Citation Nr: 1317929 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-40 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to an increased disability rating for degenerative joint disease of the right wrist, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from September 1955 to October 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2008 and August 2009 rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) located in Milwaukee, Wisconsin. The Veteran appeared at a hearing before a local hearing officer at the RO in November 2010. A transcript of the hearing is of record. The issue of entitlement to an increased evaluation for right wrist degenerative joint disease is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. Symptoms of a cervical spine disorder were not chronic in service. 2. Symptoms of a cervical spine disorder were not continuous since service. 3. A degenerative joint disease of the cervical spine disorder did not manifest in service or to a compensable degree within one year of service separation. 4. The currently diagnosed cervical spine disorder is not causally or etiologically related to service. CONCLUSION OF LAW A cervical spine disorder was not incurred in or aggravated by service nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's status has been substantiated. In a June 2009 letter, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The June 2009 letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim. VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records, service and VA, have been obtained and associated with the claims folder. No other relevant records have been identified. The Veteran was afforded a VA examination in November 2010 which provided detailed information and a medical opinion as to the etiology of the Veteran's cervical spine disorder and its relationship, if any, to his period of service. The examiner also provided rationale to support his opinion. As a result, the Board finds the examination report sufficient in order to properly address the issue of service connection for a cervical spine disorder. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative. He also appeared at a local hearing office and gave testimony to a local hearing officer with regard to his claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Cervical Spine Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran has cervical spine degenerative joint disease which is the equivalent of arthritis and a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) applies in this case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease 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. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran maintains that his current cervical spine disorder is related to his period of service, to include by way of injury sustained when he struck his head on a sidewalk in service. A review of the Veteran's service treatment records reveals that he was seen in May 1956 for a contusion to his left forehead after falling out of a parked automobile and striking his head on the sidewalk. The diagnosis rendered at that time was a contusion to the left forehead. There were no complaints or findings of any neck/cervical spine pain reported at that time. On May 30, 1956, the Veteran was seen with contusions of the peri-orbital and left frontal regions resulting from getting into an altercation with another soldier and being struck in the face. Skull x-rays taken at that time were negative. There were no notations of complaints or findings of neck/cervical spine problems at that time. At the time of the Veteran's October 1957 service separation examination, normal findings were made relating to the head, neck, face, and scalp. Normal findings were also reported for the spine and upper extremities, with normal neurologic findings also being noted. There were also no complaints or findings of neck/cervical spine problems in the years immediately following service. In conjunction with a claim for left knee and back disabilities, the Veteran was afforded a VA examination in April 1967. At the time of the examination, normal findings were reported for the head, face, and neck. While the Veteran complained of low back pain at that time, he did not report having any problems in his cervical spine area. In a psychiatric report prepared at that time, the Veteran indicated that he had worked in a plastics factory until a year ago when his back trouble started, causing him to leave his job. The first objective medical findings of neck problems subsequent to service did not occur until June 2003, when the Veteran was found to have degenerative disc disease causing impingement against the spine. At his November 2010 hearing, the Veteran testified as to having fallen out of a car and hitting his head while in service. The Veteran also noted the other incident where he was struck in the face by a fellow sailor. The Veteran stated that either of these incidents could have caused his current neck/cervical spine problems. Following the hearing, the Veteran was afforded a VA examination in November 2010 to determine the etiology of any current neck/cervical spine disorder, and its relationship, if any, to his period of service. The Veteran reported the incident in service where he fell out of the automobile and hit his head on the sidewalk. He stated that he had had neck pain that radiated down his arm since that time. He indicated that the pain was intermittent for many years following the injury, but had become significantly worse over the past 10 years. He reported that he now had constant neck pain that radiated into his right arm. It was exacerbated by moving his head around, looking side to side, or looking up. X-rays taken of the cervical spine revealed loss of disc height and osteophytes throughout the cervical spine, most prominent at C5-6. The examiner rendered a diagnosis of cervical spine arthritis. The examiner indicated that a review of the service treatment records revealed that the injury the Veteran claimed caused his cervical spine condition occurred in May 1956. The examiner noted that service treatment records, including the October 1957 service separation examination, did not show cervical problems. The examiner further indicated that 10 years after the Veteran left the military, he claimed a low back condition related to the same incident which he now claimed caused the neck problem. The examiner observed that there was no indication that the Veteran was having chronic neck problems at that time. He noted that the first indication of cervical problems was in 2003 when a neck x-ray done for right hand tingling showed degenerative joint and disc disease. It was the examiner's opinion that the Veteran's current cervical spine disorder was unrelated to the inservice incident as the medical records did not support ongoing cervical problems or radicular symptoms dating from 1956. He indicated that the Veteran's right arm numbness, weakness, and tingling symptoms did not fit any specific dermatomal distribution or isolate to a single nerve root as would be consistent with radiculopathy. Rather, they were generalized to the entire right upper extremity. Service connection for a cervical spine disorder not warranted. Based on the evidence of record, lay and medical, the Board finds that the weight of the evidence does not demonstrate that the Veteran had chronic symptoms related to the cervical spine in service, or continuous symptoms since service. The service treatment records do not show complaints, findings or a diagnosis of a cervical spine disorder during service. As noted above, At the time of the October 1957 service separation examination, normal findings were made relating to the head, neck, face, and scalp. Normal findings were also reported for the spine and upper extremities, with normal neurologic findings also being noted. There were no diagnoses of a cervical spine disorder in service or within the one year following service. The first diagnosis of a cervical spine disorder did not occur until 2003. The Veteran has reported in various statements and through testimony that he began to have cervical spine problems in service. However, as indicated above, the contemporaneous evidence in the service treatment records, include the separation examination, does not show complaints or a diagnosis of a cervical spine disorder in service. In addition, the evidence includes the November 2010 VA examination report. The VA examiner thoroughly reviewed the record and stated that the Veteran did not have symptoms/signs of a cervical spine disorder in service, with the examiner providing specific detail as to why the Veteran did not have cervical spine manifestations in service or within the one year period following service. Therefore, the weight of the evidence does not demonstrate chronic symptoms of a cervical spine disorder during service. The Board finds that the Veteran did not have continuous symptoms of a cervical spine disability. The first post-service medical evidence of a neck disorder was shown in June 2003, which noted a diagnosis of degenerative disc disease. The Board finds that the Veteran's denials of neck/cervical spine problems at separation, the separation examination report that did not show a diagnosis of a cervical spine disorder, the fact that he did not report any neck/cervical spine problems at the April 1967 VA examination, and the lack of any treatment for symptoms possibly related to a cervical spine disorder prior to 2003, are more probative than are his assertions voiced years later and in connection with a claim for disability benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). It simply is not consistent that the Veteran would have been experiencing neck/cervical spine symptoms but would at the same time deny and/or not report these symptoms for numerous years following service. The above evidence is more probative than are his assertions, voiced well beyond the one year presumptive period, that any claimed cervical spine disorder is related to his period of service. The Board has considered the lay evidence of record in determining whether there is continuity of symptoms. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept a veteran's uncorroborated account of his/her active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). For these reasons, the Board concludes that the assertions of continuity of symptoms regarding cervical spine since service are not credible. For the above reasons, that the weight of the credible and probative evidence does not demonstrate chronic symptoms in service or continuity of symptoms since service regarding the claimed cervical spine disorder. As to the Veteran's belief that his current cervical spine disorder is related to his period of service, the Board acknowledges the holding of the U.S. Court of Appeals for the Federal Circuit in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. The Veteran has not been shown to possess the required expertise to render such an opinion. Moreover, there are many complex factors/contributors to the development of cervical spine disorders such as age, intercurrent injuries, etc., which the Veteran also does not have the requisite training to address. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of the Veteran's medical history, including but not limited to the medical evidence contained in the claims file. See, e.g. Miller v. West, 11 Vet. App. 345, 348. The Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In the current case, the Veteran has not submitted any medical evidence specifically indicating that his current cervical spine disorder is related to his period of service. In contrast, the Board obtained a VA opinion as to the nature of the Veteran's current cervical spine disorder and its relationship, if any, to his period of service. The November 2010 VA examiner's opinion specifically stated that the Veteran's current cervical spine disorder was unrelated to his period of service. The Board is giving this opinion the most probative weight. The examiner provided specific detail in support of his opinion, to include his citing to service treatment records and post-service treatment records. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Thus, the Board finds this opinion to be the more probative evidence of record. In sum, the preponderance of the evidence weighs against a finding that any current cervical spine disorder, to include degenerative joint and disc disease, developed in service or in the one year period following service, or, is otherwise related to the Veteran's period of service. ORDER Service connection for a cervical spine disorder is denied. REMAND As it relates to the claim for an increased disability evaluation for the Veteran's service-connected right wrist degenerative joint disease, following his November 2010 hearing, the Veteran was afforded a VA examination later that month. Argument received from both the local and national representative has requested that the Veteran be afforded a new VA examination to determine the current severity of his right wrist degenerative joint disease. The Veteran's national representative, in his May 2013 argument, indicated that the examination was over 2.5 years old and outdated. Both representatives have stated that the Veteran has indicated that his condition has worsened in severity. VA is obliged to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). The Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). As such, an additional VA examination to determine the severity of any current right wrist degenerative joint disease is warranted. Accordingly, the case is REMANDED for the following action: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to April 2008, the date of the most recent VA treatment records in the claims folder, should be obtained and incorporated in the record. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected right wrist degenerative joint disease. All indicated tests and studies must be performed and all findings must be reported in detail. The claims folder and all other pertinet records should be made available to the examiner and the examiner should note such review in his/her report. Ranges of motion should be reported in degrees. The examiner should determine whether the service-connected right wrist degenerative joint disease is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. Such inquiry should not be limited to muscles or nerves. The examiner should also note the presence or absence of ankylosis. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. 3. After completing the above and any other development deemed necessary, readjudicate the claim in light of the additional evidence. If the claim is not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs