Citation Nr: 1320779 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-02 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to chronic lumbar strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1985 to November 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Travel Board hearing that was chaired by the undersigned Veterans Law Judge at the St. Petersburg RO in May 2009. A transcript of the hearing has been associated with the Veteran's VA claims folder. This matter has been before the Board in May 2010 and September 2011, when it was remanded for further development, including the provision of VA examinations. A review of the Virtual VA paperless claims processing system does not reveal any additional records that are pertinent to this appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's cervical spine disability did not have its onset in active duty service and is not otherwise related to active duty service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. 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). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Id. Veterans Claim Assistance Act (VCAA) The Veterans Claims Assistance Act (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of what is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012). The 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). All notice under the VCAA should be provided prior to an initial decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements: (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. See 38 U.S.C. § 5103(a) (West 2002 & Supp. 2011). Compliance with the first Quartuccio element requires notice of these five elements. See id., at 486. The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes assisting him in obtaining service treatment records (STRs) and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. The duty to notify has been satisfied. VCAA notice was sent to the Veteran in June 2004, February 2005, and October 2007, which also contained the notifications required by Dingess. The duty to assist has also been satisfied. The Veteran's STRs and post-service medical records have been associated with the file. The Veteran has been afforded VA examinations for his cervical spine disability, and the reports are included in the file. Due to the complexity of the medical issue at hand, the Board requested an opinion from a specialist (VHA opinion). This opinion and addendum is based on a thorough review of the Veteran's records, and is adequate for adjudicatory purposes. The Veteran was sent a copy of the VHA opinion in March 2013, and filed a statement in response, to which he waived review by the RO. In regard to the May 2010 and September 2011 remands, the Board finds that there has been substantial compliance with the remand directives, which included obtaining records and scheduling VA examinations. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has been afforded hearings before a Decision Review Officer (DRO) in October 2008 and a Veterans Law Judge (VLJ) in May 2009, during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the October 2008 and May 2009 hearings, the parties agreed that the issue under appeal was service connection for a cervical spine disability. Both the DRO and the VLJ asked specific question directed at the claim of service connection. Further, they both specifically sought to identify any pertinent evidence not currently associated with the claims. The Board observes that during the May 2009 hearing, the Veteran's representative asked if the Veteran's doctor had ever provided him with a positive nexus, thus it was clear that the Veteran and his representative understood what was lacking. To that end, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearings. As such, the Board finds that, consistent with Bryant, the DRO and the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) . Relevant Law and Regulations The Veteran contends that his cervical spine disability is a result of heavy lifting in service, which caused his lumbar spine disability. Alternatively, he argues that his cervical spine disability was caused by his lumbar spine disability. He asserts that he began having headaches in service, and that his neck started to hurt and his hands started feeling numb within a year from service. He avers that these three conditions (headaches, neck pain, and numb hands) are interconnected. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit held that a three-element test must be satisfied in order to establish entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Id. However, claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b). See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases"). Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Walker, 708 F.3d at 1338-1339. Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation." Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease"). A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. at 1338. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits. Id. For example, the Federal Circuit held in Walker that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as it found that the claimant's hearing loss was not among the chronic diseases listed in section 3.309(a)). Id. at 1336-37, 1340. Because the Veteran has been diagnosed with degenerative disc disease of the cervical spine, which is defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be supported by evidence of a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran did not complain of or receive treatment for his cervical spine or neck during active duty service. Upon entrance, he made no complaints of previous problems or pain, and his spine was clinically evaluated as normal. See Reports of Medical History and Examination dated August 22, 1985. He declined having a separation examination. After service in September 1990, the Veteran complained of numbness in his hands. He denied a neck injury, but did note that he had a history of back pain. A notation on the hand-written record appears to indicate the C-spine was within normal limits. See VA treatment record dated September 28, 1990. In February 1998, the Veteran sought treatment for neck pain. He indicated that he hurt himself while working on an air duct. See Accident information sheet dated February 18, 1998. He also indicated his neck pain had sudden onset, which he noticed when he woke up on January 9, 1998. See Dr. B.M. dated February 20, 1998. He later attributed his pain to his work cleaning air conditioners. See Dr. J.L.C. dated April 22, 1998. An MRI shows a mild disk protrusion at the C5/6 vertebrae, and slight bulging at the C6/7 vertebrae. See Magnetic Resonance Center dated February 27, 1998. The Veteran complained of a history of chronic neck pain in April 1998. X-rays were negative, and no fracture was seen. See Coral Springs Medical Center dated April 30, 1998. The Veteran's private physician opined that his neck pain is related to a back injury. See Dr. G. Gutierrez dated May 6, 1998. In March 1999, the Veteran complained of pain in his neck and headaches for the past year. It was noted he had job-related injury and was seeking a diagnosis. See VA treatment dated March 8, 1999. In April 1999, the Veteran noted he had a ten year history of neck pain. See VA treatment dated April 19, 1999. In October 1999, the Veteran attended a private orthopedic consultation. He told the physician that he just began to have pain between his shoulder blades, without attributing it to any incident. He later remembered that around January and February of 1998, he had been lowering a heavy object with a rope, and it jerked, hurting his right arm. He waited a few days before seeking medical attention, and complained of neck and back pain since the injury. He said he never had experienced neck pain or shooting pain prior to this worker's compensation accident. He was assessed as having myofascial pain syndrome. See Dr. H.J.R. dated October 4, 1999. In July 2000, the Veteran explained that he was previously employed, but got hurt on the job causing an injury to his cervical spine. He asked for a letter to send to his disability insurance company. See VA treatment dated July 14, 2000. In a December 2001 VA examination pertaining to the lumbar spine, the Veteran explained to the examiner that he also had upper back pain after hurting his back three years prior. See VA examination dated December 18, 2001. In February 2003, the Veteran underwent an MRI for his cervical spine. He was found to have mild bulging at the C6-7 vertebra, without significant neural foramina or spinal canal stenosis. See MRI cervical w/o contrast dated February 10, 2003. The Veteran had an EMG in March 2004. It was interpreted as showing electrodiagnostic evidence of peripheral neuropathy, and radiculopathy of the four extremities. The Veteran was unable to relax his paraspinal muscles but there were no denervations potentials noted. See EMG consult response dated March 18, 2004. In March 2006, the Veteran attended a neurology consultation, complaining of a long history of intermittent neck pain and hand numbness. The impression was neuropathy and polyradiculopathy with signs of corticospinal involvement primarily in the lower extremities, of unclear etiology. The physician listed possible etiology as myeloradiculopathy in a patient with herpes, multiple sclerosis, vitamin B12 deficiency, or other inflammatory cause. See Neurology consultation dated March 2, 2006. This consultation report was added to because another EMG was performed in June 2006. It was interpreted as showing normal insertional activity with no positive waves, fibrillations, or fasciculations. Motor unit morphology and recruitment were normal. Continuing firing of the motor units was not seen in the paraspinal muscles although the patient was complaining of spasms in the thoracic paraspinal muscles. The impression was that there was no evidence of peripheral neuropathy but there was evidence of bilateral carpal tunnel syndrome. See Addendum dated June 27, 2006. At the October 2010 VA examination , the Veteran was diagnosed with degenerative disease of the cervical spine. The VA examiner opined that it was not likely that the numbness in the Veteran's hands in 1990 was due to his cervical spine. Numbness in the hands can be caused by a number of things, but without some indication that his cervical spine was troublesome at the time, he could not attribute the numbness to it. He also indicated that there was nothing in the medical literature the has shown a connection between degenerative disease of the cervical spine and lumbar strain. See VA examination dated October 12, 2010. At the October 2011 VA examination, the Veteran was diagnosed with chronic cervical spondylosis without myelopathy and bulging cervical disks. The VA examiner did not think that his cervical spine disability was caused or aggravated by the lumbar spine strain, and noted that the Veteran's cervical complaints mainly followed his worker's compensation accident. He also noted that he knew of no scientific evidence that supported the Veteran's contention that moving his eyeballs exacerbates his neck pain. See VA examination dated October 17, 2011. Because the VA examination reports did not adequately address the issue of etiology of the Veteran's cervical spine disability, the Board obtained a supplemental medical opinion from a neurologist. The doctor, after reviewing the record, said that it appeared his cervical complaints stemmed from the work injury sustained in 1998, even though the Veteran testified that his neck started causing him problems ten months following separation from service. He did not think it was likely that the cervical spine disability started in or was directly due to service. See VHA opinions dated November 26, 2012 & February 12, 2013. In regard to whether the cervical spine disability is due to or aggravated by the lumbar spine disability, he also did not think a relationship was likely. He noted that medical evidence showed carpal tunnel syndrome, which would explain the Veteran's numb hands in 1990. He reviewed the EMG reports, which showed no radiculopathy and normal spinal muscles, and opined that it was unlikely the cervical spine complaints were also causing the hand numbness. He also said insertional activity was normal during the EMG, and the Veteran had normal neurologic examinations that showed no cervical thoracic radiculopathy, leading him to conclude that the lumbar back disability is not causing the cervical spine pain. He commented on Dr. Gutierrez's opinion that the neck pain is related to a back injury, but was unable to determine the basis for that opinion from the record. He did not find any evidence to suggest a relationship between the Veteran's cervical and lumbar spine disabilities. Id. In regard to service connection, the Veteran has been diagnosed with degenerative disease of the cervical spine, chronic cervical spondylosis, and bulging cervical disks. Further, VA has previously service-connected a lumbar spine disability that was incurred by heavy lifting in service, thus the Board concedes that the Veteran took part in activities that involved heavy lifting. The remaining inquiry is whether there is a nexus, or relationship, between any of his current diagnoses and active duty service or a service-connected disability. The preponderance of the evidence weighs against such a relationship. The VHA examiner opined that the evidence of record did not support the Veteran's testimony that his neck started bothering him ten months after service, because his complaints and treatment stemmed from the 1998 job-related incident. Indeed, the Board observes that his cervical spine was found to be normal in September 1990, and that records show both the Veteran and his physicians attributed his cervical spine disability to the January 1998 job-related injury. The VHA examiner also opined the Veteran's service-connected lumbar spine disability did not cause or aggravate the cervical spine disability. He said that EMG reports showing normal spinal muscles with normal insertional activity, and no cervical thoracic radiculopathy, led him to this conclusion. The Board finds the VHA opinions, read in conjunction with one another, to be both competent and credible, and accords them significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from the factually accurate, fully articulated, and sound reasoning for the conclusion). In contrast, the positive nexus opinion written by Dr. Gutierrez is not probative to the issue under appeal. His opinion is conclusory, with no supporting explanatory rationale. Further, it is not clear that he is attributing the Veteran's cervical spine disability to active duty service or a service-connected disability, in that he simply says that it is related to a "back injury." The record contains evidence of heavy lifting in service and job-related back injuries attributed to lowering a heavy object and fixing air conditioners and air ducts, all of which preceded Dr. Gutierrez's May 1998 opinion. The Veteran's lay statements are not probative to the issue either. In regard to onset, he currently alleges that his neck has been painful since ten months after separation from service; however, records from September 1990 contradict that assertion. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). In April 1999, he told his physician he had a ten-year history of neck pain, but in October 1999, he said he had never had neck pain prior to the worker's compensation accident in January 1998. Additionally, the records indicate the Veteran complained of a sudden, acute onset of neck pain, but in statements he now says that his neck pain started slowly and built in intensity. A person is competent to report on their own experiences, including reporting symptoms that are non-medical in nature. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, though, the Veteran's statements regarding continuous symptomatology or the onset of symptoms are not credible, as they are not consistent with each other. Rucker v, Brown, 10 Vet. App. 67 (when determining whether lay evidence is satisfactory, the Board may consider its consistency with other evidence submitted on behalf of the Veteran). The Veteran has also asserted that his doctor told him that his neck hurts because of the muscles that span the spine. The connection between what a physician said and a layman's account of what he purportedly said, filtered through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute probative medical evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). He has further submitted statements asserting that muscle spasms travel so that the lumbar spine would affect the cervical spine. The Veteran, as a lay person, has not been shown to have the medical or scientific expertise to render a competent opinion as to whether cervical spine disability is caused or affected by his lumbar spine disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Indeed, his statements have been investigated by a neurologist who opined against such a scenario. Jandreau, supra. Accordingly, the preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply, and the Veteran's service connection claim for a cervical spine disorder must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a cervical spine disability is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs