Citation Nr: 1327260 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 05-40 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased disability rating for chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease, currently evaluated as 40 percent disabling. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for residuals of a left hip fracture, as secondary to a cervical spine disorder. 4. Entitlement to service connection for traumatic brain injury (TBI), as secondary to service-connected chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease. 5. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for TBI. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from October 1972 to August 1975. The Veteran died in November 2010. The appellant is the Veteran's surviving spouse, who is substituted as the appellant for purposes of adjudicating the Veteran's claims to completion. 38 U.S.C. § 5121A (allows for substitution in case of death of a claimant who dies on or after October 10, 2008). This matter came before the Board of Veterans' Appeals (Board) on appeal from September 2004 and April 2007 rating decisions of the Regional Office (RO) in Atlanta, Georgia. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. The Board notes that, pursuant to his request in his substantive appeal, the Veteran requested a hearing before the Board. However, the Veteran died before such a hearing could be held, and the appellant did not report as scheduled to a hearing in May 2013. As such, the Board will proceed with its review on the present record. See 38 C.F.R. § 20.704(d), (e). FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's lumbosacral strain with post-cloneal nerve block and degenerative disc disease was productive of pain with range of forward flexion of the lumbar spine to 25 degrees; but without unfavorable ankylosis. 2. A cervical spine disorder is not attributable to service. 3. Residuals of a left hip fracture are not attributable to service. 4. A TBI is not attributable to service, including service-connected chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease. 5. The Veteran does not have additional disability, including TBI, due to the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care. 6. The Veteran does not have additional disability of TBI proximately caused by an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 40 percent for chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 - 5243, 4.124a, Diagnostic Codes 8520, 8620 (2012). 2. A cervical spine disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. Residuals of a left hip fracture were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 4. The criteria for service connection for TBI, including as secondary to service-connected chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease, have not been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 5. The Veteran is not entitled under the law to compensation benefits under to the provisions of 38 U.S.C.A. § 1151 for TBI. 38 U.S.C.A. §§ 1151, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.154, 3.159, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in June 2004 and August 2006, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for service connection and an increased rating, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decisions that are the basis of this appeal were decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally, as previously noted in the introduction, the Veteran died in November 2010, and the appellant has been substituted for purposes of adjudicating the Veteran's claims to completion. No additional notice is required. VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of private and VA post-service treatment and evaluation, as well as the Veteran's own statements in support of his claims. The Veteran was examined by VA in connection with his increased rating claim in 2004 and 2008. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding that issue; the examination reports contain all the findings needed to evaluate the disability, including history and clinical evaluation. The Veteran was not examined by VA in connection with his claims for service connection of a cervical spine and left hip disorder, but, as will be explained below, the evidence does not demonstrate a related injury, disease, or event during service; therefore, no examination or nexus opinion is required. The Veteran was also not provided with an examination with regard to his claims for TBI. The claims are based on the contention that pain from the service-connected back disability either caused the TBI, as a result of injury sustained in a motor vehicle accident, or based on VA's fault in treatment. The question of the presence of pain associated with the back condition which would be addressed by an examiner is already demonstrated in the treatment records. Therefore no further evidence is necessary to conclude that the Veteran had pain associated with the back disability. Any opinion obtained would be speculative, as none of the treatment records related to the TBI suggest a relationship between his TBI and his service-connected disabilities, or VA treatment and his TBI. The contention is insufficient to trigger VA's duty to provide a medical examination or obtain a medical opinion with regard to secondary service connection. Consequently, there exists no reasonable possibility that a VA examination with a nexus opinion would result in findings favorable to the Veteran in this case. Accordingly, the Board finds that an etiology opinion is not necessary. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Rating Disabilities Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The United States Court of Appeals for Veterans Claims (Court) has emphasized that when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disability should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Analysis of an Increased Rating for the Lumbar Spine The diagnostic code criteria pertinent to rating spinal disabilities are codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5237 through 5243. All diseases and injuries of the spine other than intervertebral disc syndrome are to be evaluated under the general rating formula. Intervertebral disc syndrome (preoperatively or postoperatively) is to be rated either under the general rating formula or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. According to the general rating formula, a 40 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 68 Fed. Reg. 51,443, Note (5) (Aug. 27, 2003). Any associated objective neurological abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under an appropriate DC. 68 Fed. Reg. 51,443, Note (1) (Aug. 27, 2003). The Veteran contended that he was entitled to an increased disability rating for his chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease. He reported pain with activity, along with occasional stiffness, fatigue, and numbness After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence does not demonstrate that an evaluation in excess of 40 percent for the Veteran's chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease is warranted. At the September 2008 VA examination, the Veteran had flexion to 25 degrees, extension to -10 degrees, lateral flexion to 10 degrees on the right and 5 degrees on the left, and rotation to 5 degrees bilaterally, without additional loss of motion on repetitive use. Previously, at the July 2004 VA examination, the Veteran had forward flexion to 30 degrees, with lateral flexion to 10 degrees bilaterally, extension to 5 degrees, and rotation to 20 degrees on the right and 10 degrees on the left. Such range of motion contemplated the Veteran's pain. There was tenderness and spasm, but without fixed deformity or intervertebral disc syndrome. The reports indicated that there was pain on motion, but without weakness or atrophy. There was also no evidence of postural abnormalities or abnormalities of the musculature of the spine. Strength testing was normal, but sensory function showed decreased sensation in the right foot and absent ankle jerk. The Veteran denied experiencing incontinence or bowel complaints, but he reported intermittent erectile dysfunction. Thus, applying the facts to the criteria set forth above, the Veteran remains entitled to no more than a 40 percent evaluation for his service-connected chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease for the rating period on appeal under the General Rating Formula for Diseases and Injuries of the Spine. The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current ratings are based on the objectively demonstrated reduced motion; the July 2004 and September 2008 VA examination reports indicate that the Veteran complained of pain, but physical examination did not demonstrate any additional limitations in response to pain, including incoordination, weakness, or fatigability, beyond which was reflected in the examination report. Therefore, the clinical findings do not demonstrate that the Veteran's symptoms result in additional functional limitation to a degree that would support a rating in excess of the current disability rating; the evidence reveals a disability picture most approximating a 40 percent evaluation thereafter, even with consideration of whether there was additional functional impairment due to DeLuca factors. See Mitchell, supra. Further, the evidence does not show favorable or unfavorable ankylosis of the entire thoracolumbar spine during either of the rating periods on appeal. The July 2004 VA examination expressly stated that there was no evidence of ankylosis. The evidence also does not show that the Veteran's chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease has been productive of incapacitating episodes for either rating period on appeal. Although the Veteran reported that he had incapacitating episodes requiring bed rest in May 2008 and August 2008, the Veteran's VA treatment records do not confirm that his treating physicians at VA noted any incapacitating episodes or prescribed bed rest due to his chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that there is no objective evidence of record for the entire rating period on appeal which demonstrates that the Veteran experiences any neurologic symptomatology beyond his service-connected neuralgia of the right lower extremity. The Board points out that VA is precluded from compensating the Veteran for the very same symptoms. See Brady v. Brown, 4 Vet. App. 203, 206 (1993) (a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity."). The Veteran's neurological evaluations at his VA examinations are otherwise negative for evidence of neuropathy; there is no evidence of decreased strength, muscle atrophy, or decreased sensation on the left side. Thus, he is not entitled to a separate, compensable rating for the neurologic manifestations of chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease under DC 8520, 8521, 8524, 8525, or 8526. Extraschedular Considerations As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease are fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms, each of which were addressed in the VA examination report and treatment records and which provided the basis for the disability rating that has been assigned. The Veteran had no complaints other than pain, fatigue, stiffness, and limitation of motion which was clearly considered upon evaluation at the VA examinations and which serves as the basis for his assigned disability rating for chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease. The Veteran alleged that his chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease interfered with his ability to work, but the evidence of record did not reflect that there was marked interference with employment due to his chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease. Therefore, referral for consideration of an extraschedular rating for chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease is not warranted. 38 C.F.R. § 3.321(b)(1). In the absence of exceptional factors associated with chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease, the Board finds that the criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Legal Criteria for Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all of 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, all of the evidence submitted by the Veteran or on his or her 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). 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. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In addition, the law provides that, 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) (2012). 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. The Veteran has not been diagnosed with a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the disabilities on appeal. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay assertions 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. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 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). 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. See 38 C.F.R. § 3.310(a) (2012); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. §3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Analysis of Service Connection Cervical Spine Disorder Service treatment records do not demonstrate any complaints, treatment, or diagnoses related to the cervical spine. VA treatment records dated 2004 through 2009 indicate that the Veteran was struck by a car in September 2004, with multiple fractures. Nonetheless, he was treated by rheumatology clinic in August 2004 due to complaints of chronic neck pain; he had tenderness to palpation and limitation of motion, and reported a history of a left shoulder injury when he fell in March 2004. The Veteran was provided with a cervical collar in November 2004; the Veteran complained of chronic neck pain and the provisional diagnosis was degeneration of the cervical intervertebral disc. A March 2005 MRI of the cervical spine showed degenerative disc disease at C3-4, C5-6, and C6-7, with diffuse posterior osteophyte disc complexes encroaching in the neural canal and compromising the neural foramina, without cord impingement or cord compression. In August 2006, he underwent a cervical epidural steroid injection. An evaluation showed chronic neck pain in June 2008, with neuroforaminal stenosis, and 2007 and 2008 treatment notes show a diagnosis of osteoporosis. Treatment records from North Fulton Regional Hospital indicate that the Veteran was hit by a car while a pedestrian in September 2004; the Veteran sustained a closed head injury with cerebral contusions and traumatic hemorrhage. A cervical spine CT scan showed normal height and alignment of the cervical vertebrae, without fracture. There was narrowing of C5-6 and C6-7 disc spaces with mild spinal canal stenosis. The Board notes that, whether service connection is claimed on direct or secondary basis, a necessary element for establishing such a claim is the existence of current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). As explained by the Federal Circuit, in order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (2001). In this case, the Veteran must show that he has currently has a cervical spine disorder that is due to disease or injury in service or is caused or aggravated by service-connected disability. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability). See also Sanchez-Benitez, 259 F.3d at 1362 (without factual finding of nexus between current neck pain and in-service neck trauma, Federal Circuit could not reach the question of whether veteran's current pain was statutorily compensable). The Veteran reported that he had a cervical spine disorder (namely, a bone spur of the neck) when he filed his claim for service connection in April 2004. However, the weight of the evidence does not demonstrate the existence of a cervical spine disorder that is due to a disease or injury in service or caused or aggravated by a service-connected disability. The evidence shows that service treatment records do not show any complaints, treatment, or diagnoses of a cervical spine injury or disease during service. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (Lance, J., concurring) (VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). Moreover, there is no evidence of a cervical spine disorder in service or for many years thereafter, and the Veteran did not assert that his cervical spine disorder was related to his service until 2004, when he filed his claim for service connection. See Pond v. West, 12 Vet. App. 341 (1999). To the extent that the Veteran contended that a cervical spine disorder was related to his service-connected lumbosacral strain or anything else in service, the probative value of his general lay assertions is outweighed by the weight of the evidence that reflects that his cervical spine disorder was unrelated to service. Regardless, the Veteran did not allege any in-service cervical spine injury or treatment. Therefore, the Veteran's later allegation of such treatment and diagnosis, first given only when seeking service connection for this disability, was not credible when seen in light of the other evidence of record. In other words, the Board finds the statements made contemporaneous to service, indicating a lack of complaints related to the cervical spine have more probative weight than the later statements made during the course of a claim for compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). The Veteran is competent to report certain symptoms related his claimed disability; however, the Board finds that his vague assertions that his current cervical spine disorder was related to service were not credible. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), and n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). For these reasons, the Board finds that the preponderance of the evidence is against the claim for service connection for a cervical spine disorder. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for entitlement to service connection for a cervical spine disorder must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Residuals of a Left Hip Fracture The Veteran claimed that his fracture of the left hip was caused by his cervical spine disorder. As the Board has found that service connection is not warranted for a cervical spine disorder, there remains no further basis for consideration of the Veteran's claim for residuals of a fracture of the left hip under 38 C.F.R. § 3.310, as secondary to a cervical spine disorder. Nevertheless, the Board notes that the Veteran's service treatment records do not show that the Veteran complained of or was treated for a left hip fracture or had symptoms of a left hip disorder during service. In this regard, it is important to note that there is no indication of any related problems during service. The fact that there has been no demonstration, by competent clinical evidence of record, that the Veteran's cervical spine disorder was attributable to his military service, unfortunately also, in turn, means that he cannot link his residuals of a left hip fracture, if any, to his service - via his cervical spine disorder. See 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. at 448. That is to say, the elimination of one relationship to service, as the supposed precipitant, necessarily also eliminates all associated residual conditions. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (in "order for service connection for a particular disability to be granted, a claimant must establish he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service.'") Citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Therefore, entitlement to service connection for residuals of a left hip fracture must be denied; the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Traumatic Brain Injury Prior to his death, the Veteran contended that his TBI was due to his service-connected lumbosacral strain; according to the Veteran, he had impaired mobility due to his service-connected chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease, which caused him to be too slow in crossing the street and being hit by the car. As previously noted, VA treatment records dated 2004 through 2009 indicate that the Veteran was struck by a car in September 2004, with multiple fractures. The Veteran was also hospitalized for detoxification in March 2004. The admitting provider indicated that the Veteran was going through withdrawal and had high levels of anxiety. Treatment records from North Fulton Regional Hospital indicate that the Veteran was hit by a car while a pedestrian in September 2004; the Veteran sustained a closed head injury with cerebral contusions and traumatic hemorrhage. A cervical spine CT scan showed normal height and alignment of the cervical vertebrae, without fracture. There was narrowing of C5-6 and C6-7 disc spaces with mild spinal canal stenosis. A January 2009 VA record indicates that the Veteran was treated for seizures. He reported that he was struck by a motor vehicle while standing alongside a road in 2004; he was admitted to North Fulton Regional Hospital for 5 weeks, then transferred for rehabilitation. In March 2009, the Veteran was involved in another motor vehicle accident, when he had a seizure while driving. In this case, the Veteran's claim must be denied because his TBI is neither caused nor aggravated by service-connected chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease. To the extent that the Veteran stated, and the appellant continues to assert, that his TBI is due to his service-connected lumbosacral strain, it is generally the province of medical professionals to diagnose or label a mental condition, not the claimant." Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). At the outset, the Board points out that the Veteran did not claim that his TBI was shown in service or within one year of separation. The weight of the competent and probative lay and medical evidence does not demonstrate that the TBI is etiologically related to the service-connected disability. The weight of the evidence shows that the TBI was the result of injury sustained in a pedestrian accident and resulted from the Veteran's actions, and not proximately due to his service-connected chronic lumbosacral strain. With regard to the claim for secondary service connection, 38 C.F.R. § 3.310 provides that a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Proximate cause is defined by Black's Law Dictionary as that which, in a natural continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred. See Forshey v. West, 12 Vet. App. 71, 74 (1998). The Veteran was competent to report his experiences related to his treatment for connected chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease and to state that he experienced symptoms, but these statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board has considered the assertion that there is a relationship between his TBI and his service-connected chronic lumbosacral strain. 38 C.F.R. § 3.310. However, here, the allegation is not unsupported by competent evidence. Nothing in the record, other than the assertions of the Veteran and the appellant, suggests any relationship (causation or aggravation) between a service-connected disability and his TBI. Neither the Veteran, nor the appellant, as laypersons, are competent to establish a medical nexus between the service-connected chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease and the Veteran's TBI. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also Jandreau at 1377 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The contention that the pain from the service-connected chronic lumbosacral strain caused the Veteran to move too slowly to avoid being struck by a car cannot serve as competent evidence of a nexus because it is too attenuated to establish proximate cause. The further contention that but for the back pain, the Veteran would not have an alcohol problem required attendance at AA and thus having to cross the street is an even more attenuated theory of causation which does not meet the standard of proximate causation required under the applicable statute and regulation. Both the Veteran and the appellant were advised of the evidence necessary to substantiate the claim but have not submitted such evidence. In sum, the weight of the competent, probative and credible evidence does not establish that a TBI to the service-connected chronic lumbosacral strain, with post-cloneal nerve block and degenerative disc disease. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for TBI. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 Legal Criteria for Compensation benefits under 38 U.S.C.A. § 1151 When a veteran suffers an injury or an aggravation of an injury resulting in additional disability or death as the result of VA training, hospitalization, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death were service connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. These provisions of law apply to claims received by VA on or after October 1, 1997. 38 C.F.R. § 3.361(a). In determining whether a veteran sustained additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability or death. Merely showing that a veteran received care or treatment and that the veteran has an additional disability, or died, does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. In addition, the proximate cause of death is the action or event that directly caused the death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(c)(3). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's death; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations as to whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. As specified in 38 C.F.R. § 3.361(d)(2), in determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Analysis for Compensation benefits under 38 U.S.C.A. § 1151 Regarding the claim for benefits under 38 U.S.C.A. § 1151, the Veteran contended that his TBI resulted from inadequate treatment from the VA. According to the Veteran, delays in treatment for his service-connected chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease and a failure by the VA medical center to provide an assistive device and proper pain medication caused him to have to ambulate with difficulty, which resulted in him crossing the street too slowly to avoid the accident. Specifically, the Veteran claims that VA's was negligent in failing to adequately treat his pain and limited motion from his service-connected lumbosacral strain, which allowed it to increase in severity, such that he was too slow to cross the street, which in turn subjected him to the additional disability of a TBI from the motor vehicle accident. The Veteran also alleges that proper treatment for pain would have meant that he would not have resulted in his alcohol abuse, and he would not have had to cross the street to use public transportation to go to AA meetings or live in a halfway house. Treatment records confirm that the Veteran's TBI resulted from the 2004 motor vehicle accident as a pedestrian. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence does not establish that that the Veteran suffered from additional disability due to VA negligence or fault or an event not reasonably foreseeable. As previously discussed, the evidence establishes that the Veteran's TBI was caused by being struck by a vehicle which is proximately due to the actions of the parties involved in the motor vehicle accident. The Board acknowledges the contentions of the Veteran and the appellant, but finds that the assertions as to causation are too attenuated to constitute probative evidence to support the claim. Neither the Veteran nor the appellant have provided any probative or credible evidence demonstrating that the Veteran's TBI was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA medical personnel, or an event not reasonably foreseeable. The Veteran was treated by VA for his service-connected chronic lumbosacral strain prior to his motor vehicle accident and TBI in March 2004, but there was no assertion prior to the Veteran's accident that VA did not meet the standard of medical care in their clinical assessment and treatment. The evidence of record does not show any indication that the VA treatment of the Veteran for the service-connected back disability resulted in any additional disability, to include a TBI. Although the Veteran, prior to his death, repeatedly contended that he suffered from additional damage (TBI) due to VA fault or an event not reasonably foreseeable, by virtue of a lack of proper pain management, causing him to cross the street too slowly to avoid oncoming traffic, the Board affords the Veteran's contentions limited probative value. As noted above, the Veteran lacks the medical training and expertise required to render a competent opinion with respect to the medical question of whether the Veteran has additional disability caused by VA negligence or fault or an event not reasonably foreseeable. Furthermore, as discussed above regarding the Veteran's claim for secondary service connection for TBI, the Veteran's theory of causation is insufficient to support the claim on the basis of proximate causation. Therefore, upon consideration of the foregoing, the Board finds that the weight of the evidence does not establish that additional disability due to any negligence or fault of VA in administering treatment for service-connected chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease or an event not reasonably foreseeable. Because the Board concludes that the preponderance of the evidence is against the claim, entitlement to compensation benefits under 38 U.S.C.A. § 1151 is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a disability rating in excess of 40 percent for chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease is denied. Entitlement to service connection for a cervical spine disorder is denied. Entitlement to service connection for residuals of a left hip fracture, as secondary to a cervical spine disorder, is denied. Service connection for TBI, as secondary to service-connected chronic lumbosacral strain with post-cloneal nerve block and degenerative disc disease is denied. Compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for TBI is denied. ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs