Citation Nr: 1330107 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 07-21 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his friend, W.B. ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that denied service connection for spine stenosis due to degenerative disc disease of the lumbar spine and declined to reopen the previously denied issues of entitlement to service connection for a cervical spine condition and a right shoulder condition. In August 2011, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge at the Board in Washington, D.C. A transcript of the hearing has been associated with the Veteran's claims file. In October 2011, the Board reopened the Veteran's previously denied claims of entitlement to service connection for a cervical spine disorder and a right shoulder disorder and remanded the reopened claims, as well as the claim for service connection for stenosis due to degenerative disc disease of the lumbar spine, to the Appeals Management Center (AMC) for further evidentiary development, including providing the Veteran with additional notice, obtaining outstanding VA treatment records, particularly from the Cleveland VA Medical Center (VAMC) dated prior to 2000, and scheduling the Veteran for a new VA examination. In February 2013, the Board determined that the remand directives had not been fully accomplished and that another remand was required. The Board is now satisfied that the development requested has been completed to the extent possible. Hence, further remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (only substantial, and not strict, compliance with the terms of a Board remand is required). FINDINGS OF FACT 1. A right shoulder disability is not shown in service, and the most probative evidence fails to shows that a diagnosed right shoulder disorder, to include arthritis, had its onset in service, was manifest within one year of discharge, or is otherwise related to the Veteran's period of active duty, including an in-service injury. 2. A cervical spine disability is not shown in service, and the most probative evidence fails to shows that a diagnosed cervical spine disorder, to include arthritis or stenosis, had its onset in service, was manifest within one year of discharge, or is otherwise related to the Veteran's active duty, including an in-service injury. 3. A lumbar spine disability is not shown in service, and the most probative evidence fails to shows that a diagnosed lumbar spine disorder, to include arthritis or stenosis, had its onset in service, was manifest within one year of discharge, or is otherwise related to the Veteran's period of active duty, including an in-service injury. CONCLUSIONS OF LAW 1. A right shoulder disability was not incurred in or aggravated by active service, and arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a) (2013). 2. A cervical spine disability was not incurred in or aggravated by active service, and neither arthritis nor stenosis may be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a) (2013). 3. A lumbar spine disability was not incurred in or aggravated by active service, and neither arthritis nor stenosis may be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for increased ratings. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). The United States Court of Appeals for Veterans Claims (Court) has held that VA 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court has observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); 38 U.S.C. § 5103(a). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court specifically addressed notice requirements in the context of a veteran's request to reopen a previously and finally denied claim. The Court found that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, and must provide notice that describes what evidence would be necessary to substantiate the element or elements required to establish the benefit sought that were not found in the previous denial. In a letter dated in October 2011, the Veteran was provided notice regarding what information and evidence was needed to substantiate his service connection claims, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claims. The correspondence also informed the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection or increased ratings are awarded. [The timing defect of this notice was cured by the agency or original jurisdiction's readjudication of the Veteran's appeal and issuance of supplemental statements of the case in October 2012 and June 2013.] The Veteran has not demonstrated any other error in VCAA notice, therefore the presumption of prejudicial error as to such notice does not arise. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Accordingly, the Board finds that the duty to notify provisions have been satisfactorily met, and neither the Veteran nor his representative has pointed out any specific deficiency to be corrected. The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records, available VA medical records and private medical records for which an appropriate release was received are in the file. Social Security Administration records are in the file. In the October 2011 remand, the Board asked the AMC to procure any records of pertinent treatment that the Veteran may have received at the Wade Park VA Medical Center (VAMC) prior to 2000. Earlier attempts to procure these reports had been negative. However, the Veteran had testified at the August 2011 hearing that he had been told that the records may be located at the Celebrezze Federal Building in Cleveland, Ohio. See August 2011 hearing transcript, at pages 8-11. In June 2013, a formal finding of unavailability was made after it was determined that records from that location were not available. Notably, in May 2013, the Veteran was provided written notification of VA's inability to obtain his treatment records for the reported period at this facility. He did not respond or provide any additional treatment record releases. He declined to provide consent to release records from the Chalmers P. Wylie Outpatient Clinic. The Veteran was afforded VA examinations in December 2011 and September 2012 to determine the etiology of his low back, neck and right shoulder problems. The examiners concluded that the Veteran's right shoulder, neck, and low back disabilities were not related to his alleged in-service fall. However, in rendering their opinions, the Board noted in the February 2013 remand that the examiners did not address the Veteran's contentions of continuous symptoms in the right shoulder, neck, and low back since discharge, as supported by several lay statements from friends. In a March 2013 addendum opinion, the examiner reported that the Veteran's contentions and lay statements were considered. As the examiner reviewed the Veteran's past medical history, documented his current medical conditions, considered the appropriate contentions and evidence (including the lay statements), and rendered appropriate diagnoses and opinions with supporting rationale, the opinion is adequate for adjudication purposes. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Consequently, the Board finds that VA's duty to assist has also been met in this case, and further remand would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540 (1991) (a remand is inappropriate where there is no possibility of any benefit flowing to the veteran). II. Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Evidence of continuity of symptomatology of a disability identified in 38 C.F.R. § 3.309(a) from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Certain chronic disabilities, such as arthritis, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). 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). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Additionally, competency of evidence must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). It is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran's service treatment records are completely silent for complaints or a diagnosis of a right shoulder, cervical spine or lumbar spine disabilities, and the Veteran is not competent to diagnose himself with radiculopathy, arthritis or stenosis because these medical disorders require specialized knowledge, equipment, and medical training to assess. See Jandreau, supra. In this regard, the Board observes that the claimed disabilities are first documented in medical reports in the file more than 20 years after the Veteran's discharge from military service. The Court has held that a prolonged period without documented medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Also, upon separation examination in May 1975, the Veteran's spine and upper extremities were clinically evaluated to be within normal limits, and no diseases or defects of these joints were denoted. Notably, in a signed statement in section 73, the Veteran wrote, "I feel fine at the present. I have a hearing loss, right [and] left." He did not relate a history of right shoulder, neck and back injuries, or render any complaints pertaining to these joints. In an August 1975 statement of medical condition, the Veteran reported that since his last separation examination his medical condition had changed as follows: "The Doctor . . . thinks that I have Gout in my right elbo." (sic). There was no mention of a truck accident, or any complaints pertaining to the right shoulder, neck or lumbar spine. Additionally, a November 1975 VA examination indicated that the Veteran was seen for complaints related to pain in his right elbow. There was no mention of a truck accident in 1973. No cervical spine or right shoulder complaints were recorded. Private treatment records beginning in July 1997 first document complaints of neck pain that radiated to the right upper extremity and diagnoses of cervical spine disorders to include disc herniation and disc disease. Private records beginning in July 2001 show complaints of right shoulder pain; a shoulder examination in July 2001 was consistent with impingement syndrome. VA treatment records beginning in December 2000 show a diagnosis of cervical spine stenosis and history of degenerative joint disease in the shoulder. A VA record dated in March 2001 shows that the Veteran first reported injuring himself by falling off a truck in service while stationed at Fort Sill, Oklahoma in 1973. The Veteran submitted numerous lay statements from family members and friends reporting that he contemporaneously reported his injuries in 1973 to his family, and that following service, he had cervical spine and right shoulder problems. W.B., who testified at the Veteran's hearing, also submitted a statement. W.B.'s testimony indicated that the Veteran had physical limitations with his neck and right shoulder immediately after discharge from service. The Veteran testified that he did not report injuring his cervical spine and right shoulder at discharge because he was told that his separation would be held up and he needed to get home to his wife, who was five months pregnant at the time. The Board has considered the lay statements presented. To the extent that the Veteran and others have alleged continuity of symptomatology since discharge, or a relationship between the disabilities and service or a service injury, the Board finds that they are competent to report about symptoms or witnessing symptoms after his discharge. Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465 (1994) (veteran is competent to report symptoms because that requires only personal knowledge, not medical expertise, as it comes to him through his senses). However, although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case, stenosis, arthritis, radiculopathy fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, supra. (lay persons not competent to diagnose cancer). Therefore, the Board finds that the Veteran's statements and the other lay statements of record cannot be accepted as competent evidence sufficient to establish service connection. Moreover, the Board finds that the Veteran's assertions are not credible in light of the May 1975 separation examination with a signed statement from him that he "felt fine," a clinical evaluation that failed to show that the Veteran had any complaints, symptoms or diagnoses pertaining to his right shoulder, neck and/or lumbar spine at the time of his discharge or in the immediate years following his separation, including in an addendum statement made in August 1975. The Board has also considered the Veteran's allegation that he did not report injuring his cervical spine and right shoulder at discharge because he was told that his separation would be held up and he wanted to get home to his pregnant wife. However, when the Veteran appeared for a VA examination in November 1975, after his discharge, he still did not report any complaints related to his right shoulder, neck, or lumbar spine. Notably, in an April 1989 private treatment record, more than 12 years later, a systemic review included a notation of arthritis in the ankles, elbow, and left hip. There was no mention of the right shoulder or neck, and it was reported that the Veteran "[r]ecently . . . ha[d] an aching and crackling noise at the level of L1." An October 2000 letter from a private neurologist indicated that the Veteran had "a long history of neck discomfort with pain radiation in both arms" that was initially treated in Cleveland. However, an in-service injury was not mentioned. An October 2001 psychological evaluation performed in conjunction with the Veteran's claim for Social Security Administration disability benefits noted that the Veteran indicated that he had served in the military for three years between 1972 and 1975, but he did not mention any injuries to his right shoulder, neck and back. In a November 2005 statement, the Veteran reported being diagnosed with his condition in 1998, more than 20 years after his separation from active duty. Consequently, the Board finds that the objective contemporary clinical evidence pertaining to the Veteran's medical problems is more probative than the Veteran's and others later unsupported statements made in conjunction with a claim for VA compensation benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Accordingly, the Board finds that no probative weight can be assigned to the statements regarding experiencing right shoulder, neck, and lumbar spine symptoms since service. The Veteran underwent VA examinations in December 2011 and September 2012 to determine the etiology of his low back, neck and right shoulder problems. The examiners concluded that the Veteran's right shoulder, neck, and low back disabilities were not related to his military service, including the alleged in-service fall. The December 2011 addendum statement noted review of the Veteran's file and concluded that the major risk factor for diffuse, multilevel, disc disease such as that seen in the Veteran is "exposure to nicotine" and "[o]ne time injuries do not generally cause diffuse disc disease," rather there would be a "more focal pattern to the injury." Additionally, it generally does not "result in a 29 year interval between the incident injury and efforts to obtain care for that injury." The September 2012 examiner stated that the Veteran had a "significant ongoing longstanding tobacco abuse" and degenerative arthritis of the cervical/lumbar spine "was not caused by or a result of one remote fall in 1973." He had multiple risk factors for his current disease, including tobacco abuse, obesity, and age. In an addendum opinion provided in March 2013, the examiner acknowledged the Veteran's lay statement and contentions of continuous right shoulder, neck, and back symptoms since separation from service. However, the opinion remained unchanged. He concluded that the Veteran's current disabilities were "related to his history of ongoing tobacco abuse, obesity, and normal age progression." There are no competent and probative opinions to the contrary. The Board observes that there are medical statements documenting the Veteran's report of an in-service truck accident with subsequent symptoms. (See for example, an August 2002 VA Discharge Summary). However, as detailed above, the Board has found the Veteran's assertions to be lacking in credibility. Hence, any statements based solely on the Veteran's reported history, are of limited probative value. See LeShore v. Brown, 8 Vet. App. 406 (1995) (a mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional.); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (medical evaluation that is merely a recitation of a veteran's self-reported and unsubstantiated history has no probative value). Accordingly, the Board finds that these statements lack significant probative value. See Bloom, supra. In the absence of any persuasive and probative evidence that the Veteran's current right shoulder, cervical spine and lumbar spine disorders are etiologically related to active service, service connection is not warranted and the claims must be denied. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Service connection for a right shoulder disability is denied. Service connection for a cervical spine disability is denied. Service connection for a lumbar spine disability is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs