Citation Nr: 1326374 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 07-21 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for degenerative disc disease and mild degenerative joint disease of the cervical spine, claimed as secondary to the service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from April 1990 to June 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, November 2011, and March 2013, the Board remanded the claim for further evidentiary development. The requested development was completed, and the case has now been returned to the Board for further appellate action. While the matter was in remand status, the other issue addressed in the March 2013 remand was granted by the Appeals Management Center. Specifically, service connection for surgical scars associated with the right knee disability was granted in a June 2013 rating decision. Therefore, this issue has been resolved and is no longer on appeal to the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. FINDINGS OF FACT The most probative evidence indicates the Veteran's degenerative disc disease and mild degenerative joint disease of the cervical spine, initially diagnosed after service, is not caused or aggravated by his service-connected right knee disorder. CONCLUSION OF LAW The requirements for establishing service connection for degenerative disc disease and mild degenerative joint disease of the cervical spine have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in April 2006, May 2009, and December 2011. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006). The claim was readjudicated in the June 2013 supplemental statement of the case. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service treatment records, Social Security Administration records, and VA treatment records have been obtained. In addition, he has been provided with appropriate VA examinations in connection with the claim. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Service Connection 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. 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). 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). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2012). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to conform with Allen; however, under the facts of this case, the regulatory change does not impact the outcome of the appeal. In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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 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). The Veteran's service treatment records contain no complaints, history or findings consistent with a cervical spine disability, and on separation from service the Veteran's spine was evaluated as normal. After service, a VA clinical treatment note in July 2005 documented cervicalgia for approximately 2 years with no history of prior trauma. On VA examination in July 2006, the Veteran reported injuring his neck and experiencing pain in the cervical spine since a motor vehicle accident post discharge from service in 1991. There was also a history of a syncopal fall in August 1999, which resulted in a facial laceration. Additionally, the examiner noted that the Veteran was mugged and beaten on the forehead in February 2001. Following an examination of the Veteran, the examiner diagnosed mild to moderate degenerative disc disease and mild degenerative joint disease of the cervical spine. The examiner found the disability was likely related to his post-service injuries. Given the absence of any complaints in service, or for years thereafter, and no competent evidence linking the current disability to service, there is no basis for concluding the Veteran's cervical spine disability was incurred in service. Additionally, degenerative joint disease of the cervical spine was not documented within one year of discharge from service, so service connection for degenerative joint disease on a presumptive basis is not warranted. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). However, the thrust of the Veteran's claim is that he developed degenerative disc disease and mild degenerative joint disease of the cervical spine due to the service-connected right knee disability. The Veteran has been awarded service connection for right knee status post anterior cruciate ligament and posterior cruciate ligament tear and fracture of the right tibia with tricompartmental degenerative arthritis. On the question of medical causation or medical evidence of an association or link between a cervical spine disability, to include degenerative disc disease and mild degenerative joint disease of the cervical spine, and the service-connected right knee disability, VA obtained medical opinions, which considered the Veteran's contentions and the service and post-service medical records. On VA examination in July 2006, the Veteran reported injuring his neck and experiencing pain in the cervical spine since a motor vehicle accident post discharge from service in 1991. There was also a history of a syncopal fall in August 1999, which resulted in a facial laceration. Additionally, the examiner noted that the Veteran was mugged and beaten on the forehead in February 2001. Following an examination of the Veteran, the examiner diagnosed mild to moderate degenerative disc disease and mild degenerative joint disease of the cervical spine. The examiner opined that the cervical spine disability was not caused by or the result of the service-connected right knee condition. The examiner explained that there was no significant gait disorder noted on examination, and there were at least 3 instances of possible trauma to the neck following discharge from service. Rather, the Veteran's neck condition was more likely than not related to repeated trauma, as opposed to the right knee condition. The Veteran underwent a VA examination in April 2013. The examiner diagnosed degenerative joint disease of the cervical spine and opined that it was less likely than not that the cervical spine disability was caused or aggravated by the service-connected right knee condition. The examiner specifically found that the cervical spine condition was not worsened beyond the natural progression of the disease by the service-connected knee injury. The examiner explained that on examination the Veteran did not exhibit a gait disorder and there was no evidence of any other medical reason that would suggest the Veteran's knee condition aggravated the cervical spine degenerative joint disease beyond the natural progression of the disease. Significantly, the VA opinion is consistent with the evidence of record, to include post-service treatment records. Moreover, that competent medical evidence is uncontroverted by any contrary medical opinion and opposes, rather than supports, the claim. The Board recognizes the Veteran's contentions as to the diagnosis and relationship between the service-connected cervical spine disability and the right knee disability. The Board acknowledges that the Veteran is competent to report about what he experienced; however, as to the specific issue in this case, the diagnosis of cervical spine degenerative joint and disc disease and its etiology are not subject to lay observation or assertion, and fall outside the realm of common knowledge of a lay person. The diagnoses were based on clinical findings, to include radiographic studies and are medical in nature. Due to the medical complexity of the issues involved, the Veteran's assertions alone are insufficient to establish service connection. As a lay person, the Veteran has not been shown to be qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation. Thus, his lay assertions are of little, if any, probative value when offered to establish a causal connection between his cervical spine disability and the service-connected right knee disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Thus, in summary, the most probative evidence shows that the Veteran's cervical spine disability manifested more than 1 year after discharge from service and is not otherwise related to service or a service-connected disability. For these reasons, the preponderance of the evidence weighs against the award of service connection for degenerative disc disease and mild degenerative joint disease of the cervical spine, and the claim must be denied. In reaching these conclusions, the Board notes that, under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim in this case, and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for degenerative disc disease and mild degenerative joint disease of the cervical spine is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs