Citation Nr: 1325084 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 05-06 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for low back disorder, on a direct basis and as secondary to a service-connected disability. 2. Entitlement to service connection for a neck disorder, on a direct basis and as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from June 1967 through July 1987. This matter comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the above of the Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied service connection for a lower back condition with sciatic pain; a neck condition; and peripheral neuropathy of the right hand. In October 2007, the Veteran testified at a Travel Board hearing, at the RO, before the undersigned Veterans Law Judge. In February 2008, the Board remanded these three issues for further development, to include obtaining complete records for the Veteran from Comanche County Memorial Hospital from December 2003 to the present and from Fort Sill from September 2001 to the present, and to schedule the Veteran for a VA examination. A review of the record shows that the requested treatment records were obtained, but VA examination(s) were not accomplished. Thus, there was not substantial compliance with the remand directives of February 2008. Stegall v. West, 11 Vet. App. 268 (1998). In August 2010, the Board again remanded this matter in order to provide additional Veterans Claims Assistance Act of 2000 notice to Veteran, if necessary, and to schedule him for a VA examination and opinion. A review of the record shows that these actions were accomplished; thus, the Board concludes that there was substantial compliance with the remand directives of August 2010. Stegall v. West, supra. In September 2011, the Board issued a decision, denying the claims for service connection for a low back disorder, a neck disorder, and peripheral neuropathy of the right hand. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Order, the Court granted the parties joint motion for remand, and vacated, in part, the Board's September 2011 decision, as it pertained to the claims for service connection for a low back disorder and for a neck disorder, and remanded these two issues to the Board for compliance with the instructions in the joint motion. In the joint motion, the parties found that in the September 2011 decision, the Board did not properly consider the adequacy of the October 2007 Board hearing in light of Bryant v. Shinseki, 23 Vet. App. 488 (2010) (explaining the duties of a hearing officer) and Procopius v. Shinseki, 26 Vet. App. 76 (2012). However, in light of the fully favorable decision below, the Board finds that the adequacy of the prior Board hearing is a moot issue at this point. Further, with regard to the third issue, entitlement to service connection for peripheral neuropathy of the hand, the Court vacated that issue and, as set out in the joint motion, such issue was rendered moot as a result of a June 2011 RO rating decision which granted service connection for peripheral neuropathy of the right upper extremity. Finally, the Board notes that, in its September 2011 decision, the claim for an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD), effective from February 24, 2003, was remanded pursuant to Manlincon v. West, 12 Vet. App. 238 (1999) in order for a statement of the case to be issued. Thereafter, by February 2012 rating decision, the RO granted a 50 percent rating, for PTSD, effective from February 24, 2003. Thereafter, the Veteran's representative submitted a statement (VA Form 21-4138) indicating that the Veteran was satisfied with the 50 percent assigned for PTSD and wished to withdraw the appeal on that issue. Thus, that issue need not be further addressed herein. FINDINGS OF FACT 1. With consideration of the doctrine of reasonable doubt, the Veteran sustained a lumbar/low back injury that has been medically related to his service-connected stroke. 2. With consideration of the doctrine of reasonable doubt, the Veteran sustained a cervical/neck injury that has been medically related to his service-connected stroke. CONCLUSIONS OF LAW 1. Resolving doubt in the Veteran's favor, residuals of a lumbar/low back injury are related to his service-connected stroke. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. Resolving doubt in the Veteran's favor, residuals of a cervical/neck injury are related to his service-connected stroke. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the fully favorable decision contained herein, the Board finds that discussion of the VCAA notice and assistance provided to the Veteran is unnecessary, as any deficiency of such would constitute harmless error. II. Factual Background Treatment records from Comanche Memorial Hospital dated in February 2004, showed that the Veteran was seen for an evaluation for neck pain radiating down his arm and for back pain. He reported that he awoke on December 30, with numbness in his right arm and hand. He reported that the next day the numbness was less prominent, but that his arm seemed weak and that he had pain in his neck, arm, and low back. An X-ray report revealed degenerative joint disease of the upper lumbar and lower thoracic spine, and severe degenerative joint disease of the cervical spine. The assessment was right upper extremity weakness, and a notation that at this point in the time the pain in the Veteran's neck and back were not current an issue. He also reported that he did not usually have chronic neck or back pain. In a letter dated in April 2004, a VA internist reported that the Veteran had a number of chronic medical problems, including back and neck pain, and that following an early morning emergency room visit on January 13th for his neck and back pain he was started on Methadone. In February 2006, when the Veteran filed his initial claims for service connection, he reported that he suffered a stroke on December 31, 2003 and suffered several illnesses, including "lower back pain w/ sciatica and neck." Along with this statement, the Veteran submitted several medical records, including medical records dated in early January 2004. A report of emergency care and treatment dated January 1, 2004, showed that the Veteran was seen for complaints of right trapezius muscles radiating down the arm and weakness in the right grip off and on since 1995. Examination of the back showed tenderness in the right trapezius muscle. The assessment was right shoulder and arm pain, possible pinched nerve. On January 4, 2004, he was seen for complaints of right arm and back pain, and he reported a two week history of right arm numbness. The assessment was degenerative joint disease and osteoarthritis of the cervical spine with radiculopathy. On January 6, 2004, he was seen for neck and back pain, on the right side, for one week. It was noted that he had been seen for two ER visits (December 31, 2003 and January 4, 2004) secondary to neck and low back pain that had an onset one week prior. It was noted that there was no recent trauma. X-rays of the cervical spine dated in January 2004 showed severe degenerative joint disease, and X-rays of the lumbar spine showed degenerative changes of the upper lumbar and lower thoracic spine. An MRI of the cervical spine, dated in May 2004, showed multilevel degenerative changes with canal stenosis and neural foraminal narrowing, and X-rays of the lumbar spine showed degenerative changes of the upper lumbar and lower thoracic spine. On a VA examination in October 2010, the Veteran reported that his neck problem started on December 31, 2003, and that at that time he fell, related to right leg paralysis. He denied neck complaints before falling. With regard to his lumbar spine problem, he reported that the date of onset was 1992, and that he started having a traumatic low back pain related to the right leg condition. His initial care for low back pain was in 1999 at Reynolds Army Hospital. He reported that, when he fell at the time of the stroke/CVA, he had a permanent change in the level of low back pain. The examiner opined that the Veteran's lumbar spine condition was less likely as not permanently aggravated or a result of any event and/or condition that occurred and/or expressed in-service and/or within one year of discharge. The examiner further opined that his lumbar spine condition was at least as likely as not permanently aggravated or a result of any event and/or condition that occurred and/or expressed in service and/or within one year of discharge and was at least as likely as not a result of post service events since discharge in April 1987 and/or the fall described on December 31, 2003, and/or the risk of back pain in the general population and was not caused by and/or worsened by an already service-connected disability. The examiner opined that the natural progression (of the lumbar/low back) was not altered or worsened by any event and/or condition that occurred and/or expressed during active service or within one year of discharge. The examiner further opined that the Veteran's cervical spine condition was less likely as not permanent aggravated or a result of any event or condition that occurred and/or expressed in-service and/or within one year of discharge including the March 1973 neck stiffness. The examiner opined that the Veteran's neck condition was at least as likely as not a result of post-service events since discharge in April 1987 and/or the December 31, 2003 fall and was not caused by and/or worsened by an already service-connected disability. The examiner opined that the natural progression was not altered or worsened by any event and/or condition that occurred and/or expressed during service or within one year of discharge. In January 2012, the Veteran submitted a letter from a private neurosurgeon, Dr. Duncan, who noted that the Veteran's diabetes and hypertension had been long-diagnosed and treated conditions dating back to at least 1987, and that in December 2003 the Veteran suffered a cerebrovascular accident (CVA), which, Dr. Duncan claimed, VA had acknowledged was ischemic in nature. It was also noted that the Veteran was documented as having a fall during the CVA event and sustained both lumbar and cervical injures as a result of the fall. Dr. Duncan opined that it was more likely than not that the Veteran's cerebrovascular accident and subsequent fall with injuries were caused by his service-connected diabetes and hypertension. In support of this opinion, the neurosurgeon cited several medical studies which basically discussed the increased risk for stroke in patients with diabetes and hypertension. In a March 2012 VA DBQ (disability benefits questionnaire), the examiner opined that the Veteran's condition of stroke, cerebral infarction, was at least as likely as not related to the service-connected type II diabetes mellitus and hypertension with abnormal EKG. The examiner indicated that diabetes was an endocrine as well as cardiovascular disease; that a person with hypertension was at high risk for strokes, and that diabetes and hypertension were related to a stroke. III. Laws and Regulations Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that arthritis is listed under 38 C.F.R. § 3.309(a) . Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are 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, residuals of a head injury in service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, supra (lay persons not competent to diagnose cancer). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, 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. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board is charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. IV. Analysis The Veteran essentially contends that he has low back and neck disorders that are a result of a stroke (which has also been referred to as cerebrovascular accident in this matter) that reportedly occurred on December 31, 2003. He claims that, as a result of the stroke, he fell and injured both his low back and neck. By rating decision dated in August 2012, the RO granted service connection for a stroke as secondary to the service-connected diabetes mellitus. With regard to a current disability, the Board notes that the competent medical evidence of record shows that the Veteran has been shown to have lumbar degenerative joint disease (DJD) and degenerative disc disease (DDD), as well as cervical DJD and DDD. Thus, he has current disabilities. What is needed in this case is competent medical evidence linking a current lumbar/low back disability and/or a current cervical/neck disability to a service-connected disability. To that end, the Board notes that the Veteran's low back condition/injury and neck condition/injury have been medically linked to his reported fall that occurred at the time of his stroke in December 2003. In the October 2010 VA examination report and in the January 2012 letter, medical providers have linked the Veteran's low back and neck conditions to his stroke, which reportedly caused him to fall and injury his low back and neck. While neither examiner provided complete rationale for the opinions rendered, the Board finds that these opinions are definitive and do include some explanation for the opinions rendered. Further, while the Veteran's fall has not specifically been documented, the Board finds him competent and credible to report that he fell and hurt his low back and neck at the time he had the stroke. Moreover, his reports in this regard have been consistent. It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a) . When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. Thus, the Board, after having carefully reviewed the record, and weighing the evidence both in support of and against the claim, finds that the evidence is in relative equipoise as to whether the Veteran has a low back condition and/or a neck condition related to his service-connected stroke. Thus, in resolving any doubt in the Veteran's favor, entitlement to service connection for residuals of a lumbar/low back injury and for residuals of a cervical/neck injury have been established, and his appeals are herein granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for residuals of a lumbar/low back injury is granted. Service connection for residuals of a cervical/neck injury is granted. _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs