Citation Nr: 1320343 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 07-21 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a cervical spine disorder, to include as secondary to burst compression fracture of L1, status post spinal fusion of T12-L2 with Harrington Rod placement at T11-L3, and with height loss and anterior wedging of L1 vertebral body. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from December 1992 to February 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Milwaukee, Wisconsin Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for a cervical spine condition as secondary to the service-connected burst compression fracture of L1, status post spinal fusion of T12-L2 with Harrington Rod placement at T11-L3, and with height loss and anterior wedging of L1 vertebral body. The jurisdiction of this matter now lies with the Huntington, West Virginia RO. In December 2010, the Board remanded the Veteran's claim for additional development, to include obtaining treatment records and scheduling the Veteran for a VA examination; although that development was accomplished, the RO failed to issue an supplemental statement of the case (SSOC); thus, there was not substantial compliance with the remand directives of December 2010. Stegall v. West, 11 Vet. App. 268 (1998). In March 2013, the Board remanded this matter for an SSOC to be issued. Because an SSOC was issued in April 2013, there has been substantial compliance with the remand directives of March 2013. Stegall v. West, supra. FINDING OF FACT The evidence of record preponderates against a finding that the Veteran has a cervical spine disability related to his active military service or any incident therein, or that it is the result of a service-connected disability, on either a causation or aggravation basis. CONCLUSION OF LAW A cervical spine disability was not incurred in or aggravated by service, cervical spine arthritis may not be presumed to be and a cervical spine disability is not shown to be due to, the result of, or aggravated by the service-connected cervical spine disorder, to include as secondary to burst compression fracture of L1, status post spinal fusion of T12-L2 with Harrington Rod placement at T11-L3, and with height loss and anterior wedging of L1 vertebral body. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or SSOC. Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the United States Supreme Court (Supreme Court) reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in December 2004 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. This letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board also notes that the RO sent the Veteran a letter in June 2008 informing him of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all identified and available service and post-service treatment records for the Veteran, to include updated VA treatment records obtained after the Board's remand in December 2010. Further, the record reflects that the Veteran underwent VA examinations in August 2004 and March 2008; however, those VA examiners were not specifically asked to provide an opinion regarding whether he had a cervical spine disorder, and if so, whether it was secondary to a service-connected spine disability. Thus, these VA examination reports are not adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). In December 2010, the Board remanded this matter in an attempt to have the Veteran scheduled for a VA examination to determine whether he had a cervical spine disorder secondary to his service-connected lumbar and thoracic spine disability. Although he was scheduled for a VA examination in January 2011, there is a notation that the Veteran failed to report and did not call in. Pursuant to 38 C.F.R. § 3.159(c)(4), VA will provide a medical examination or obtain a medical opinion if VA determines it is necessary to decide the claim. As delineated in 38 C.F.R. § 3.159(c)(4) , a VA examination to address the question of etiology is required when the Veteran presents a claim for service connection in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the Veteran indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the Board determined in the December 2010 remand that an additional VA examination was necessary, and had the Veteran scheduled for a VA examination in January 2011, the record reflects that the Veteran was notified of, but did not report for, this examination. In light of the foregoing, although another VA examination was warranted based on the Board's prior remand, because neither the representative (in the most recent informal hearing presentation) nor the Veteran have provided any specific or pertinent reasons as to why he failed to respond or report for the VA examinations, and because there has been no further response from the Veteran and no showing of good cause, another VA examination need not be scheduled and no additional assistance is required at this point to fulfill VA's duty to assist. 38 C.F.R. § 3.655. The Board concludes that the duty to assist has been satisfied in this regard. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background Service treatment records (STRs) reveal that the Veteran injured his lumbar spine in a parachute accident in service, and, thereafter underwent surgery to the thoracic and lumbar spine. Service connection has been granted for burst compression fracture of L1, status post spinal fusion of T12-L2 with Harrington Rod placement at T11-L3, and with height loss and anterior wedging of L1 vertebral body. On a VA examination in August 2004, the Veteran reported having neck pain months after his back surgery in August 1996, and that recently he had more pain in the neck, upper back, and lower back. An x-ray of the cervical spine revealed very minor hypertrophy at C4-5 facet joint, and loss of cervical lordosis. The examiner indicated that the Veteran's neck pain was muscle spasms only and there were no pathological findings. The examiner further indicated that the cervical spine had no pathology and no diagnosis. VA treatment records, beginning in May 2006, showed that the Veteran complained of cervical spine pain. Thereafter, he was diagnosed with degenerative joint disease of the cervical spine. III. Analysis 1. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For certain disabilities, such as arthritis, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. 38 U.S.C.A. § 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307. Further, service connection may also 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Lay witnesses are also competent to testify as to some matters of diagnosis and etiology; when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). 2. Discussion The Veteran contends his current cervical spine disability is a result of his service-connected burst compression fracture of L1, status post spinal fusion of T12-L2 with Harrington Rod placement at T11-L3, with height loss and anterior wedging of L1 vertebral body. Although the Veteran has primarily contended that his cervical disability is related to his service-connected lumbar and thoracic disabilities, the Board will also consider whether service connection is warranted on a direct or presumptive basis. In that regard, the Board notes that a current disability of degenerative joint disease of the cervical spine has been shown. STRs do not, however, reveal any complaint of, treatment for, or diagnosis of a cervical or neck disability. Degenerative joint disease of the cervical spine is not shown within one year of service separation in February 1998. What is missing for the claim for direct service connection is competent or credible lay or medical evidence of a link between the Veteran's current cervical disability and active service. Here, the Veteran has not submitted or identified any medical opinion or other medical evidence which would support an etiological relationship between a cervical disability and service. Moreover, as noted above, he did not report for a VA examination in this matter. In light of this evidentiary posture, the Board finds that the preponderance of the evidence is against a claim of direct/presumptive service connection for a cervical/neck disability. Gilbert v. Derwinski, supra. With regard to the claim for secondary service connection, the Board notes that what is missing from the record is competent medical evidence showing that the Veteran's cervical disability might be related to a service-connected disability, on either a causation or aggravation basis. Here, while service connection has been established for burst compression fracture of L1, status post spinal fusion of T12-L2 with Harrington Rod placement at T11-L3, and with height loss and anterior wedging of L1 vertebral body, there is simply no competent medical evidence linking this disability to the Veteran's cervical disability. Further, the Veteran has not submitted or identified any medical opinion or other medical evidence regarding an etiological relationship that supports either of such secondary service connection claims. Moreover, as noted above, the Board attempted to obtain a VA examination in this matter; however, the Veteran failed to report for such examination. The Board recognizes that the Veteran has sincerely contended that his cervical disability is related to his service-connected burst compression fracture of L1, status post spinal fusion of T12-L2 with Harrington Rod placement at T11-L3, and with height loss and anterior wedging of L1 vertebral body. As noted above, lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation; however, the Board does not find that the etiology or aggravation of cervical degenerative arthritis to be subject to lay diagnosis. See Kahana v. Shinseki, supra; see also Jandreau v. Nicholson, supra. The preponderance of the evidence is therefore against the claim of service connection for a cervical spine disorder, on both a direct or presumptive basis and as secondary to the service-connected burst compression fracture of L1, status post spinal fusion of T12-L2 with Harrington Rod placement at T11-L3, and with height loss and anterior wedging of L1 vertebral body. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a cervical spine disorder, to include on a secondary basis, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs