Citation Nr: 1326399 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-22 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for degenerative changes and narrowed disc space of the cervical spine. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from January 1966 through January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A timely Notice of Disagreement (NOD) was received from the Veteran in November 2009. After a Statement of the Case (SOC) was issued in May 2010, the Veteran perfected his appeal later that month, via VA Form 9 substantive appeal. This matter was remanded previously by the Board in July 2011 and February 2013 for further development. The Board is satisfied that the development directed in these remands has been performed, and is prepared to proceed with its de novo consideration of this appeal. FINDINGS OF FACT 1. The Veteran has a meningitis condition which pre-existed his enlistment into active duty service. 2. The Veteran has current narrowing of the disc spaces between C4-5 and C6 that is associated with osteoarthritic changes of the cervical spine, radiculopathy of the right upper extremity, and intervertebral disc syndrome. 3. The evidence does not show that the Veteran's cervical spine disorder was sustained during active duty service; is related to an in-service injury, illness, or event; or, is a manifestation of in-service aggravation of the Veteran's pre-service meningitis. CONCLUSION OF LAW The criteria for service connection for degenerative changes and narrowed disc space of the cervical spine have not been met. 38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (West 2002 & Supp. 2010) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, a pre-rating letter mailed to the Veteran in July 2009 notified him of the information and evidence needed to substantiate his claim for service connection for a cervical spine disorder. Consistent with Dingess, this letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected. After affording the Veteran reasonable opportunity to respond, his claim was adjudicated in the RO's October 2009 rating decision. Thus, because the VCAA notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. The Veteran's service treatment records, VA treatment records, and social security records have been associated with the claims file. The Veteran was also afforded VA examinations of his cervical spine in September 2009, October 2011, and June 2013 to determine the nature and etiology of his cervical spine disorder. These examinations, along with the other evidence of record, are fully adequate for the purposes of determining the nature and etiology of the Veteran's cervical spine disorder. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as arthritis, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). For such disabilities, a claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). In support of his service connection claim, the Veteran has alleged in his claims submissions that his current cervical spine problems are manifestations of in-service aggravation of a condition that existed prior to his enlistment into service. Specifically, he alleges that he had childhood spinal meningitis which was aggravated during service by strain resulting from wearing a helmet, carrying a backpack that weighted between 60 and 80 pounds, and jumping from helicopters into combat areas while wearing and carrying his gear. According to the Veteran, the distance that he jumped from the helicopter to the ground varied from approximately six to 15 feet. In a June 2012 statement, he expressly recalled that he experienced "substantial pain every time I had to jump from a helicopter." Indeed, the Veteran's October 1965 enlistment examination notes that the Veteran reported a pre-service history of meningitis. The Board notes, however, that physical examinations of the spine performed during his enlistment examination and during his January 1967 separation examination did not reveal any abnormalities. A Report of Medical History completed by the Veteran during his separation examination reflects that he expressly denied having any prior or current symptoms of broken bones; bone, joint, or other deformity; recurrent back pain; neuritis; paralysis; bed wetting; or any other orthopedic or neurological symptoms that may potentially be attributable to the Veteran's cervical spine. Also, the other service treatment records do not reflect any complaints of any symptoms related to the neck or cervical spine, nor do they indicate any treatment or diagnoses relating to the neck or cervical spine. Where, as here, a disability that pre-existed service is noted in the enlistment examination report, the Veteran is not presumed to have been of sound health at the time of his enlistment. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In such cases, service connection may be granted for a pre-existing disability where the evidence shows that the pre-existing disability was aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see also Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). The post-service treatment records include records related to VA treatment received by the Veteran from October 2003 through May 2013. Records dated July 2007, April 2008, and June 2008 show that physical examinations performed on those dates revealed full cervical motion and strength. During VA treatment in October 2008, the Veteran complained of chronic aching in his neck over the past several weeks which reportedly radiated into the back of his head. He also reported occasional popping sensations in his neck when he turned his head and that the reported pain symptoms seemed to be worse while he was performing his occupational duties as a truck driver. An examination of the neck at that time revealed tenderness with moderate muscle spasm over the posterior spinal column from the C2 to T2 levels. X-rays of the cervical spine revealed slight to moderate narrowing of the disc spaces between C4-5 and C6 that was associated with slight to moderate osteoarthritic changes. Subsequent VA treatment records through September 2009 show that the Veteran was followed for similar neck complaints. During a September 2009 VA examination, the Veteran reported that he was having daily and constant neck pain which he described as being a seven out of 10 in severity. He stated that his neck symptoms were aggravated by sitting for long periods of time and by looking to either side. During the examination, the Veteran demonstrated diminished cervical spine motion. The October 2008 cervical spine x-rays were reviewed and confirmed as showing narrowed disc spaces and degenerative changes at C4-5. The examiner did not render an opinion, however, as to whether the cervical spine disorder was sustained during service, or, was a manifestation of in-service aggravation of the Veteran's pre-service meningitis. Subsequent VA treatment records through October 2011 reflect that the Veteran continued to be followed for his neck complaints. However, these records also do not provide any opinions as to the cause or origin of the Veteran's cervical spine degeneration. In October 2011, the Veteran underwent a second VA examination of his cervical spine. At that time, he continued to report symptoms which included a pressure sensation that was associated with pain and spasm in the cervical spine which radiated into the base of his occiput. He also reported stiffness and soreness during certain movements of his head and neck. The Veteran also reported radiation of neck pain into his right shoulder and arm to the elbow with occasional numbness and tingling in his upper extremities. He stated that he had moments where he was unable to play his guitar because his fingers were "not coordinating well." During the examination, the Veteran continued to demonstrate diminished cervical spine motion that was accompanied by reported pain. The Veteran was tender to palpation over the cervical spine, however, did not demonstrate any spasm or guarding. Mild and intermittent pain was present in the upper right extremity which was interpreted as being indicative of a mild radiculopathy involving the C5-6 nerve roots. The examiner also noted intervertebral disc syndrome in the cervical spine, albeit without any resulting incapacitating episodes. The examiner diagnosed cervical spine degenerative disc and degenerative joint disease; however, opined that these diagnosed disorders were less likely than not incurred during or caused by an in-service injury, event, or illness. As rationale for this conclusion, the examiner noted that there was no evidence of any in-service treatment for a cervical spine injury. In accordance with the Board's most recent remand, the Veteran was re-examined in June 2013 by the same examiner who performed the October 2011 examination. At that time, the examiner opined further that the Veteran's cervical spine condition is less likely than not proximately due to or a result of a service-connected condition. In that regard, the examiner noted again that the service treatment records did not reflect treatment or complaint of any neck problems during his active duty service. The examiner also concluded that the Veteran's cervical spine disorder was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. As rationale for this conclusion, the examiner reiterated that the service treatment records do not reflect any complaints or treatment for neck problems during active duty service. The examiner noted further that there is no evidence in the record which indicates that the Veteran's meningitis, which pre-existed service, was an etiologic factor in the Veteran developing a disc space infection of the cervical spine which might account for the narrowed disc space at C5-6. Overall, he summarized, it is more likely than not that the Veteran's cervical spine disorder is the result of aging, as degeneration at the C5-6 level of the spine is frequently attributable to age. VA has also obtained the Veteran's social security records, which include the Social Security Administration's favorable determination that the Veteran was disabled from employment, as of July 2008, due to his cervical spine degenerative disc disease and depressive disorder, not otherwise specified (NOS). In that regard, the social security records clearly document the existence of a cervical spine disability; however, they do not contain any opinions relating in any way the cervical spine disability to his active duty service. The only medical opinions in the record which address the possibility of a relationship between the Veteran's current cervical spine degeneration and his active duty service are the VA examiner's October 2011 and June 2013 negative opinions. To that extent, these opinions are not rebutted by any contrary opinions from a medical professional. Further, the VA examiner's negative opinions are based upon an accurate understanding of the medical history gained from an interview of the Veteran and review of the claims file and are supported by adequate rationale derived from the medical history, the examiner's medical expertise, and the current state of knowledge of the medical community. Finally, there is no indication in the October 2011 and June 2013 reports that there were any irregularities in the conduct of either examination. In view of the foregoing, the VA examiner's October 2011 and June 2013 opinions are due full probative weight. The only other evidence in the record concerning the etiology of the Veteran's cervical spine condition is the Veteran's assertions that his current cervical spine degeneration is a manifestation of in-service aggravation of his pre-service meningitis. In addressing lay evidence and determining its probative value, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In that regard, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder). In view of the foregoing law, the Veteran is certainly competent to provide probative statements as to the history and severity of the symptoms in his neck. Nonetheless, the Board points out that although the Veteran reported that he experienced neck pain during helicopter jumps, any assertion in that his current neck disability was incurred during service would be rebutted by the service treatment records and separation examination report, which do not reflect any subjective complaints or any objectively observed abnormalities related to the neck or cervical spine. Similarly, the Veteran does not allege anywhere in the record that he has experienced continuous or chronic neck problems since his active duty service. Moreover, and as noted by the examiner in his June 2013 report, spine degeneration is susceptible to many causes, including age. Such complicated factors are exacerbated in this case by the absence of any evidence showing complaints or treatment related to the Veteran's neck prior to 2007. In view of the foregoing, and as the Veteran is not competent to render an opinion as to the complex question of the cause of the degeneration in his cervical spine, the Board finds that the Veteran's assertions that his current cervical spine degeneration is the result of in-service aggravation of his pre-service meningitis are entitled to far less probative weight than the VA examiner's negative opinions. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. Overall, the preponderance of the evidence is against the Veteran's claim of service connection for degenerative changes and narrowed disc space of the cervical spine, and this claim must be denied. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Service connection for degenerative changes and narrowed disc space of the cervical spine is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs