Citation Nr: 1319840 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-43 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from March 1964 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California. This matter was previously before the Board in May 2011and January 2013 and was remanded for further development. It has now returned to the Board for further appellate consideration. As is discussed in further detail below, the Board finds that the VA substantially complied with the mandates of its remands and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The Veteran is service-connected for residuals of medial malleous fracture, left tibia with distal shaft fibula fracture with left fibula osteomyelitis, diabetes mellitus, bilateral peripheral neuropathy of the upper and lower extremities, lumbar disc disease with arthritis, left hip strain, and hearing loss disability. 2. The earliest clinical evidence of a cervical spine disability is approximately 40 years after separation from service. 3. The probative clinical evidence of record is against a finding that the Veteran has a cervical spine disability caused by, or aggravated by, service or a service-connected disability. 4. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has a cervical spine disability causally related to, or aggravated by, active service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability, to include as secondary to service-connected disability, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2002);38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in May 2008. VA also has a duty to assist the Veteran in the development of the claim. The claims file contains the Veteran's STRs, VA and private medical records, Social Security Administration (SSA) records, and the statements of the Veteran in support of his claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. VA has requested the Veteran to provide a completed VA Form 21-4142, Authorization and Consent to Release Information, for all treatment for his cervical spine (See May 2008, May 2011, and January 2013 VA correspondence); however, he has failed to provide proper authorization for VA to obtain records for his reported post-service chiropractic treatment. In January 2013, subsequent to VA's most recent attempt to obtain authorization from the Veteran, the Veteran submitted three copies of a VA Form 21-4142, however, he failed to list any treatment providers or any dates of treatment. Thus, the forms are of no assistance to VA. The duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based on the foregoing, the Board finds that VA does not have a further duty to assist the Veteran in obtaining any additional medical records. October 2012 and January 2013 VA examination reports are of record. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been afforded an adequate examination with opinion because the reports, taken together, include a clinical examination, an interview with the Veteran with regard to his symptoms and treatment, and rationale for the opinions proffered. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal criteria Service Connection in general Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of 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 C.F.R. § 3.307. The term "chronic disease", whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis and organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Service connection on a secondary basis Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran has been diagnosed with central spinal stenosis at levels C3-C6, and bilateral neural foraminal narrowing at levels C3-C7. (See 2007 private medical records.) Initially, the Board notes that the evidence does not reflect, and the Veteran does not contend, that he injured his cervical spine in service. Moreover, there is no competent credible evidence of record that the Veteran has a cervical spine disability causally related to, or aggravated by, active service. There is also no competent credible evidence of symptoms within one year of service. To the contrary, the Veteran reported to the October 2012 VA examiner that his neck pain began in approximately 1997 to 2002, more than 30 years after separation from service. Based on the foregoing, service connection for a cervical spine disability on a direct incurrence basis is not warranted. The Veteran avers that he has a cervical spine disability as secondary to his service-connected residuals of medial malleous fracture, left tibia with distal shaft fibula fracture with left fibula osteomyelitis. The Veteran is also service-connected for diabetes mellitus, bilateral peripheral neuropathy of the upper and lower extremities, lumbar disc disease with arthritis, left hip strain, and hearing loss disability. The Veteran underwent a VA examination in October 2012. The report reflects that the Veteran reported having been in three post-service motor vehicle collisions in which he injured his neck and received chiropractic treatment. He reported that his neck and back discomfort began approximately 10 to 15 years earlier than the October 2012 examination, with a gradual onset. The examiner opined that the Veteran's cervical spine disability was less likely than not incurred in, or caused by, service. The examiner's rationale was based, in part, on the lack of treatment for a spinal disability in service, and the Veteran's whiplash injuries after separation from service. A January 2013 examination report reflects the opinion of the examiner that it is less likely than not that the Veteran's cervical spine disability is causally related to, due to, or the result of the Veteran's service-connected disabilities. The examiner stated that the Veteran's cervical spine disability is the result of the Veteran's post-service whiplash injuries and has not been worsened beyond its natural progression. The Board also notes that the Veteran filed his claim for entitlement to service connection in 2008. For a claim that is filed on or after October 10, 2006, VA may not concede that a nonservice-connected disability was aggravated by a service-connected disability "unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury." 38 C.F.R. § 3.310(b) (2012). The Veteran is responsible for establishing a baseline level of disability in aggravation claims, and where "no baseline can be established, no aggravation can be demonstrated." Claims Based on Aggravation of a Nonservice-Connected Disability, 71 Fed. Reg. 52,744, 52,745 (Sept. 7, 1996). The claims file does not include a baseline level of severity for the Veteran's cervical spine disability; thus, aggravation is not conceded. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g. cervical spine pain). See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). To this extent, the Board finds that the Veteran is competent to report that he has current cervical spine pain or stiffness; however, he has not been shown to have the education, training, and experience necessary to provide a competent opinion as to etiology of the cervical spine disability in the present case. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case, cervical spine spinal stenosis and neural foraminal narrowing which is not noted until more than three decades after separation from service and with no evidence of an in-service injury. Nor is a lay person competent to provide a probative opinion as to whether the Veteran's cervical spine disability is as likely as not caused by, or aggravated by, his service-connected disabilities in light of the Veteran's post-service whiplash injuries, and in light of the education and training necessary to make a finding with regard to biomechanics and the relationship of musculoskeletal disabilities. The Board finds that such an etiology finding falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, there has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has a cervical spine disability causally related to service or to a service-connected disability, or aggravated by service or a service-connected disability. To the contrary, the evidence is against any such finding. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs