Citation Nr: 1319829 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-18 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 1. Entitlement to service connection for spondylosis of the cervical spine. 2. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the lumbar spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1995 to October 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for spondylosis of the cervical spine and degenerative joint disease of the lumbar spine. These issues were remanded in April 2011 and August 2012 for further development. In an April 2013 rating decision, the RO granted service connection for degenerative joint disease of the lumbar spine and assigned a 10 percent rating, effective November 29, 2006. In June 2013, the Veteran's representative submitted a statement to the Board expressing disagreement with the initial 10 percent rating for degenerative joint disease of the lumbar spine. Additional action regarding that claim is addressed in the Remand section below. FINDINGS OF FACT 1. The Veteran has a current diagnosis of spondylosis (degenerative osteoarthritis) of the cervical spine. 2. The Veteran sustained an acute cervical muscle strain in service which resolved without residuals. 3. Symptoms relating to a cervical spine disorder were not chronic in service and have not been continuous since service separation. 4. Spondylosis of the cervical spine did not manifest in service or within one year of service separation. 5. The Veteran's cervical spine disability is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for spondylosis of the cervical spine have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Before addressing the merits of the claims, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The VCAA duty to notify was satisfied by a letter sent to the Veteran in January 2007. The letter fully addressed the notice elements and advised the Veteran of the information required to substantiate the claim and of his and VA's respective duties for obtaining evidence. It also informed the Veteran of how VA determined disability ratings and effective dates. See Dingess/Hartman, 19 Vet. App. at 490-491. The letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in January 2008. Nothing more is required. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. app. 128 (1998). None is found by the Board. Next, VA has a duty to assist a Veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records and post-separation VA and private treatment records with the claims file. No outstanding evidence, to include the records from any post-service treatment, has been identified. Additionally, the case was remanded in April 2011 and August 2012 so that the RO/ Appeals Management Center (AMC) could endeavor to obtain the Veteran's additional medical records and schedule the Veteran for appropriate VA examinations. The Veteran was afforded a VA examination in January 2013. Further, the medical evidence received pursuant to the August 2012 remand pertains only to the Veteran's lumbar spine disability, which, as noted above, is being referred to the AOJ for consideration. As such, the Board finds that the evidentiary development requested in the August 2012 Board remand has been accomplished, and the claim was readjudicated in an April 2013 supplemental statement of the case. The Board concludes that the RO/AMC substantially complied with the August 2012 remand directives. See D'Aires v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall v. West, 11 Vet. App. 268, 271 (1998) violation when the examiner made the ultimate determination required by the Board's remand). As noted above, the Veteran underwent a VA examination for his cervical spine disorders in January 2013. The January 2013 VA examination is found to be adequate in addressing the necessary questions to be answered regarding the Veteran's cervical spine disorder. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The opinion rendered following the examination was made in connection with review of the claims folder, interview of the Veteran, and physical examination. The opinion provided was factually accurate, fully articulated, and provided sound reasoning for the conclusions. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). As such, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F3d. 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria for Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). For certain chronic diseases, including spondylosis (arthritis) service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word "chronic" will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service Connection for Spondylosis of the Cervical Spine In a statement dated December 2008, the Veteran asserted that his cervical spine disorder was directly related to his military service. In a more recent statement provided to the January 2013 VA examiner, the Veteran reported that although he had always had issues with his neck, he did not believe that he injured his neck in service. Further, he stated that he has never wished to claim his neck as a service-connected condition. Despite these contentions, a written withdrawal of the current appeal as required under 38 C.F.R. § 20.204(b) (2012) has not been received; therefore, the Board will adjudicate the issue based on the evidence of record, to include the Veteran's statements. Service treatment records reveal treatment for and a diagnosis of cervical muscle strain in June 1999. The Veteran reported that he strained his neck while doing pull-ups. A diagnosis of cervical muscle stain was noted and the Veteran was treated with Motrin and warm compresses. The Veteran was instructed to return for treatment if the pain continued. The remaining service treatment records do not show that the Veteran returned for follow-up treatment and no other complaints relating to his cervical spine were noted. In the September 1999 service separation examination, conducted only three months after the cervical muscle strain, the Veteran was noted as having a normal spine on clinical evaluation. For these reasons, the Board finds that the in-service cervical muscle strain was an acute and transitory injury resolving in service and was not chronic. Further, the weight of the probative evidence demonstrates that cervical spine spondylosis did not manifest to a compensable degree within one year of service separation. The weight of the evidence demonstrates no spondylosis symptoms during the one year period after service, and no diagnosis or findings of arthritis of any severity during the one year post-service presumptive period. See 38 C.F.R. §§ 3.307, 3.309. Instead, the evidence shows that the first assessment of degenerative osteoarthritis was in the November 2006 VA x-ray report, seven years after service separation. In the January 2013 VA examination, the Veteran denied persistent cervical spine symptoms until one year prior, i.e., 13 years after service separation. For these reasons, the Board finds that spondylosis did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for arthritis are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309. Next, the Veteran's statements have been inconsistent regarding continuous symptoms since service separation. The Board is required to assess the credibility and probative weight of all relevant evidence. In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr, 21 Vet. at 307. The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d at 133; see also Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011)(Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony simply because a claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Veteran is competent to report symptoms such as cervical spine pain and stiffness because these symptoms require only personal knowledge as they come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Board finds that there are inconsistencies in the Veteran's reports of continuous symptomatology, thus, his reports are of questionable probative value. For example, in statements dated December 2008 and May 2010 the Veteran stated that his cervical spine disorder was directly related to service. During the most recent January 2013 VA examination, he reported that he never wished to claim his cervical spine symptoms as a service-connected condition. He further stated that he had always had issues with his neck, however, he also reported that his cervical spine disorder first began last year (i.e., 2012), 13 years after service. See Maxson, 230 F.3d at 1333 (indicating that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service). For these reasons, the Board finds the Veteran's statements regarding continuous cervical spine symptoms inconsistent, and therefore, not credible. As such, the Board finds that the weight of the competent and probative evidence demonstrates that symptoms of a cervical spine disorder have not been continuous since service separation. Next, service connection may be granted if a medical nexus exists between the in-service injury and the current cervical spine disorder. In this case, the Veteran was afforded a VA examination in May 2007 which confirmed the presence of cervical spondylosis. However, the examiner did not provide an opinion on the relationship between the currently diagnosed cervical spine disorder and the Veteran's military service. The file was returned to him in November 2007 so that the requested opinions could be provided; nevertheless, an opinion was not included in the addendum report. Accordingly, the Board affords little probative weight to the May 2007 VA examination report. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008); 38 C.F.R. § 4.2 (2010); see also Barr, 21 Vet. App. at 312 (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In May 2011, the Veteran was afforded another VA examination to assist in determining whether his cervical spine disorder was related to service. The May 2011 examination indicated, in pertinent part, that the Veteran's cervical spine pain was not service related because the Veteran was treated only one time in military service for cervical spine strain which involves the muscles of the neck, and it is "well known" that muscle strains do not cause spinal damage. The VA examiner did not address the question of whether the in-service injury constituted the initial manifestation of the current cervical spine disorder. The May 2011 examination report is therefore deemed to be of little probative value. See Nieves-Rodriguez, 22 Vet App 295; see also Barr at 312. Instead, the Board places high probative value on the January 2013 VA examination report and opinion. The examiner reviewed the claims file, conducted an in-person examination, set out the Veteran's history, and provided an opinion based on a well-reasoned rationale. The examiner opined that the Veteran's cervical spine disorder was less likely than not related to his military service. The examiner based his opinion, in pertinent part, on the fact that the Veteran stated that he did not wish to seek service connection for his cervical spine disorder and denied significant and persistent neck symptoms until 2012. For these reasons, the Board finds that the weight of the evidence demonstrates that the Veteran's cervical spine spondylosis is not etiologically related to service. Accordingly, and based on the foregoing, the weight of the evidence is against the claim for service connection for spondylosis of the cervical spine. As such, the appeal must be denied. ORDER Service connection for spondylosis of the cervical spine is denied. REMAND In April 2013, the RO granted the claim for service connection for degenerative joint disease of the lumbar spine and assigned an initial 10 percent evaluation. In correspondence received in June 2013, the Veteran, through his representative, contended that a higher initial rating was warranted. VA regulations require that a Notice of Disagreement must be sent to the VA office from which the claimant received notice of the determination being appealed, unless notice has been received that the applicable VA records have been transferred to another VA office. See 38 C.F.R. § 20.300 (2012). Here, the Notice of Disagreement was sent to the Board instead of the RO. Nevertheless, because the Veteran's claims file was transferred to the Board, it is reasonable for the Veteran to believe that his Notice of Disagreement would be accepted by the Board. In these situations, where a Notice of Disagreement is filed, but a Statement of the Case has not been issued, the Board must remand the claim to the agency of original jurisdiction (AOJ) to direct that a Statement of the Case be issued. See 38 C.F.R. §19.9(c) (2012); Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the appeal for an initial rating in excess of 10 percent for degenerative joint disease of the lumbar spine is REMANDED for the following action: Issue a Statement of the Case pertaining to the issue of entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the lumbar spine. In connection therewith, provide the Veteran with appropriate notice of his appellate rights. The Veteran is reminded that, to vest the Board with jurisdiction over this issue, a timely Substantive Appeal must be filed after receiving the Statement of the Case. See 38 C.F.R. § 20.202 (2012). If, and only if, the Veteran perfects the appeal to any issues, the case must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The remanded claims 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. 2011). ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs