Citation Nr: 1323487 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-09 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the left ankle (also claimed as gout). 2. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine. ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active military service from July 1976 to July 1996. This matter came to the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A September 2007 RO decision denied entitlement to service connection for degenerative disc disease of the cervical spine, claimed as arthritis. In addition, a September 2008 RO decision reopened and denied the claim for service connection for degenerative arthritis of the left ankle. The Board reopened the cervical spine disability and remanded both issues in December 2011, and again remanded the claims in February 2013 for further development and adjudicative action. FINDINGS OF FACT 1. The most probative evidence indicates the Veteran does not currently have degenerative arthritis of the left ankle; the Veteran's gout, which occasionally becomes active, was not manifested during service or for several years thereafter, and is not shown to be etiologically related to service. 2. The most probative evidence indicates the Veteran's in-service cervical muscle spasm resolved without residual disability; there is no competent evidence of arthritis in the cervical spine within one year following discharge from service, and the current multilevel cervical DDD with progressive foraminal stenosis and cervical spondylosis is not shown to be etiologically related to service, but has been attributed to the normal aging process and other non-service-related factors. CONCLUSIONS OF LAW 1. The requirements for service connection for degenerative arthritis and gout of the left ankle are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The requirements for service connection for DDD of the cervical spine are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The RO provided compliant VCAA notice by letters dated in March 2007 and January 2008. The letters advised the Veteran of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Regarding the duty to assist, VA has obtained service treatment records (STRs), assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions, and afforded the appellant the opportunity to give testimony before the Board. The Board is further satisfied that there has been substantial compliance with its December 2011 and February 2013 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, VA examinations were conducted and an additional VA opinion was obtained. In addition, pertinent treatment records were obtained. A search was made to find an additional 1997 or 1998 magnetic resonance imaging (MRI) report identified by the Veteran but not of record. The Veteran was notified in March 2013 that additional magnetic resonance imaging (MRI) reports were unavailable, and that he should submit any such records in his possession. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries, supra. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board has reviewed all the evidence in the record. 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 appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's STRs note that in September 1988, he complained of neck pain of 5-days duration. There was no history of direct trauma. Cervical muscle spasm was diagnosed. In September 1994, he complained of occasional left ankle pain. In May 1996, the Veteran complained of increasing pain in the right shoulder and hips, and the diagnosis was diffuse degenerative arthritis at an early age. In July 1996, an orthopedic consultation report indicated that he requested that it be documented that his ankle pain is secondary to degenerative joint disease. The STRs are negative for any diagnosis of degenerative arthritis of the left ankle or cervical spine, or gout. In August 1996, the Veteran requested service connection for multiple conditions. Specifically, he requested service connection for degenerative arthritis of the fingers, left hip, left knee, ankles, and "degenerative joint disease." He did not specifically mention his cervical spine. Post-service treatment records note that no left ankle or cervical spine condition was diagnosed on VA compensation examination in October 1996. A VA cervical spine X-ray study dated in July 1998 was normal. The Veteran sought emergency room treatment in September 1999 complaining of neck pain of one and a half years duration. A VA MRI dated in March 2001 diagnosed mild degenerative changes, bulging and stenosis at C5-C6, and spurring at C7-T1. A May 2001 left ankle X-ray study was negative. A VA joints examination was conducted in July 2004. The Veteran complained of left ankle pain of 10 years duration. Left ankle physical examination was normal and a June 2004 X-ray study showed no degenerative changes of the left ankle. A VA joints examination was conducted in May 2006. The Veteran complained of neck pain. No cervical spine condition was diagnosed. A private MRI dated in December 2007 diagnosed cervical spondylosis with mild canal stenosis at C3-C4 through C5-C6, and a central disc herniation at C4-C5. Private treatment records note treatment for gout since 2009. A fee basis examination was conducted in January 2012. The examiner noted that there were no objective findings of pathology on examination or imaging study which would support a diagnosis of left ankle condition or disorder. The examiner noted there is no evidence of degenerative joint disease (osteoarthritis) or gout. The examiner concluded that as there is no current diagnosable left ankle condition, no formal medical opinion has been provided. The examiner noted gout is an episodic condition characterized by flare-ups or attacks of symptoms, and that the Veteran was not diagnosed with gout until 2007, after his period of military service. He further noted there is no evidence in the record that he had complaints consistent with gout or any diagnosis of gout during service. The examiner noted the Veteran did have an episode of neck pain in service in 1988 diagnosed as cervical muscle spasm. The examiner also noted that no further follow-up care was documented in the STRs. The examiner stated that the condition appeared to have been an isolated episode of neck pain which resolved. There are no further complaints of neck pain until after the Veteran left military service. A 1998 cervical spine X-ray revealed no abnormality. In October 1999, the Veteran presented at an emergency room with a complaint of a year and a half of neck pain (making onset around 1998, after military service). The earliest objective finding of DDD on imaging study is in a March 2001 MRI when Veteran is noted to have mild C4-C5 and C5-C6 DDD. The examiner also indicated the Veteran's cervical DDD has progressed, especially between 2006 and the most recent MRI in September 2011, and he now is noted to have multilevel cervical DDD with progressive foraminal stenosis and cervical spondylosis. The examiner noted Veteran's left arm paresthesias, have never been thought to be caused by a cervical disorder. Given the normal X-ray in 1998, years after onset of the paresthesias; the lack of consistent neck complaints during service; and the multiple medical providers evaluating Veteran during this time frame ruling out all possible causes, the examiner agreed that the Veteran's longstanding history of left arm paresthesias is not a cervical radiculopathy. The examiner cited to internet/treatise information for the proposition that "DDD is part of natural aging, but it is also a consequence of poor nutrition, smoking, atherosclerosis, job-related activities, and genetics. Intervertebral disc disease can result from cervical trauma, including whiplash, cervical flexion/rotation injury, and repetitive use." In reviewing the Veteran's records, the examiner was unable to find a history of significant risk factors during military service which would have contributed to the development of degenerative disc disease beyond the progression of the aging process in an individual predisposed to develop DDD. Specifically, the examiner noted there was no documented history of trauma and no documented history of complaints of neck pain arising from, or related to, job activities. The medical evidence does not reflect a diagnosis of degenerative arthritis of the left ankle during the course of the claim. Therefore, service connection for this condition is denied. See Davidson, supra. The Veteran's gout was not active during the VA compensation examination. Service connection may be granted where there is competent evidence of a present disability at some point pertinent to the appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran has been treated for active gout at times during the appeal period. The first mention of gout is in the late 2000's many years after separation from service. In addition, the January 2012 examiner has stated that the Veteran's gout is not related to service. Therefore, service connection for gout is also not warranted. Although a lay person is competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether he has a current disability and whether that disability is related to service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In this regard, joint pain can have many causes and requires medical testing to diagnose and medical expertise to determine the etiology thereof. Thus, his opinion that he suffered from arthritis of the left ankle and or gout of the left ankle during service and/or since service is simply not a competent medical opinion. The Board accords more weight to the medical evidence than to the Veteran's lay assertions. Indeed, a January 2012 left ankle X-ray showed no abnormality in the left ankle. In the absence of evidence establishing degenerative arthritis in the left ankle during the course of the claim, and as the most probative evidence indicates that any gout in the left ankle is not related to service, the preponderance of the evidence is against the claim for service connection for a left ankle disability. Thus, the claim is denied. Service connection for the Veteran's current cervical spine disability is also denied. Although the Veteran contends his current cervical spine disability began in service and continued thereafter, this is contradicted by the lack of any complaints of cervical spine or neck pain at the time of his service separation examination, and at the time of his original claim for service connection for multiple disabilities immediately after separation from service. The probative value of his contention is further reduced by the absence of any cervical spine complaints in post-service medical histories he provided during his VA examination in October 1996 and when he sought treatment for neck pain in September 1999. Thus, the Board finds that the Veteran's contention that he suffered from a chronic cervical spine disability during service and service, is not credible. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Given that conclusion, the other evidence failing to show any cervical spine complaints until several years after service, and the opinion of the January 2012 examiner failing to link his current cervical spine disability to service, a basis upon which to establish service connection has not been presented. In this case, the Board finds the January 2012 medical opinion persuasive, as it was based on a thorough examination of the Veteran and included a detailed discussion of all relevant facts. The examiner offered a rational and plausible explanation for concluding that the Veteran's left ankle and cervical spine conditions were not incurred in service or became manifest within one year of separation from service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.) In sum, the Board finds that the preponderance of the competent and probative evidence indicates that the Veteran's gout of the left ankle and DDD of the cervical spine were not shown in active service or for several years thereafter, and his gout of the left ankle and DDD of the cervical spine has not been shown by competent medical evidence to be etiologically related to his active service. Moreover, arthritis of the left ankle is not shown during the course of the appeal. Accordingly, service connection for left ankle and cervical spine disabilities is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for degenerative arthritis and gout of the left ankle is denied. Entitlement to service connection for DDD of the cervical spine is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs