Citation Nr: 1331741 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 95-09 139A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a cervical spine disability (the "neck"), to include as secondary to service-connected lumbar degenerative disc disease and spinal stenosis ("back'). 2. Entitlement to service connection for a cardiac disability ("heart"), to include hypertensive cardiovascular disease and ischemic heart disease, to include as secondary to service-connected hypertension. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Army from November 1984 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The claims have been before the Board on a previous occasion, and were remanded in May 2012 for evidentiary development. The Veteran appeared at a Videoconference hearing in March 2006. Transcripts are of record. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, has been reviewed in this case. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran's cervical spine disc herniation and arthritis are causally related to service (and arthritis did not develop within the first post-service year), or, alternatively, were caused or aggravated by service-connected lumbar spine disability; rather, it is evident that neck disablement began many years after service and that it is age-related in nature. 2. The evidence of record does not establish that the Veteran currently experiences a cardiac disability, to include hypertensive or ischemic heart disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for a cardiac disability have not been met 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic conditions, such as arthritis, arteriosclerosis, and cardiovascular-renal disease, if manifest to a compensable degree within the first post-service year, will be presumed to have been incurred in active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). Further, as these are regulatorily-established "chronic diseases," they are capable of service connection via a showing of continuity of symptomatology between service and present. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331. Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a nonservice- connected disability caused by a service-connected disability. See Allen v. Brown, 7 Vet.App. 439 (1995). In this regard, Congress has specifically limited entitlement to service connection for disease or injury to cases where such have resulted in a disability. 38 U.S.C.A. § 1110. Thus, in the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly affirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). As noted in the introductory section of this decision, the Board has had this case before it on an earlier occasion. It was determined in May 2012 that there was need for additional development to determine if a chronic neck disability had causal origins in service or, alternatively, was caused or aggravated beyond the natural disease process by a service-connected lumbar spine disability. With respect to the claimed cardiovascular disorder, it was ordered that the claims file be reviewed, and that upon an examination, it be determined as to if the Veteran experienced a heart disorder, and if so, if such disability was related to service-connected hypertension. Regarding the neck disability, the Board noted that the service treatment records did show the Veteran experiencing an event in active duty where another soldier fell on the Veteran. The Veteran sought treatment for upper extremity pain at that time. It was also noted that the Veteran had a back injury in service which resulted in the grant of service connection for degenerative disc disease and lumbar stenosis (currently evaluated as 60 percent disabling). While the Veteran did not have specific cervical spine complaints in service, the history of trauma to the spine was noted by the Board, and it was asked if an examiner could review the claim and determine if it was at least as likely as not that any current cervical spine disability had origins in service or, alternatively, was caused or aggravated beyond the natural progress of the disease process by service-connected lumbar degenerative disc disease. An examination was afforded in July 2012, and the associated opinion does not support the Veteran's contentions. Indeed, the examiner concluded that the earliest manifestations of cervical pain were in 1997, as that is when the Veteran first had radiographic studies taken. Based on the presentation of the disablement, the examiner felt that even that late of a post-service date was probably "too early," as it was taken in concert with complaints of back pain (as opposed to neck pain). The Veteran did, subsequent to this, have cervical herniation, and he was treated with non-surgical intervention prior to an anterior cervical discectomy at C3-4, C4-5, and C5-6 (interbody fusion with allograft bone and anterior cervical plating) in November 2009. The examiner noted that there was "no study" that linked the occurrence of disc herniation in the lumbar spine to an "automatic[]" herniation in the cervical discs. The examiner reviewed the very lengthy claims file, and stated that "there were absolutely no signs or symptoms of [the Veteran] having any neck problems in the military or for years afterward." With regard to the injury of having another soldier fall on him, the examiner explained that such an injury "would not be the cause of his cervical disc herniations almost two decades later." The examiner stated that the Veteran had "developed osteoarthritis, which is also known as degenerative arthritis, which is age-related and not trauma-related." While the Veteran developed this condition at a relatively early age, the examiner explained that is occurred "not so early that he is an outlier." The examiner concluded that based on this "it is significantly less likely as not that the cervical spine disorder is in any way related to anything that happened to [the Veteran] during his period of active service." Regarding the contended secondary etiology, the examiner stated that "the lumbar spine disorder did not cause or aggravate the neck condition." For a rationale, the examiner explained that while there were similar disc herniations present in the lumbar spine, that such a finding "was not the cause" of the neck disc herniation. The examiner further explained that "there is no quality study" linking lumbar herniation to the development of that disability in the neck, and there was also no noted etiological relationship to arthritis in the neck from the service-connected lumbar spine disability. As noted, the examiner had linked the development of arthritis to a solely age-related process, providing highly probative evidence against this claim. The Veteran has had numerous consultations for lumbar spine pain since his separation from service; however, the record is much more limited with respect to cervical complaints. A private radiographic study of August 1992 found the neck to be unremarkable, and while there have been consistent complaints of neck pain for the last several years, there is nothing to show an onset of neck pain in service or, in the case of arthritis, within the first post service year, save for the Veteran's own unsubstantiated lay assertions. The Board has reviewed the highly extensive medical record. Overall, the Board must find that the service and post-service record provides, overall, evidence against the Veteran's claim, indicating a problem that began after service with no connection to the back disability. The treatment records and evaluations are detailed and extensive. With regard to the Veteran's testimony, the Board acknowledges that the Federal Circuit has suggested that laypersons perhaps can establish the required nexus to service in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (vacating and remanding a decision in which the Court categorically held in a service connection case that "'a valid medical opinion' was required to establish nexus, and that [a lay person] was 'not competent' to provide testimony as to nexus because [that individual] was a layperson."). However, the Court has also held that a layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include establishing 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. Id. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, regarding the issue of etiology for a neck disorder (and whether it is connected to a back disability or the injury that caused his back problem), and in taking the above holdings together, the Board finds that the Veteran's contentions regarding the relationship between his current neck disability and his active service/service-connected lumbar spine disability are not statements about symptomatology or an observable medical condition. Rather, these contentions are statements of medical diagnoses and causation. Such statements clearly fall within the realm of opinions requiring medical expertise. The Veteran has not demonstrated any such expertise. Hence, his contentions are not competent medical evidence of the diagnoses or causes of the claimed disabilities. On the other hand, the findings of the 2012 medical examiner are detailed, and well-rationalized. The examiner explained that the medical literature does not support a finding of either a causal or aggravating relationship between lumbar disc disease and neck arthritis/disc disease, and that the type of pathology demonstrated in the neck is not the sort to arise out of a 20-year remote injury that did not present with symptoms until 1997 (at the very earliest). Moreover, the examiner noted that the objective findings show the pathology to be age-related as the type of arthritic process present was degenerative as opposed to traumatic in nature. The examiner reviewed the history of complaints post-service, the in-service history, and the entirety of the multi-volume claims file when coming to his conclusion. It is not conclusory and is highly probative against the Veteran's contentions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The record, which is highly detailed, overall supports the findings of the examiner. Simply put, the competent and credible evidence weighs against a finding that cervical disc herniation and/or arthritis had causal origins in service as a result of a fall (and it is also not shown that arthritis developed within the first post-service year), or alternatively, that lumbar spine disease caused or aggravated any cervical disability beyond the natural progression of the disease process. For example, an August 1992 radiographic report, which in itself was several years after service, showed a normal cervical spine, and the Veteran did not begin to exhibit any sort of pathology until many years after service separation. The Veteran's own unsubstantiated lay assertions do not place the evidence into relative equipoise, and the Board must deny the claim. With regard to the claim for a cardiac disorder, it is noted that the Veteran is in receipt of service-connected compensation benefits for hypertension. In the May 2012 remand order, it was asked that a cardiovascular examination be conducted so that any cardiac disorder could be identified. A VA examination was afforded in concert with this request in July 2012. The Veteran does have some historical assessments that potentially indicated cardiac disability, and this was noted by the 2012 VA examiner. The Veteran had exhibited atypical chest pain in 1998 that was not felt to be cardiac in origin, and a January 1999 cardiac catheterization revealed normal coronary arteries, providing more evidence against this claim of high probative value. The examiner above noted that in January 1988, the Veteran was diagnosed with hypertensive vascular disease; however, the examiner noted that the basis for that diagnosis was not explained. Contemporaneous chest X-ray was "normal, without cardiomegaly at that time," and EKG noted "ST abnormalities." It was determined that currently, the Veteran "has no evidence of HCVD on the basis of no cardiomegaly on chest x-ray, EKG with no evidence of LVH and the ECHO revealing grossly normal left ventricular size." In conclusion, the examiner stated that "he has no diagnosed heart disease on this examination." In support of this, a review of the electronic records contained in the Virtual VA system reveals a fairly recent radiographic study dated in May 2013. At that time, "no acute cardiopulmonary process" was noted in the Veteran. The service-connected hypertensive disability picture has been clarified since the initial grant, and it is established that the award of service connection includes only the manifestations associated with the vascular disease. The Veteran contends that he has some sort of chronic heart problem associated with hypertension; however, there is only very minimal supporting evidence that such a disorder ever existed. While there was an assessment of potential disease in 1988, the 2012 VA examiner has noted that such a diagnosis was not supported by contemporaneous radiographic studies, and further went on to state that there is no cardiac abnormality currently present which would support the remote diagnosis. The Veteran has had numerous cardiac consultations since separation from service; however, even after invasive procedures such as catheterization, there has never been found any ischemic, hypertensive, or other heart disease which could qualify for a current disability capable of service connection. Further testing, beyond the above, which is highly extensive, is simply not warranted. The best evidence in the case provides highly probative evidence against this claim. As it is first and foremost a requirement, for any claim for service connection, that a current disability be present, the Board must conclude that the claim for service connection for a heart disability must fail in this case. See Brammer at 223. Simply put, the only evidence supportive of a finding of heart disease comes from the Veteran's own unsubstantiated lay assertions, and as with the contended etiology for his cervical spine disorder, such contentions are medical in nature and require an expertise that is above and beyond what the Veteran has demonstrated to possess. See Jandreau at 1372. The Board understands that this is a complex situation. In this regard, it is important to understand that while there were indications of a heart disorder that provided the basis for much study (this is a two box case) (and the Board's basis for remand), the best evidence, overall, provides highly probative medical evidence against the Veteran's central contention that he has a heart disability at this time or at any time during the appeal period, notwithstanding any test result during the appeal period. Extensive testing has provided highly probative evidence on this point that outweighs all other evidence. As the Veteran does not currently experience a heart disability of any kind, his claim is denied. In reaching the above determination, and with respect to both claims on appeal, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. 38 U.S.C.A. § 5107(b) (West 2002); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. 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 (2012). 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); 38 C.F.R. § 3.159(b). 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). Compliance with the first Quartuccio element requires notice of the five service connection elements: (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. See 38 U.S.C.A. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). It is pertinent to note that the Veteran is represented by the Mississippi State Veterans Affairs Commission, and that organization is presumed to have knowledge of what is necessary to substantiate a claim for service connection. Neither the Veteran nor his representative have pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the Veteran has been provided with several VA examinations to address etiology and, with respect to his claimed cardiac disease, the existence of current disability, including invasive testing (the cardiac catheterization) that the Board would not normally have in such cases in light of the dangers of surgery. As discussed in detail above, these reports, collectively, thoroughly discuss the nature and etiology of the Veteran's contended disability picture. Accordingly, they are adequate to resolve the issue of service connection. Indeed, regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claims, the Board finds that all necessary assistance has been provided in this case. There is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2012). ORDER Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar degenerative disc disease and spinal stenosis, is denied. Entitlement to service connection for a cardiac disability, to include hypertensive cardiovascular disease and ischemic heart disease, to include as secondary to service-connected hypertension, is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs