Citation Nr: 1318592 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-17 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for cervical spine strain (granted under 38 U.S.C. § 1151). 2. Entitlement to benefits under 38 U.S.C. § 1151 for cervical degenerative disc disease and radiculopathy of the left upper extremity (left upper extremity disability under 38 U.S.C. § 1151 or on secondary basis). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from March 1971 to December 1972. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The evidence does not establish the Veteran had forward flexion of the cervical spine of 15 degrees or less or favorable ankylosis of the entire cervical spine at any point during the period on appeal. 2. The evidence does not establish the Veteran had any incapacitating episodes due to intervertebral disc syndrome which required bed rest prescribed by a physician at any point during the period on appeal. 3. The weight of the evidence does not establish that the Veteran had cervical degenerative disc disease or left arm radiculopathy that was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA or was caused by the now service connected neck disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the Veteran's cervical spine strain have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a Diagnostic Code 5237 (2012). 2. Criteria for compensation under 38 U.S.C.A. § 1151 for cervical degenerative disc disease or left arm radiculopathy as a result of VA medical treatment have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran is seeking an increased initial rating for his service connected cervical spine strain under 38 U.S.C.A. § 1151, effective February 2008. The Veteran is currently assigned a 20 percent rating under Diagnostic Code 5237, based on limitation of motion. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that a 20 percent rating will be assigned when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, or when combined range of motion of the cervical spine is greater than 170 degrees, or when muscle spasm or guarding are severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A higher 30 percent rating is warranted when forward flexion of the cervical spine is 15 degrees or less, or there is favorable ankylosis of the entire cervical spine. A rating in excess of 30 percent is not warranted unless there is unfavorable ankylosis. 38 C.F.R. § 4.71a. The Veteran filed his claim in February 2008. All evidence has been reviewed and considered, and relevant evidence is summarized below. The Board will first discuss whether the Veteran is entitled to an increased rating based on limitation of motion of his cervical spine, then will discuss if the Veteran is entitled to any additional ratings for this condition. The record reflects in October 2006 the Veteran received treatment from a chiropractor for his lower back pain. The physician indicated he performed some adjustments. The Veteran returned in November 2006 and additional adjustments were performed. In subsequent statements describing this treatment the Veteran has consistently asserted the chiropractor strongly pulled on his arm, causing his neck to snap. The Veteran has consistently reported experiencing pain in his neck and arm since that time. In March 2007 the Veteran sought treatment for neck and back pain which he described was 8 out of 10 and had lasted for the past several months. The nurse noted the Veteran reported neck pain since going to the chiropractor, and his back pain continued. The Veteran stated his pain was aggravated by turning his head. The Veteran was instructed to continue taking his pain medication, but advised to stop chiropractor treatment for now. In June 2007 a MRI was taken of the Veteran's cervical spine. The radiologist noted normal alignment in the cervical spine; however multilevel degenerative disc changes were especially prominent at C4-5 through C7-T1. In addition the radiologist opined the Veteran had broad based central disc herniation without cord deformity at C4-5. Based on his review of the MRI the radiologist opined the Veteran had degenerative disc disease in the cervical and thoracic spinal segments. Throughout the winter of 2007 and 2008 the record reflects the Veteran routinely described an aching pain in his neck as well as ongoing back pain. He consistently reported the pain in his neck began after chiropractic treatment. He assessed the pain as 8 out of 10. In April 2008 the Veteran reported the pain in his neck was now a 9 out of 10 and he described the pain as stabbing and throbbing. The physician opined the Veteran had neck pain due to degenerative joint disease or spasm with herniated discs. The Veteran also described pain under his left armpit which radiated to his back. In June 2008 the Veteran was provided with a VA examination of his spine. The examiner reviewed the Veteran's medical records and recapped his history consistent with the record. The Veteran reported he could not sleep for any extended period of time due to his neck pain. He also reported finding driving very difficult, and he could no longer perform household chores which required lifting. The Veteran stated he would walk approximately one or two blocks before having to stop because of the pain. The Veteran reported he had to quit his last job due to the level of physical activity required. He was currently employed as a light machinist. The examiner noted the Veteran had not been prescribed bed rest in the last twelve months. The examiner conducted range of motion testing which revealed the following results: forward flexion to 25 degrees, with pain at 25 degrees; extension to 25 degrees with pain at 25 degrees; left and right lateral flexion to 20 degrees with pain at 20 degrees, and left and right lateral rotation to 45 degrees with pain at 45 degrees. The examiner opined an x-ray of the Veteran's spine revealed degenerative disc disease, most pronounced at C5-6. The examiner noted there was no additional functional impairment due to pain, fatigue, weakness, lack of endurance, of incoordination on repeated use. Based on the foregoing the examiner found the Veteran's symptoms of pain and limitation of motion were consistent with cervical strain. He opined it was as likely as not that his cervical strain was caused by the chiropractic adjustments. The examiner opined the Veteran also had degenerative disc disease of the cervical spine. The examiner opined this degenerative disc disease was not the result of the chiropractic treatment but was more likely an ongoing process prior to any chiropractic adjustment. The examiner also noted the Veteran's complaint of right arm radicular pain. The examiner found no joint injury related to the Veteran's history of chiropractic manipulation, but rather opined the Veteran's right arm was painful due to his cervical spine condition. The Board finds the results of the range of motion testing in this examination reflect the Veteran's condition warranted a 20 percent rating for impairment of motion under Diagnostic Code 5237. The Veteran had forward flexion to 25 degrees. As discussed above, a 20 percent rating is warranted when forward flexion of the cervical spine is between 15 and 30 degrees. As such, the Board finds a 20 percent rating was appropriate at this time. A higher 30 percent rating is not warranted unless forward flexion of the cervical spine was limited to 15 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5237. In August 2008 the examiner provided an addendum to his June report. The examiner again opined the Veteran's cervical spine strain was related to his chiropractic adujustments. The examiner opined the Veteran's cervical spine strain caused his decreased range of motion and pain at end points of range of motion. However, the examiner opined radiographs revealed the Veteran also had degenerative disc disease of his cervical spine at C5-6. The examiner opined this condition was the result of the natural progression of the cervical spine degeneration and was not related to the chiropractic adjustments, providing evidence against the current claim in that it indicates a separate disability no associated with service or treatment. The examiner also opined the Veteran had bilateral radiculopathy of the upper extremities. The examiner opined this radiculopathy was at least as likely as not related to his cervical spine degenerative disc disease and not his cervical spine strain, providing evidence against any second service connection claim related to the neck disability. The examiner explained that radiculopathy is caused by the encroachment of nerves as they exit the spine by degenerative changes which leave less room for the nerves. The examiner opined cervical spine strain does not cause radiculopathy. In summary, the examiner opined the Veteran's cervical spine strain and resulting limitation of motion were as likely as not caused by his chiropractic adjustments, but his cervical spine degenerative disc disease and resulting radiculopathy were less likely than not due to his chiropractic adjustments. Throughout the period on appeal the Veteran has consistently complained of pain, loss of motion, and grinding noise in his neck, as well as loss of feeling in fingertips and loss of motion. In his October 2008 written Notice of Disagreement the Veteran asserted his neck condition was worse. He also stated that he never experienced any radiated pain down his left arm until the chiropractic adjustments, and therefore argued his radiculopathy was related to the chiropractic adjustments. The Veteran also reported he had to quit his previous job as a manager due to his neck condition, and now worked in a lesser job handling small aluminum parts in a factory (in other words, that he can work, but that his ability to work is diminished). In his May 2009 written substantive appeal the Veteran requested an opinion from a neurologist. In June 2009 the Veteran returned to the VA for updated medication to treat his back and neck pain. The nurse noted his neck had good range of motion and noted no cervical tenderness, providing evidence against the increased rating claim. The Veteran's pain treatment medications were continued. In June 2010 the Veteran was provided with a new examination for his back. The examiner reviewed the Veteran's claims file, as well as personally interviewed and examined the Veteran. The examiner recapped his medical history consistent with the record. The Veteran reported he quit his job due to neck pain and was recently laid off from another job due to the inability to work overtime. The Veteran described constant severe pain which progressively got worse, as well as grinding and popping in his neck. He reported severe flare-ups occurred weekly after lifting or turning the wrong way and lasted several hours. The Veteran reported sitting still was the only way to alleviate his condition. The examiner noted the Veteran had normal head position, but held his head very stiff. The examiner noted no muscle spasm, tenderness, or guarding severe enough to result in abnormal gait or spinal contour. Testing revealed active motion against resistance as well as normal muscle tone in all extremities. The Veteran also had normal sensory responses in all extremities except light touch was impaired in both arms, especially his finger tips. All reflexes were normal except both triceps were hypoactive. The Veteran reported no history of urinary incontinence or urgency, paresthesias, or unsteadiness. The examiner noted no incapacitating episodes of spinal disease, providing more evidence against this claim. Range of motion testing was performed and revealed flexion from 0 to 20 degrees, extension from 0 to 25 degrees, left lateral flexion from 0 to 10 degrees, left lateral rotation from 0 to 35 degrees, right lateral flexion from 0 to 10 degrees, and right lateral rotation from 0 to 35 degrees. Additional range of motion testing was conducted after repetitive motion and the Veteran demonstrated pain but no additional limitation of motion, providing more evidence against this claim. The examiner opined the Veteran had cervical strain and degenerative disc and joint disease of the cervical spine with bilateral upper extremity radiculopathy. The examiner opined the bilateral upper extremity radiculopathy as well as complaints of 'grinding' in the neck were related to the degenerative disease not the strain. He opined the complaints of pain, stiffness, fatigue, muscle spasm, and decreased range of motion were due to both the strain and the degenerative disease. The examiner opined the cervical strain condition had significant effects on the Veteran's usual occupation, including problems with lifting and carrying, lack of stamina, and pain. The examiner also opined the Veteran experienced the following effects on his usual daily activities: mild impairment feeding; moderate impairment grooming, toileting, dressing, bathing, and traveling; severe impairment recreation and shopping; and prevented exercise and sports. The Board finds the results from the range of motion testing performed at this exam continued to demonstrate the Veteran was entitled to a 20 percent rating for impaired motion of his cervical spine. Forward flexion of his cervical spine was 20 degrees, and combined range of motion of his cervical spine was 135 degrees, both within the criteria for a 20 percent rating under Diagnostic Code 5237, as discussed above. 38 C.F.R. § 4.71a. The Board finds the evidence does not establish the Veteran was entitled to an increased rating based on impairment motion of his cervical spine at any point during the period on appeal. A higher 30 percent rating is not warranted unless forward flexion of the cervical spine is 15 degrees or less, or there is favorable ankylosis of the cervical spine. The medical evidence does not establish the presence of ankylosis. In addition, the results of the Veteran's most recent range of motion testing, from June 2010, reflect he continued to have forward flexion of the cervical spine in excess of 15 degrees. As such, the Board finds the Veteran is not entitled to an increased rating based on limitation of motion. The schedular criteria also provides that a veteran's back condition can be rated based on limitation of motion, as discussed above, or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever results in the higher evaluation. 38 C.F.R. § 4.71a Diagnostic Code 5243, Note 6. The regulations define an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. In order to receive the minimal compensable rating, a rating of 10 percent, under this Formula the evidence must establish the Veteran had IVDS and experienced incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months. Id. However, the medical evidence of record does not establish the Veteran had IVDS at any point during the period on appeal. In addition, at his most recent VA examination in June 2010 the examiner specifically noted the Veteran had no history of incapacitating episodes of spinal disease. As such, the Board finds the Veteran would not be entitled to a compensable rating under this Formula, and as such will continue to be rated based on limitation of motion for the Veteran's benefit. The schedular criteria also establishes that any objective neurologic abnormalities associated with the Veteran's back condition should be rated separately under an appropriate diagnostic code. As discussed above, the medical evidence establishes the Veteran has bilateral upper extremity radiculopathy. However, as will be discussed further in the next section, the medical evidence establishes that the Veteran's radiculopathy is not due to his cervical spine strain. This opinion is shared by both VA examiners from June 2008 and June 2010. As such, the Board finds the Veteran's bilateral upper extremity radiculopathy is not associated with his service-connected cervical spine strain. (See discussion below). In addition, the Board finds the weight of the evidence of record does not establish the Veteran experienced any other neurological condition during the period on appeal. In his most recent VA exam in June 2010 muscle strength, reflexes, and sensory responses were all normal except for the bilateral upper extremity radiculopathy. The Veteran also denied any history of urinary or fecal incontinence or urgency, paresthesias, or unsteadiness. Therefore, the Board finds the Veteran's cervical spine sprain is not associated with any objective neurologic abnormalities meriting a separate rating. Based on all of the foregoing the Board finds the Veteran's back condition continues to merit a 20 percent rating under Diagnostic Code 5237 based on limitation of motion. 38 C.F.R. § 4.71a. His claim for an increased rating is denied. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In both VA examinations in June 2008 and 2010 the examiners specifically performed additional limitation of motion testing upon the Veteran after repetitive use of his back. The examiners each specifically noted the Veteran did not experience additional limitations of range of motion of his back following repetitive-use testing. As such, the Board finds the DeLuca factors have been explicitly considered by the Board and the medical evidence of record; and a higher rating is not warranted based on additional function loss due to repetitive use. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a veteran is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's back disability that would render the schedular criteria inadequate. The Veteran's main complaints were pain and grinding noise in his neck, which were specifically contemplated in the schedular rating that was assigned. As such, the Board believes that the schedular rating criteria adequately describe the Veteran's disability picture and even if it does not, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. In this regard, the Board has consider the Veteran's very specific complaints. In this regard, it is important for the Veteran to understand that a 20 percent evaluation will, by definition, cause the Veteran problems, including cause him to be unable to do things that other people could do, limiting his ability to work (or, in some case, get promoted). If he did not have problems with his neck, causing him some problems in employment, there would be no basis for the 20 percent evaluation, let alone a higher evaluation. In this regard, it is equally important for the Veteran to understand that not all the evidence in this case supports the current evaluation, let alone a higher evaluation. Without considering his complaints, there would be no basis for the current evaluation. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the evidence suggests the Veteran had to quit his previous job as a manager of a resort and supper club due to his back condition, specifically due to limitation on lifting. However, the record reflects the Veteran worked a variety of jobs after quitting his job as restaurant manager, including as a light machinist and a computer designer. In addition, in December 2009 the Veteran indicated he planned to retire soon, and in June 2010 reported to his VA medical provider he had "retired". As such, the Board finds the evidence does not suggest the Veteran was "unemployable" on account of his service connected back condition, but rather was able to work various alternative jobs until he retired. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected back condition. 1151 Claim The Veteran is also seeking service connection for his cervical degenerative disc disease and left upper extremity radiculopathy under 38 U.S.C.A. § 1151. The Veteran alleges that he never experienced pain in his neck or radiating pain in his left arm until he was referred to a contractor chiropractor through the VA facility to treat his low back pain in October and November of 2006. The Veteran asserted that at these appointments the chiropractor adjusted his spine by strongly pulling his arm downwards and caused his neck to snap. The Veteran reported that since that time he has had pain in his neck with radiating pain in his left arm. As discussed above, the Veteran has been granted service connection for a cervical spine strain under 38 U.S.C.A. § 1151 due to these chiropractic treatments. He is now seeking service connection for his cervical degenerative disc disease and left arm radiculopathy. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability of a Veteran in the same manner as if such additional disability were service connected. A disability is a qualifying additional disability if it was not the result of the Veteran's willful misconduct and either: 1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 38 U.S.C.A. § 1151. The first element of a claim under 38 U.S.C.A. § 1151 is whether the Veteran has an additional disability as a result of VA care or treatment. See 38 C.F.R. § 3.361. If an additional disability is present, the issue then becomes whether the VA procedure actually caused the additional disability. Id. However, in this case the Board finds the weight of the evidence of record does not establish the Veteran's current cervical degenerative disc disease or left arm radiculopathy were caused by his chiropractic treatments. As discussed above, in his June 2008 VA examination report and August 2008 addendum the examiner opined the Veteran did have degenerative disc disease of the cervical spine and bilateral radiculopathy of the upper extremities; however he opined these conditions were less likely than not caused by the Veteran's chiropractic adjustments. The examiner opined that it is "not feasible" that such adjustments would cause degenerative disc disease, but rather this disease was part of an ongoing process that was present prior to any adjustment. Additionally, he opined the Veteran's radiculopathy was at least as likely as not due to the Veteran's cervical spine degenerative disc disease and not his cervical spine strain. The examiner explained that radiculopathy is caused by the encroachment of nerves caused by degenerative changes to the spine. He opined this condition is not caused by cervical strain. This examiner was familiar with the Veteran's medical history, personally examined the Veteran, provided a clear, unequivocal opinion, and supported his opinion with analysis. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Stelf v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the Board finds this medical opinion provides highly probative evidence against the Veteran's claim. The opinion of the 2008 medical examiner was also supported, and confirmed, by the opinion of the more recent VA examiner in June 2010. This examiner also opined the Veteran's bilateral upper extremity radiculopathy was related to his degenerative disease and not his cervical strain. As such, the report of this VA examination provides further evidence against the Veteran's claim. The Board notes that the Veteran has consistently reported he did not experience pain in his neck and radiating down his arm until after the chiropractic treatments in 2006, and consistently related his current pain to that treatment. The Board notes that as a lay person the Veteran is competent to report what comes to him through his senses, such as pain in his neck and radiating pain in his left arm. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the etiology of this pain, or what causes it. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Based on the foregoing, the Board finds the Veteran currently has degenerative disc disease of the cervical spine as well as radiculopathy of his left upper extremity. However, the Board finds the weight of the evidence of record does not establish this current cervical spine and left arm disabilities were caused by his VA chiropractic treatment. Instead, the evidence establishes the degenerative disc disease likely pre-dated his chiropractic treatment, and his current left arm radiculopathy was due to his cervical degenerative disc disease. As such, the Board finds the weight of the evidence does not establish the Veteran currently has additional disabilities of degenerative disc disease of the cervical spine or left arm radiculopathy which were the result of VA care or treatment. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. As such, his claim for service connection for degenerative disc disease of cervical spine and left arm radiculopathy under 38 U.S.C.A. § 1151 is denied. Finally, beyond the above, the Board has also considered if the Veteran's current degenerative disc disease of the cervical spine or left upper extremity radiculopathy are service connected secondary to the Veteran's service-connected cervical spine strain. Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. However, the Board finds the weight of the evidence of record does not establish the Veteran's degenerative disc disease or radiculopathy are secondary to his service-connected cervical strain. As discussed above, the weight of the medical evidence suggests the Veteran's degenerative disc disease pre-dated his cervical spine strain, and therefore was not caused secondary to the strain. In addition, the medical evidence does not suggest the Veteran's radiculopathy is secondary to his cervical strain, but rather medical professionals consistently attributed his upper extremity radiculopathy to his degenerative disc disease. There is no suggestion of aggravation. This medical opinion has been confirmed within two examinations. As such, the Board finds the weight of evidence of record does not establish the Veteran's currently diagnosed degenerative disc disease of the cervical spine or left upper extremity radiculopathy are service connected on a secondary basis. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in May 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran of what elements were required to establish a claim under § 1151. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records have been obtained, and the Veteran has not alleged he received any private treatment. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board acknowledges in his May 2009 written substantive appeal the Veteran alleged his June 2008 examination was not thorough enough. However, the Board finds the VA examination was thorough and adequate; the examiner reviewed the Veteran's medical history, as well as personally examined the Veteran and conducted all required testing. Moreover, the Veteran was also provided with an additional VA examination in June 2010, to address this concern. The Board finds this examination was also thorough and adequate as the examiner again reviewed the Veteran's medical history, as well as personally examined the Veteran and conducted all required testing. Neither the Veteran nor his representative has voiced any issue with the adequacy of subsequent examination. As such, the Board finds these examinations provide a sound basis upon which to base a decision with regard to the Veteran's claim. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs