Citation Nr: 1321184	
Decision Date: 07/02/13    Archive Date: 07/12/13

DOCKET NO.  09-49 558	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to an initial compensable disability rating for service-connected residuals, right wrist strain prior to February 3, 2011.

2.  Entitlement to an initial disability rating in excess of 10 percent for service-connected residuals, right wrist strain from February 3, 2011.

3.  Entitlement to service connection for a cervical spine disability.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty from July 1989 to July 2000.

This appeal arises before the Board of Veterans' Appeals (Board) from rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

Service connection for residuals, right wrist strain was granted in a January 2008 rating decision and a noncompensable disability evaluation was assigned, effective March 14, 2007.  In a February 2012 rating decision, the RO increased the evaluation to a 10 percent rating, effective February 3, 2011.  The Board notes that since the increase to 10 percent did not constitute a full grant of the benefits sought, the increased rating issue for the period since February 3, 2011 remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).


FINDINGS OF FACT

1.  Prior to February 3 2011, the Veteran's right wrist strain has been manifested by decreased manual dexterity, problems with lifting and carrying, decreased strength in the upper extremity and pain, but not by palmar flexion in line with the forearm or limitation of dorsiflexion to less than 15 degrees in the wrist.

2.  Since February 3 2011, the Veteran's right wrist strain has been manifested by painful motion limited, at worst, to dorsiflexion to 20 degrees, palmar flexion to 14 degrees, radial deviation to 9 degrees, and ulnar deviation to 13 degrees; the weight of the evidence is against a finding of ankylosis at any time during the course of the appeal. 

3.  Degenerative disc disease of the cervical spine was not manifest in service, was not manifest within one year of separation and is not related to service.


CONCLUSIONS OF LAW

1.  Prior to February 3, 2011, the criteria for an initial compensable evaluation for residuals right wrist strain have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5024, 5215 (2012).

2.  Since February 3, 2011, the criteria for an initial evaluation in excess of 10 percent for residuals right wrist strain have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5024, 5215 (2012).

3.  Degenerative disc disease of the cervical spine was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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.  Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal.  A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

The RO provided notice to the Veteran in a June 2007 letter, prior to the date of the issuance of the appealed January 2008 rating decision.  The June 2007 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  

The June 2007 letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Furthermore, for initial rating claims or claims for an earlier effective date, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating or the effective date of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal.  Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the reports of December 2007, January 2008, February 2011 and January 2013 VA examinations.  The the most recent February 2011 and January 2013 VA examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record.  As such, the Board finds that the February 2011 and January 2013 VA examination reports are sufficient upon which to base a decision with regard to this claim.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on his behalf.  The Board finds that no additional RO action to further develop the record on the claims is warranted.

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 


Entitlement to a Higher Evaluation for Right Wrist Disability

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). 

Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012).

The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012).  Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing her claim when her disability may have been more severe than at other times during the course of his appeal.  See Fenderson v. West, 12 Vet. App. 119 (1999).

The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2012) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45  (2012).  See, e.g., DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The provisions of 38 C.F.R. §4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  See 38 C.F.R. § 4.40 (2012). 

The provisions of 38 C.F.R. §4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  See 38 C.F.R. § 4.59 (2012).  Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately.  See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). 

In the instant case, the Veteran's service-connected right wrist disability is rated under diagnostic code 5215 applicable to limitation of motion of the wrist.  See 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2012).  The Board notes that a normal range of motion in the wrist is dorsiflexion (extension) to 70 degrees, palmar flexion to 80 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees.  See 38 C.F.R. § 4.71, Plate I (2012). 

Handedness for the purpose of a dominance rating is determined by the evidence of record, or by testing on VA examination.  See 38 C.F.R. § 4.69 (2012).  Only one hand is considered dominant.  The evidence of record establishes that the Veteran is right-handed, and as such, major hand disability ratings are applicable.

A noncompensable evaluation is assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

Under diagnostic code 5215, a 10 percent rating is warranted for either the major or minor limb when palmar flexion is limited to a position in line with the forearm, or when dorsiflexion is less than 15 degrees.  See 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2012).  

A 10 percent rating is the only, and therefore the maximum, rating available under this code.  In the instant case, from February 3, 2011 the Veteran is in receipt of the maximum 10 percent evaluation under this diagnostic code, and the Board, therefore, will consider whether the Veteran is entitled to a greater rating under other diagnostic codes. 

Diagnostic code 5214 provides higher evaluations when ankylosis of the wrist is present.  "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure."  See Colayong v. West, 12 Vet. App. 524, 528   (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995).  A 50 percent rating is warranted when there is unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation of the major wrist.  A 40 percent rating is warranted when there is ankylosis of the major wrist in any other position, except favorable.  A 30 percent rating is warranted when there is favorable ankylosis in 20 degrees to 30 degrees dorsiflexion in the major wrist.  See 38 C.F.R. § 4.71a, Diagnostic Code 5214 (2012).

The Board notes that there are additional diagnostic codes for the evaluation of wrist and forearm disabilities.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5205-5213 (2012).  The medical evidence of record, however, does not indicate the Veteran's service-connected disability includes any of the symptomatology associated with the wrist and forearm disorders described in those diagnostic codes.

Factual Background and Analysis

The Veteran underwent a general VA examination in December 2007.  It was noted that the Veteran had residuals of a right wrist strain that had been stable since he initially injured his wrist during physical activity in the early 1990's.  There was no overall decrease in strength and dexterity of the right hand and there were no other hand symptoms.  The examiner did indicate that there were flare-ups of hand disease with the precipitating factors of increased or unusual activities.  Anti-inflammatory medications were an alleviating factor.  These flare-ups occurred weekly from 3 to 7 days and the Veteran reported that he had to stop what he was doing during a flare-up.  On examination, there was no angulation, ankylosis or amputation of one or more digits of the hand.  Neurologic and sensory examinations were normal.  The diagnosis was myalgia of the right wrist which was the residual of a right wrist strain.  The examiner noted that the Veteran experienced decreased manual dexterity, problems with lifting and carrying, decreased strength in the upper extremity and pain.  It had severe effects on sports and moderate effects on exercise.  It had mild effects on chores, shopping and recreation and no effects on travelling, feeding, bathing, dressing, toileting, grooming and driving.

The Veteran underwent a VA examination in January 2008.  He reported that his right wrist became painful in the mid 1990's when he noticed a "pop" in the wrist.  He was diagnosed with a right wrist cyst that was treated with aspiration.  This helped but he still noted occasional popping and snapping as well as pain.  He reported that his wrist was currently painful 1 to 2 times a week at a level of 3-4/10.  It was brought on by activity and was treated with Ibuprofen.  On examination, the right wrist showed no swelling, warmth, ereythema or deformity.  Motor power was 5/5 for finger flexion, extension, abduction and opposition, wrist dorsiflexion and volar flexion, forearm pronation and supination, elbow flexion and extension, and shoulder abduction, adduction, external rotation and internal rotation bilaterally.  Sensation was intact over the radial, median, ulnar and axillary nerve distributions.  Right wrist motion included dorsiflexion of 0 to 80 degrees and volar flexion of 0 to 70 degrees.  Right forearm motion included pronation of 0 to 90 degrees and supination of 0 to 70 degrees.  There was mild tenderness over the ulnar aspect of the right wrist.  The remainder of the right wrist was nontender.  There was no crepitus with motion.  Following greater than three repetitions of motion, there was no additional limitation by pain, fatigue, weakness or lack of endurance.  X-rays of the right wrist were normal.  

The Veteran underwent a VA examination on February 3, 2011.  The Veteran reported that he received fair response from his pain relievers for his right wrist condition.  The joint symptoms included pain, instability, giving way, stiffness, weakness, decreased speed of joint motion, warmth, swelling and tenderness and flare-ups of joint disease.  Symptoms did not include deformity, incoordination, locking episodes or effusion.  The Veteran described flare-ups as severe and occurring weekly from 3 to 7 days.  Precipitating factors included increased or unusual physical activities and inclimate weather.  Alleviating factors included bracing, pain medications and warmth.  The Veteran reported that his wrist hurt 3 to 4 times a week.  There were no constitutional symptoms of arthritis and no incapacitating episodes of arthritis.  He used a brace intermittently but frequent.  On examination, there was tenderness, pain at rest and guarding of movement.  There was evidence of pain with active motion on the right side as right dorsiflexion was from 0 to 38 degrees, right palmar flexion was from 0 to 27 degrees, right radial deviation was from 0 to 16 degrees and right ulnar deviation was from 0 to 19 degrees.  There was additional limitation of motion with repetitive motion due to pain.  After repetitive motion, right dorsiflexion was from 0 to 20 degrees.  Right palmar flexion was from 0 to 14 degrees.  Right radial deviation was from 0 to 9 degrees and right ulnar deviation was from 0 to 13 degrees.  There was no joint ankylosis.  X-rays of the right wrist were normal.  The Veteran was employed as a technician at a waste water treatment plant.  He lost less than a week of work over the past 12 months due to joint pain.  The diagnosis was chronic right wrist strain which was a residual of a right wrist strain.  This resulted in significant effects on his usual occupation as he had decreased manual dexterity, problems with lifting and carrying, decreased strength of the upper extremity and pain.  As a result he was assigned different work duties.  The right wrist has moderate effects on sports and recreation, mild effects on chores, shopping and exercise and no effects on traveling, feeding, bathing, dressing, toileting, grooming or driving.

Period Prior to February 3, 2011

Based on the record, the Board finds that initial compensable evaluation for the period prior to February 3, 2011 for the Veteran's right wrist disability is not warranted.  For this time period, the Veteran has not demonstrated limitation of palmar flexion in line with the forearm, or limitation of dorsiflexion to less than 15 degrees in the right wrist to warrant a 10 percent disabling.  See 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2012).  The medical evidence of record shows that the Veteran had dorsiflexion of 0 to 80 degrees and volar flexion of 0 to 70 degrees at his January 2008 VA examination, and other than reported decreased manual dexterity, problems with lifting and carrying, decreased strength in the upper extremity and pain, examinations of the hands and wrists were found to be normal.  Therefore, a compensable initial rating for a right wrist disability is not warranted prior to February 3, 2011.

In considering the applicability of other Diagnostic Codes, the Board finds that Diagnostic Codes 5214 (ankylosis of the wrist), 5228 (limitation of motion of the thumb), 5229 (limitation of motion of the index or long finger), 5230 (limitation of motion of the ring or little finger), and 5307 (flexion of wrist and fingers) are not applicable because the medical evidence does not show that the Veteran has any of those conditions.  Specifically, no treatment record or any VA examination report demonstrate any objective finding of ankylosis, muscle injury, limitation of motion of the individual fingers, or nonunion or malunion of the radius or ulna.  Furthermore, sensory and neurological testing of the right upper extremities was normal.  Therefore, the Diagnostic Codes relating to neurological impairment are also not applicable in this case.

The Board has also considered whether a higher disability evaluation is warranted due to 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, 4.45.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  There is no evidence that the Veteran's right wrist had additional limitation of motion due to pain, weakness, fatigability, lack of endurance, or incoordination upon repetitive use prior to February 3, 2011. 

The Board notes that during his December 2007 VA examination, the examiner indicated that there were flare-ups of hand disease with the precipitating factors of increased or unusual activities.  Flare-ups occurred weekly from 3 to 7 days and the Veteran reported that he had to stop what he was doing during a flare-up.  However, the examiner also noted that there was no overall decrease in strength and dexterity of the right hand and there were no other hand symptoms.  Additionally, at his January 2008 VA examination, the Veteran reported that he only had pain 1 to 2 times a week at a 3-4/10 level.

Thus, based on the Veteran's reported history, his flare-ups are relatively infrequent and fairly short in duration.  Therefore, even if there was any additional limitation of motion during such flare-ups that was extreme, based on the frequency and duration of such episodes, the Board finds that the overall impairment resulting from his right wrist disability would still more closely approximate a noncompensable rating for the period prior to February 3, 2011.

With no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion even considering subjective symptoms such as pain, the Board concludes that the greater weight of evidence is against assigning an initial compensable evaluation prior to February 3, 2011 as contemplated by the holding in Deluca. 

Period since February 3, 2011

As noted above, a 10 percent evaluation is the maximum evaluation allowed under Diagnostic Code 5215.  As the Veteran is already assigned a 10 percent rating under this diagnostic code, an increased rating cannot be assigned under this diagnostic code. 

As noted above, when considering the applicability of other Diagnostic Codes, the Board finds that Diagnostic Codes 5214 (ankylosis of the wrist), 5228 (limitation of motion of the thumb), 5229 (limitation of motion of the index or long finger), 5230 (limitation of motion of the ring or little finger), and 5307 (flexion of wrist and fingers) are not applicable because the medical evidence does not show that the Veteran has any of those conditions.  Specifically, no treatment record or any VA examination report since February 3, 2011 has demonstrated any objective finding of ankylosis, muscle injury, limitation of motion of the individual fingers, or nonunion or malunion of the radius or ulna.  Furthermore, sensory and neurological testing of the right upper extremities was normal.  Therefore, the Diagnostic Codes relating to neurological impairment are also not applicable in this case.

With regard to assigning a higher disability rating based on functional loss as contemplated by the Court's holding under Deluca, the Board notes the Veteran's complaints of pain, instability, giving way, stiffness, weakness, decreased speed of joint motion, warmth, swelling and tenderness and flare-ups of joint disease.  However, the Veteran is already receiving a 10 percent evaluation under Diagnostic Code 5215 for limitation of motion, which is the maximum evaluation allowed for limitation of motion of the wrist absent ankylosis.  

Regarding the complaints of flare-ups of joint disease, the February 2011 VA examiner noted that the Veteran described flare-ups as severe and occurring weekly from 3 to 7 days with the precipitating factors including increased or unusual physical activities and inclimate weather.  However, the examiner also noted that the Veteran lost less than a week of work over the past 12 months due to joint pain and only experienced moderate effects on sports and recreation, mild effects on chores, shopping and exercise and no effects on traveling, feeding, bathing, dressing, toileting, grooming or driving..  

Thus, based on the Veteran's reported history, his flare-ups are relatively infrequent and fairly short in duration.  Therefore, with no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion even considering subjective symptoms such as pain, the Board concludes that the greater weight of evidence is against assigning an initial evaluation in excess of 10 percent since February 3, 2011 as contemplated by the holding in Deluca. 

Thus, the Board finds that any pain associated with the Veteran's disability is encompassed in the current evaluations.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012).

As the preponderance of the evidence is against the claims for increased ratings, the benefit-of-the-doubt rule does not apply, and the claims must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected residuals, right wrist strain disability.  See Bagwell v. Brown, 9 Vet. App. 157 (1966).  Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.21(b) (1) (2012). 

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. 

The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful.  There is no evidence in the medical records of an exceptional or unusual clinical picture.  The record demonstrates that the Veteran has not required hospitalization as a result of his service-connected residuals, right wrist strain disability.  Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned.  Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted.


Entitlement to Service Connection for Cervical Spine Disability

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167   (Fed. Cir. 2004).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology.  

In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007).  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 

Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C.A. §] 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

Factual Background and Analysis

The Veteran's service treatment records reflect that in April 1997, the Veteran was involved in a motor vehicle accident.  He presented with complaints of stiffness, left sided back pain and a headache.  He was assessed with a neck strain secondary to his motor vehicle accident.

In February 1999, the Veteran presented with complaints of low back pain that occurred after he bent over to pick up an object and his knees buckled.  It was noted that the Veteran had experienced back pain since his motor vehicle accident in 1997.  The diagnosis was mechanical back pain.

The Veteran's April 2000 separation examination was negative for complaints, treatments or diagnoses related to a cervical spine disability.  Notably, the Veteran reported mechanical low back pain on and off since his motor vehicle accident in 1997.  

A September 2001 private treatment note reported that the Veteran had stiffness in his neck.

The Veteran underwent a VA general medical examination in December 2007.  While there were findings of tenderness upon palpitation of the lumbar spine area, there were no findings or diagnoses related to a cervical spine disability.  The diagnosis was myalgia of the lumbar spine area.

A February 2011 treatment note reported that the Veteran had back problems since a motor vehicle accident in 1997.  The diagnosis was shoulder pain and back pain.

A July 2012 VA treatment note indicated that the Veteran had a past medical history of chronic back and shoulder pain.

The Veteran underwent a VA examination in January 2013.  The examiner noted that the Veteran had been diagnosed with a cervical strain in 1997 after a motor vehicle accident.  The Veteran reported that after his discharge from service, he was seen by a chiropractor for his back and neck.  He currently had neck pain that included occasional sharp pains down the side of the neck.  X-rays demonstrated mild degenerative disc disease at C5-C6.  The examiner opined that the Veteran's neck disability was less likely than not incurred in or caused by the Veteran's claimed in-service event, injury or illness.  He noted that a strain was expected to be a self-limited condition.  The Veteran's medical records in 2001 indicated that his neck symptoms had improved and his more recent medical records do not include neck pain as a problem or a reason for evaluation.  It was more likely that his current problem arose subsequent to and independent of his period of service.

In a January 2013 addendum, the examiner noted a review of the Veteran's claim file.  He indicated that the Veteran was involved in a motor vehicle accident in April 1997 and assessed with a cervical and lumbar strain.  X-rays were negative the day after the accident.  He also noted that a note from the Parma Community Hospital indicated that an examination showed that the Veteran had strained the muscles and ligaments to his neck which was a very common injury in car accidents.  These strains usually improved greatly with proper treatment in one to two weeks.  The examiner also noted that in an April 2000 Report of Medical Assessment, the Veteran indicated that since his last examination, he had been treated for left shoulder pain, pain in both knees and pain in his right wrist.  He also reported frequent pain in his knees, left shoulder, right wrist and lower back.  A Report of Medical History in April 2000 noted low back pain on and off since 1997 but did not include notes involving neck pain.

When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a cervical spine disability is not warranted.

As noted above, X-rays have demonstrated mild degenerative disc disease at C5-C6. Accordingly, there is a current diagnosis of a cervical spine disability.  

However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000).

Initially, as noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such diseases are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  In this instance however, service connection for arthritis on a presumptive basis is not warranted as the first evidence of arthritis of the cervical spine is the January 2013 x-ray report.  Moreover, the record does not show manifestations of cervical spine arthritis within one year of the Veteran's service separation.  Accordingly, service connection for arthritis on a presumptive basis is not warranted.  

As noted above, the Veteran's service treatment records demonstrate complaints of neck stiffness and pain after his April 1997 motor vehicle accident which resulted in diagnosis of a neck strain.   The service treatment records, however, were negative for any or diagnoses of any chronic cervical spine disorder as the neck complaints were medically addressed in service, and appear to have been of an acute and transitory nature.  Significantly, on his separation examination in April 2000, the Veteran reported mechanical low back pain on and off since his motor vehicle accident in 1997 but the separation examination was negative for treatments, complaints or diagnoses related to a neck disability.

To the extent that the Veteran is asserting a continuity of symptomatology since service, the Board does not find the Veteran to be credible with regard to any assertions that he has had symptoms of a neck disability since service.  Again, while the Veteran detailed low back complaints on his April 2000 separation examination, the examination report is negative for any treatment, complaint, or diagnosis pertinent to the neck.  Moreover, while his first post-service treatment reports reflect complaints of stiffness in his neck in a September 2001 treatment note, on VA examination in December 2007 the Veteran made no mention of cervical spine complaints and there were no findings or diagnoses related to a cervical spine disability.  February 2011 and July 2012 treatment notes also reported back and shoulder pain but are completely negative for treatment related to his cervical spine as he made no mention of cervical pain or symptoms related to his cervical spine.  One would expect that if the Veteran were experiencing problems with his cervical spine at the time, he would have reported such complaints to the VA examiner and treatment providers.  The Board finds that his documented medical history is in conflict with his current assertions that his current cervical spine symptoms have continued since service.  

As the Veteran was not diagnosed with a cervical spine disability until many years after service and there was a significant period between his service injury and his post-service complaints where the medical record was silent for complaints of a neck disability, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000).  

The Board also finds that the weight of the evidence is against a finding that the Veteran's current cervical spine disability is etiologically related to the Veteran's military service on a direct basis.  In fact, the only medical opinion addressing the etiology of the cervical spine disability weighs against the claim as the January 2013 VA examiner concluded that it was less likely than not that the Veteran's cervical spine disability was related to his military service.  None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion.  

In reaching this conclusion, the Board has considered the lay evidence offered by the Veteran to VA.  This includes his statements and the statements of his representative in which they asserted their belief that the Veteran's cervical spine disability is related to his service.

A layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995).  However, lay persons are generally not competent to opine as to medical etiology or render medical opinions.  See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) ("Sometimes the layperson will be competent to indentify the condition where the condition is simple, for example a broken leg, and sometimes not, for example a form of cancer.").  That is, the Veteran is competent to report that he has cervical spine symptoms; however, he is not competent to state that his cervical spine disability is the result of his service.  Accordingly, the Board has placed greater probative weight on the conclusions reached by the VA examiner, who, as medical professional, is competent to render opinions regarding medical matters. 

As the preponderance of the evidence is against the Veteran's claim, service connection must be denied.  38 C.F.R. §§ 3.1(m) & (n), 3.102, 3.301. 


ORDER

Entitlement to an initial compensable disability rating for service-connected residuals, right wrist strain prior to February 3, 2011 is denied.

Entitlement to an initial disability rating in excess of 10 percent for service-connected residuals, right wrist strain from February 3, 2011 is denied.

Entitlement to service connection for a cervical spine disability is denied.


____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs