Citation Nr: 1328102 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-38 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a cervical spine disability, to include as secondary to peripheral neuropathy. 2. Entitlement to service connection for a lumbar spine disability other than a compression fracture to the L1 vertebra, to include as secondary to peripheral neuropathy. 3. Entitlement to special monthly compensation (SMC) based on the need for the aid and attendance of another person or by reason of being housebound. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from October 1949 to July 1952. This matter is on appeal from rating decisions in September 2008 and July 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before a Decision Review Officer (DRO) in June 2011. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). While the Veteran's SMC claim was originally characterized as one based on the need for the aid and attendance of another, both the statement of the case in September 2010 and the supplemental statement of the case in June 2011 discuss the relevant criteria for establishing entitlement to SMC based on being housebound. 38 U.S.C.A. § 1114(l), (s) (West 2002). The issue of entitlement to SMC based on the need for the aid and attendance of another person and being housebound is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. A cervical spine disability was not shown in service or for many years thereafter, and is unrelated to active duty service or to a service connected disability. 2. It is at least as likely as not that the Veteran's lumbar spine disability has been aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. A cervical spine disability was not incurred in or aggravated by service, and is not related to service or to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2012). 2. The criteria for service connection for a lumbar spine disability other than a compression fracture to the L1 vertebra, to include as secondary to peripheral neuropathy, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that the duty to notify was satisfied by letters sent to the Veteran in June 2008 and May 2009 that fully addressed all notice elements and were sent prior to the initial RO decision. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. They also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, and notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). Next, VA has a duty to assist a Veteran in the development of the claim. That duty includes assisting in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran submitted treatment records from a private facility and his own statements in support of his claim. Moreover, while the RO determined that some of the Veteran's service medical records were unavailable, the Board is satisfied that a diligent effort was made to acquire them and further attempts would be futile. VA examinations were obtained in August 2008, February 2010 and April 2013. 38 C.F.R. § 3.159(c)(4) (2012). When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the VA examinations obtained are collectively adequate. They are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). This appeal was remanded by the Board in November 2012 to obtain a new VA examination. The Board is now satisfied there was substantial compliance with that remand. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Specifically, the Veteran was provided a VA examination in April 2013, which the Board finds adequate for adjudication purposes. Moreover, after the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in July 2013. Finally, as for the Veteran's lumbar spine disability claim, the Board is granting in full the benefit sought on appeal. Accordingly, if any error was committed with respect to either the duty to notify or the duty to assist, that error was harmless. Therefore, no further notice or assistance is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran is claiming entitlement to service connection for disabilities of the cervical and lumbar spine, which he claims are a result of his service-connected cold injury residuals in the extremities. At his hearing before a Decision Review Officer (DRO) in June 2011, he specifically indicated that the peripheral neuropathy he experiences resulting from his cold injury residuals caused him to fall on a number of occasions, which he feels has contributed to his lumbar and cervical spine symptoms. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). In some cases, the service incurrence and a causal relationship may be established through a demonstration of continuity of symptomatology for certain specific chronic disabilities. 38 C.F.R. § 3.303(b) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disabilities considered to be chronic. 38 C.F.R. § 3.309(a) (2012). Arthritis is considered a chronic disease and may be service connected under 38 C.F.R. § 3.303(b). 38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, service connection will also be presumed for listed chronic diseases, such as arthritis, if manifest to a compensable degree within one year after separation from service. 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Allen v. Brown, 7 Vet. App. 439 (1995). The development undertaken by the RO indicates that the Veteran's service medical records are unavailable. The Board recognizes that in cases where service records are unavailable, there is a heightened obligation to assist the appellant in the development of the case, to explain findings and conclusions, and to consider carefully resolving reasonable doubt in favor of the claimant. Washington v. Nicholson, 19 Vet. App. 362 (2005); Cromer v. Nicholson, 19 Vet. App. 215 (2005); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the legal standard for proving a claim for service connection is not lowered. Rather, it increases the Board's obligation to evaluate and discuss and consider all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C.A. § 1154(a) (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). After a review of the relevant evidence of record, the Board determines that service connection is warranted for a lumbar spine disability, but not for a cervical spine disability. Regarding cervical spine symptoms, while the Veteran's service treatment records were not available, it is noted that there is no other circumstantial evidence that any cervical disability existed while he was on active duty, nor is there any clinical indications of a cervical spine disability in the years immediately following service. The post-service evidence does not show symptoms related to a cervical spine disability until he underwent a discectomy of the C6-C7 disc in February 2008. The preoperative diagnosis of spinal stenosis implies that a cervical spine disability was manifest for some time prior to 2008. Nevertheless, the Board emphasizes that that first indication of cervical spine pathology is 56 years after he left active duty. While the absence of treatment for such a long time does not disprove the claim, it does not appear that the Veteran has truly asserted that cervical symptoms existed since the time he left active duty. Rather, his primary assertion has been that it is due to his neurological disabilities. Therefore, the Board finds that continuity is not established based on the clinical evidence of record or the Veteran's statements. Next, despite the Veteran's assertions, the Board also finds that the weight of the competent evidence does not attribute the Veteran's claimed disabilities to active duty or to a service-connected disability. Significant weight is placed on the opinions provided by a number of VA examiners who evaluated the Veteran's symptoms and treatment history. In August 2008, an examiner noted the Veteran's complaints of numbness in the hands and feet for several years, which were acknowledged to be related to cold exposure while he was on active duty. However, the examiner concluded that his cervical spine disability was unrelated to that neuropathy. Even though that particular opinion was not accompanied by a rationale , it still carries some probative value that weighs against the Veteran's claim. At a more recent VA examination in December 2009, the examiner reviewed the information regarding the Veteran's prior anterior cervical fusion, but that procedure appeared largely successful, as the Veteran denied any significant symptoms since then other than "pops and creaks." Upon examination, the Veteran's range of motion was only slightly to moderately diminished, and his neurological functioning, such as reflexes and muscle strength, was substantially normal except for decreased sensory perception in the hands and fingers. After the examination was completed, the examiner opined that it was less likely than not that the Veteran's cervical spine disability was either caused or aggravated by his peripheral neuropathy, his lumbar spine disability, or active duty. In providing that opinion, the examiner noted that there was no actual clinical evidence to indicate that the Veteran's cervical spine disability was a result of a fall, as the Veteran has contended, or to any event that occurred during active duty. While his lumbar vertebral fracture indicated that he was in an accident, there was no indication that there was a cervical spine injury resulting from it. Moreover, the examiner also noted that the lumbar fracture was relatively mild in nature, and there was no indication that the subsequent surgical repair was not successful. Thus, there was no indication that the accident or the subsequent lumbar vertebral fracture played any role in his cervical spine disability. The Board finds that the examinations are collectively adequate for evaluation purposes. Specifically, the examiners reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that the examiner misstated any relevant fact. In support of his claim, the Veteran has submitted private opinions by a private physician in November 2008, May 2010, and December 2012. Although the three statements are written at different times, they basically reiterate the same opinion that neuropathies and gait disorders accelerate degeneration of the spine, at least partially because the Veteran has had increased difficulty with his balance. When presented with conflicting evidence, it is the Board's responsibility to assess the credibility and weight to be given the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1992). While the Board may favor the opinion of one competent medical authority over another, it may not reject medical opinions based on its own medical judgment. Owens v. Brown, 7 Vet. App. 429 (1995); Colvin v. Derwinski, 1 Vet. App 171 (1991). In this case, the Board places more probative value on the VA examiner's opinions for a number of reasons. First, the private examiner has not provided any rationale as to how a gait or balance disorder would cause disabilities in the cervical spine. While it true that the Veteran has neuropathy, and it may be conceded that may lead to a gait disorder, how those facts serve as a basis for the physician's opinion are not clear. Moreover, the Board may not infer a relationship based on that. Moreover, the private physician's opinions appear to have been made without a review of the claims file. While this fact does not specifically nullify the probative value of these opinions, the Board finds that they are outweighed by the more thorough VA examiners' opinions, which were are based on a full understanding of the Veteran's treatment history, and provide a sufficient explanation as to why the evidence does not support a relationship between the Veteran's cervical spine disability and either his service-connected disabilities or active duty. When considering this claim, the Board has also considered the statements made by the Veteran relating his cervical spine disability to his active service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to provide testimony regarding the etiology of a cervical spine disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because cervical spine disabilities such as stenosis, disc pathology, or similar injuries are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the Veteran's statements regarding the claimed etiology of his cervical spine disability are found to lack competency. Next, the Board addresses the Veteran's lumbar spine claim, and concludes that service connection for a lumbar spine disability is warranted. The relevant evidence regarding that issue is largely the same as the evidence considered regarding the Veteran's cervical spine complaints. However, unlike the Veteran's cervical spine claim, the Board finds the private physician's opinion more persuasive that an abnormal gait impacts the lumbar spine disability, particularly where the Veteran is already service-connected for an L1 fracture. Therefore, the private opinions are of more significant probative value regarding the lumbar spine disability claim. Because the Veteran is already service-connected for a compression fracture to the L1 vertebra, it would be substantially prohibitive to differentiate between the symptoms brought about by his compression fracture and the symptoms related to his other lumbar spine disabilities. In cases such as this, all signs and symptoms observed will be rated as if attributed to the service-connected disability, absent evidence to the contrary. 38 C.F.R. § 3.102 (2012); Mittleider v. West, 11 Vet. App. 181 (1998). However, the Veteran should be aware that VA regulations specifically prohibit assigning a disability evaluation of the same disability under various diagnoses, a practice known as pyramiding. 38 C.F.R. § 4.14 (2012). Therefore, even though service connection is being granted, these disabilities should be incorporated with, and not added to, the ratings already assigned. The Board concludes that the preponderance of the evidence is against the claim for service connection for a cervical spine disability, and that claim is denied. The Board finds that it is at least as likely as not that a lumber spine disability is related to service or to the service-connected L1 vertebra fracture. Therefore, service connection for a lumbar spine disability is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a cervical spine disability, to include as secondary to peripheral neuropathy, is denied Service connection for a lumbar spine disability other than a compression fracture to the L1 vertebra, to include as secondary to peripheral neuropathy, is granted. REMAND With regard to the Veteran's claim for SMC based on the need for aid and attendance of another person, additional development is required. A Veteran will be considered to be in need of regular aid and attendance if: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under 38 C.F.R. § 3.352(a) (2012). 38 C.F.R. § 3.351(b), (c) (2012). The criteria to be considered in establishing a factual need for aid and attendance include: (1) the inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; (4) inability to attend to the wants of nature; or (5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a) (2012). There is no evidence in the claims file to suggest that the Veteran is either blind (or nearly blind) or that he is a patient in a nursing home. However, it is unclear whether the need for the aid and attendance of another person is established on a factual basis. He has specifically asserted that his neurological symptoms have left him unable to button his clothes, tie his shoes, or bathe himself without help. Therefore, an aid and attendance examination is required. Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. 1. If the Veteran has received any treatment from a private physician addressing his service-connected disabilities, and the records of that treatment are not in the claims file, attempt to obtain those records after obtaining the Veteran's authorization. 2. If the Veteran has received treatment from any VA medical facility, these records should also be obtained. 3. Schedule the Veteran for a VA examination to determine eligibility for SMC based on a need for aid and attendance benefits or on account of being housebound. The examiner must review the claims file and must note that review in the report. The examiner must provide a complete rationale for all opinions expressed. All pertinent symptomatology and findings should be reported in detail. Following a review of the evidence of record, an examination of the Veteran, and with consideration of the Veteran's statements and any lay statements of record, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the following are present as a result of his nonservice-connected disabilities: (a) Inability to dress or undress himself or to keep himself ordinarily clean and presentable; (b) Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this does not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacking at the back, etc.); (c) inability to attend to the wants of nature; (d) inability to feed himself through loss of coordination of the upper extremities or through extreme weakness; or (e) incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 4. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs