior to service that he believed to be caused by riding motorcycles and normal growing pains. He did not incur any back injury during service. He did not seek medical treatment for back pain for many years after service. It is his contention, with regard to both the back and neck, that the calisthenics he performed during basic training caused his disabilities. Although there is a reference to back spasms during the Veteran's brief active duty, the examiners at that time determined that the pain he experienced was related to his congenital bone defects. The evidence does not suggest that any disability other than his congenital defects was present during service. To the extent that the Veteran's representative argues, contrary to the medical opinion of the examiner who conducted the Medical Board examination, that the in-service back spasms were due to aggravation of a pre-service congenital defect, the representative's argument fails in two regards. Initially, the representative is not competent to provide an opinion as to the etiology of the Veteran's back spasms; there is no competent evidence linking the back spasms to any event or injury in service. See Kahana, 24 Vet. App. at 433. Further, aggravation of a congenital defect, as discussed above, is not a basis for service connection. 38 C.F.R. § 3.303(c). The only disability that the Veteran asserts began to bother him during service is his left knee disability. The Veteran has been inconsistent in describing the timeline of his disability, however. Although he initially stated during his March 2013 hearing that his knee bothered him during service, he subsequently altered that testimony, stating, " . . . it didn't start giving me any real problems until around the eighties, when it started to pop on a regular basis." He explained that when helping his brother "junk out" a 1965 Chevy in 1983, his knee popped and stayed in a locked, bent position, and he ultimately required knee surgery. He also stated that the reason his Medical Board examination noted that his knees were "normal" was that he complained of knee pain, but the examiners disregarded his knee during the examination in order to focus on his congenital defects. Prior to his hearing testimony, the Veteran was similarly inconsistent concerning his knee pain. In November 2008, he informed a treating provider that his pain began in 1983, and that he had knee surgery in 1985. A month later, in December 2008, he informed a provider that his knee pain began in the mid-1970s with "unknown triggers," other than the fact that it would worsen during cold weather. While the Veteran is competent to identify knee pain, including when it began, he has been inconsistent in those descriptions. Due to his inconsistency, the Board finds his statements regarding the in-service onset of his knee pain to be not credible. Barr, 21 Vet. App. at 308. Without credible evidence of an in-service event or injury of the cervical spine, lumbar spine, or left knee, the Veteran cannot meet the criteria for service connection. See Holton, 557 F.3d at 1366. His claims must therefore be denied. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a pectoral muscle disability is denied. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a left knee disability is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs