Citation Nr: 1324489
Decision Date: 08/01/13	Archive Date: 09/24/13

DOCKET NO. 08-30 169	)       DATE AUG 01 2013

On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado

THE ISSUES

1. Entitlement to service connection for a cervical spine disorder.

2. Entitlement to service connection for a lumbosacral spine disorder.

REPRESENTATION 

Appellant represented by:   Veterans of Foreign Wars of the United States

WITNESSES AT HEARING ON APPEAL 

Veteran and his wife

ATTORNEY FOR THE BOARD

J.B. Freeman, Counsel

INTRODUCTION

The Veteran (appellant) served in the Air National Guard on active duty for training (ACDUTRA) from September 1, 1965 to December 24, 1965, July 16, 1966 to July 30, 1966, and from June 17, 1967 to July 1, 1967. He also served on active duty in the United States Air Force from January 1968 to May 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the RO in Denver, Colorado, which in pertinent part, denied service connection for osteoarthritis of the cervical spine and degenerative disc disease of the lumbosacral spine. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.

The Veteran testified before the undersigned at a May 2011 videoconference hearing. A transcript has been associated with the file. The Board remanded this case in July 2011. It returns now for appellate consideration.

FINDINGS OF FACT

1. The Veteran has a current disability of cervical spine degenerative joint and disk disease without a cervical radiculopathy.

2. The Veteran has a current disability of lumbar spine degenerative joint and disk disease with a mild motor L4 radiculopathy bilaterally.

3. Symptoms of cervical or lumbar arthritis were not chronic during service.

4. Symptoms of cervical or lumbar arthritis were not continuous since service.

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5. Neither cervical nor lumbar arthritis manifest to a compensable degree within one year of service separation.

6. The Veteran's cervical and lumbar spine degenerative disk and joint disease with a bilateral mild motor L4 radiculopathy are not causally or etiologically related to an in-service event, injury, or disease.

CONCLUSIONS OF LAW

1. The Veteran's current disability of cervical spine degenerative joint and disk disease was not incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(2012).

2. The Veteran's lumbar spine degenerative joint and disk disease with a mild motor L4 radiculopathy bilaterally was not incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5103, 5103A, 5107(West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(2012).

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A.

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§ 5103(a); 38 C.F.R. § 3.159(b). 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. Compliance with the first element requires notice of the five service connection 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.A. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). July and August 2007 letters fully satisfied each of the above duty to notify provisions prior to initial adjudication of the Veteran's claims in November 2007. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

The Board also concludes VA's duty to assist in obtaining records has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. During initial development of the Veteran's claims, he requested that records be obtained from Dr. F. Once contacted, the doctor's office indicated that a fee was charged for any records. The RO notified the Veteran of VA's inability to pay fees and asked that he obtain the records in October 2007. He did not respond. The Board notes that in July 2007, the Veteran indicated that Dr. F. treated him for a gastroesophageal disorder which is not on appeal. Any error in failing to obtain these records is harmless because they are not relevant to the appeal. The Veteran's Social Security Administration (SSA) records have not been associated with the file. The Board remanded to obtain these records; however, the SSA reported in July 2011 that no medical records were in the agency's possession. The Veteran was notified of the lack of records in September 2011 and asked to provide any outstanding records in his possession. He did not respond. The Board finds that further attempts to obtain SSA records would futile and that the Veteran was adequately notified that VA could no longer assist him on this point. See 38 C.F.R. § 3.159(e). The Board also notes that, despite the Veteran having been told to submit relevant evidence in his possession, the August 2011 VA examination report states that he brought 1985 imaging studies for the examiner's review which are not in the claims file. It is not clear why the Veteran has not submitted these records. The Board notes that failure to submit the records does not alter the outcome of the case because the examiner at the August 2011 VA

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examination described them for the record in the examination report and was able to interpret and rely on the studies in arriving at his medical opinion. The Board finds that there are no referenced outstanding, relevant, extant records that the Veteran has requested VA's assistance to obtain.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). If VA provides a claimant with an examination in a service connection claim, the examination must be adequate. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008).

The Veteran was afforded an August 2011 medical examination to obtain an opinion as to whether his cervical and lumbar spine degenerative joint and disk disease with a mild motor L4 radiculopathy bilaterally were the result of the strain of work as an aerospace ground equipment repairman. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history and listened to the Veteran's assertions. The examiner laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. See Nieves-Rodriguez, 22 Vet. App. at 300.

The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998).

The Board remanded this case in July 2011 to obtain all outstanding VA treatment records from June 2008 to the present concerning the cervical and lumbar spine disabilities, to obtain copies of all medical records and decisions in the possession of the SSA, to provide the Veteran with a VA examination and medical opinion,

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and to provide readjudication and a supplemental statement of the case (SSOC) if the claims were not granted.

The Veteran's VA treatment records from June 2008 to July 2011 were obtained. A July 2010 primary care outpatient note stating that the Veteran now received his primary care through an outside provider. The SSA was contacted and copies of medical records and decisions requested. The SSA responded in July 2011 that it had no medical records because the Veteran had either not filed or no medical records were obtained. The Veteran was notified of the lack of records in September 2011 and asked to provide any outstanding records in his possession. He did not respond. The Veteran was provided an August 2011 VA examination and medical opinion. The examination and opinion are adequate, as discussed above. Finally, a June 2012 SSOC was issued to the Veteran. The Board finds that the RO complied substantially with July 2011 remand instructions. Further remand for additional development of the prior remand instructions is not warranted. See Stegall

Service Connection - Law and Regulations

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisted such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Establishing service connection generally requires competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

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Arthritis is classified as "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain in service will permit service connection of arthritis. A combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time is required. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b).

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id.

If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2012).

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Even where a presumption of service connection is not met, service connection with proof of actual direct causation may be established. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Brock v. Brown, 10 Vet. App. 155 (1997).

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 Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. 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 appellant).

The Board must assess the competency, credibility and probative weight of the relevant evidence, both lay and medical, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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. 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. §3.102.

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The Veteran and his wife do not have the requisite medical experience, knowledge or training to qualify as a medical expert. Accordingly, they are not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). They may provide lay evidence. Lay persons are competent to provide opinions on some medical issues falling within the realm of common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Service Connection for Cervical and Lumbar Spine Disabilities

The Veteran claimed service connection for joints and muscle aches in his back and neck due to Agent Orange exposure in June 2007. He testified before the undersigned in May 2011 that he had pain in his back and neck that began during service and continued to the present.

The August 2011 VA examination report indicates that the Veteran had cervical spine degenerative joint and disk disease without a cervical radiculopathy and lumbar spine degenerative joint and disk disease with central and neural foraminal stenosis and a mild motor L4 radiculopathy bilaterally. This report agrees with the remaining medical evidence of record. The current disabilities are well established. See Shedden.

As to his June 2007 contention, the Veteran's cervical spine degenerative joint and disk disease and lumbar spine degenerative joint and disk disease with central and neural foraminal stenosis and a mild motor L4 radiculopathy bilaterally are not presumptively connected to herbicide exposure. Under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, the Secretary has determined that a presumption of service

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connection is not warranted for any disease not affirmatively named in the presumptive list. See 11 Fed. Reg. 47,924 (August 10,2012). Degenerative disk and joint disease and radiculopathies are not on the presumptive list to the list of diseases associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Based on the law, the Veteran cannot benefit from the presumption, regardless of whether he was exposed to herbicides inservice. Id. When a presumption is not satisfied, direct service connection may yet be established by competent lay or medical evidence of direct causation. See Combee.

The Board also concludes that service connection as a chronic disease is not warranted for either cervical spine degenerative joint and disk disease without a cervical radiculopathy and lumbar spine degenerative joint and disk disease with central and neural foraminal stenosis and bilateral mild motor L4 radiculopathy.

The Board finds that the weight of the evidence demonstrates that the Veteran sustained back injuries in service, but that symptoms of a back disability were not chronic during active service.

The Veteran's service treatment records do not indicate that a spinal disability was chronic during service. The Veteran completed reports of medical history at the end of his ACDUTRA period in December 1965, at entrance to active service in February 1968, and at separation from active service in January 1969 on which he denied swollen or painful joints, back trouble of any kind, arthritis or rheumatism, and neuritis. The Veteran underwent a January 1969 separation from service physical examination. On clinical examination, his spine was normal. A chest x-ray was interpreted as negative. The service treatment records do not reflect diagnosis, complaints or treatment pertaining to the spine.

In a July 2007 personal statement, via a VA Form 21-4138, the Veteran reported that he has experienced cervical and back disorders since the 1980's and has constant pain in his lower back and legs. He has also tried therapy and medications, and even considered surgery.

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In an October 2008 VA Form 9, the Veteran reported that his neck and back problems began during his period of active service in the Air Force and have bothered him ever since. As an aerospace ground repairman, he worked on generators and gas turbines that put a lot of strain on his lower back and neck due to bending over to complete repairs and maintenance. During active service, he "just lived with the pain" and did not seek medical treatment.

Most recently, at the May 2011 video conference hearing, the Veteran reiterated the contentions he made in the October 2008 substantive appeal and further noted that he has limited mobility of his neck, which is his biggest problem. The Veteran testified that after separation from service, he worked electrical construction, in which he injured his back at least once per year and underwent chiropractic treatments; however, such treatments became less frequent when he switched to electrical maintenance. He currently takes medication twice per day for his lower back pain. The Veteran's wife also testified that she has known the Veteran for approximately 41 to 42 years and he has had neck and back problems ever since. She corroborated the Veteran's visits to a chiropractor and that the Veteran currently has limited movement in his neck and wakes up every day with back aches.

Additional private treatment records beginning in 2003 have been associated with the claims file. A May 2005 treatment note states that the Veteran had developed sciatica about six months previously. A June 2005 neurosurgical consultation indicated onset of sciatica about eight months previously. Although the Veteran's spine was evaluated, these records do not describe when the Veteran's cervical and lumbar degenerative joint and disc disease first became chronic.

The Veteran was seen for an August 2011 VA examination in connection with this appeal. He repeated his contention that the onset of back symptoms was in 1968. He denied back care during service. The examiner noted that the Veteran's service treatment records lacked notation of a cervical or lumbar spine condition. The Veteran reported seeking chiropractic treatment periodically after service. The examiner indicated that the Veteran's chart noted that the neck condition began sometime around 1990 with intermittent dysesthesias. The Veteran brought

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cervical MRIs and plain x-ray films from 1985, which have not been associated with the claims file. The examiner indicated the x-rays showed a right lateral shift which was present on clinical examination as well. The examiner noted central stenosis on the MRI but no formal reading was available. The examiner stated that the first symptoms were in 1990, "according to the Veteran," and were associated with worker's compensation injury management and eventual discharge. The examiner concluded that the Veteran's neck and back conditions were the result of work related injuries and not at least as likely as not related to military service.

On review of the whole record, the Board notes that the Veteran has contradicted himself as to the onset of his back and neck pain. His June 2007 statement indicates onset in the 1980's. His later statement and testimony indicate onset during service. This reduces the credibility of his statements.

The Veteran's testimony regarding his post-service employment was that he reinjured his back annually after service and sought chiropractic treatment for years. The Veteran's wife is competent to report that the Veteran had problems with his neck and back throughout their relationship. The Veteran's January 1969 report of medical history also indicated that he was not having back trouble of any kind, arthritis, neuritis, or painful joints. Given that more than forty years elapsed between separation and testimony and that the Veteran has stated that he reinjured himself repeatedly after service, the Board places greater weight on the Veteran's contemporaneous statements in January 1969 than the more recent contention that the neck and back problems had their onset in service.

The weight of the evidence demonstrates that symptoms of the Veteran's cervical and lumbar spine degenerative joint and disc disease were not chronic during service. The Board has given more probative weight to the contemporaneous denial of back problems at separation from service in 1969, the intercurrent injuries during post-service civilian employment, the Veteran's contradictory statements regarding onset of his back pain, and the four decades between the end of the Veteran's service and the lay testimony. The Board also notes that the Veteran's account consists solely of pain during service. The mere manifestation of joint pain in service will not be enough to permit service connection of arthritis as a chronic

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disease. 38 C.F.R. § 3.303(b). A combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time is required. Id. The Veteran has only described back and neck pain during service, without any additional lay observable symptom that would allow for identification of the disorder.

The Board next finds that the weight of the evidence demonstrates that symptoms of a back disability have not been continuous since service separation in May 1969. Again, the Veteran's account of onset during service is contradictory. The Veteran produced 1985 MRI and x-ray films which showed cervical spine disorders, but these imaging reports were created 16 years after separation and after his report of additional intercurrent injuries in the years following service. On consideration of the lack of a spinal disorder at his January 1969 separation from service physical examination report, the post-service intercurrent injuries, and the Veteran's contradictory account, the Board finds that symptoms of cervical and lumbar degenerative joint and disc disease were not continuously present since separation from service.

Also, in this regard, the evidence of record does not demonstrate that the Veteran had arthritis of the back that manifested within one year of separation from active service as there are no reports of arthritis of his back within one year of separation from service, let alone a report of the degree of disability at that time. His complaints of pain are not sufficient to identify degenerative joint or disk disease during service. Sufficient evidence was not developed until 2003. As such, service connection cannot therefore be presumed under the provisions of 38 C.F.R. §§ 3.307 and 3.309(a), for chronic disease.

Although the presumptions for herbicide exposure and chronic diseases have not been satisfied, direct service connection may yet be established by competent lay or medical evidence of direct causation. See Combee.

The Board finds that there is no competent evidence to relate the Veteran's cervical and lumbar spine disabilities to herbicide exposure during service. The Veteran's assertions that his cervical and lumbar spine disabilities are related to herbicide

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exposure are not competent evidence. A lay observer may report knowledge acquired through the five senses or communicated to him by an expert in the relevant field. See Jandreau, 492 F.3d at 1377. In this case, the Veteran is not reporting knowledge acquired through the five senses or the communication of an expert. He has offered nothing more than an assertion that his cervical and lumbar spine disabilities are related to supposed herbicide exposure. The Veteran is not competent to relate the two together as he is not a medical expert, is not reporting the statements of a medical expert, and such a relationship is beyond the ability of a lay observer to witness. The Veteran's wife did not offer evidence that his cervical and lumbar spine disabilities were related to herbicides. There is no medical evidence of record to relate the cervical and lumbar spine disabilities to herbicides. Thus, the nexus element of claim is also not established as to the herbicide exposure contention. See Shedden.

The Veteran has contended that his current spinal disabilities are related to his work as a ground mechanic in active service. His DD 214 states that his military occupational specialty was as an aerospace ground equipment repairman. The Veteran is competent to report that working on generators and gas turbines put a lot of strain on his lower back and neck due to bending over to complete repairs and maintenance. The Board finds, for the purposes of this decision, that this is an in-service incurrence event. See Shedden.

The Board finds that the weight of the evidence is against nexus between the current disabilities and service.

The Board places little weight on the lay evidence of nexus to service. Just as the Veteran is competent to report his duties during service, he is also competent to report intercurrent injuries after service and that his post-service employment was in electrical construction and as an electrician, which also put strain onto his back and neck. As lay persons, neither the Veteran nor his wife have not been shown to be qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation. The Veteran and his wife have not reported that a medical professional has related his current disabilities to any incident of service, including strain working on generators or gas turbines. The Veteran and his wife

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are not competent to provide evidence that the Veteran had strain during service and now has disabilities of the spine. Thus, the lay assertions are of little or no probative value when offered to establish a causal connection between his current disability and service.

The Board places much greater weight on the medical evidence regarding nexus. The only medical opinion of record is that of the August 2011 VA examination report. The examiner reviewed the claims file, listened to the Veteran's contentions, specifically noting the contention of back pain during service. The examiner indicated that the service treatment records and post-service treatment records supported the finding that the Veteran's neck and back disabilities were related to post-service work injuries. The examiner concluded that the Veteran's current disabilities were related to the intercurrent injuries and not to service.

In light of the foregoing, the Board finds that preponderance of the evidence is against a finding that the Veteran's cervical and lumbar degenerative joint and disc disease with bilateral mild motor L4 radiculopathy are related to any incident of service, including herbicide exposure and work strain as a ground equipment repairman. Service connection on a direct basis is not warranted. See Shedden.

As such, the Board finds that the preponderance of the evidence is against the Veteran's service connection claims. Consequently, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. §3.102.

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ORDER 

Service connection for a cervical spine disorder is denied. Service connection for a lumbosacral spine disorder is denied.

K.J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

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