Citation Nr: 1333589 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 06-17 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a disability of the cervical spine. 2. Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the lumbosacral spine. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1994 to December 1996. The issues or claims are before the Board of Veterans' Appeals (Board) on appeal of rating decisions in March 2005 and in February 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2010 and in June 2012, the Board remanded the claims for further development. As the requested development has been completed, further action to ensure compliance with the remand directive is not required. Stegall v. West, 11 Vet. App. 268 (1998). In July 2013, the Veteran submitted additional evidence in support of the claim for increase for degenerative joint disease of the lumbosacral spine and waived initial consideration of the evidence by the RO. As the additional evidence suggests a material change in the disability, the claim is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT A disability of the cervical spine, cervical strain, was not affirmatively shown to have had onset during service; a disability of the cervical spine, cervical strain, is not otherwise related to an injury, disease, or event in service; and disability of the cervical spine, cervical strain, is not caused by or permanently made worse by either service-connected arthritis of the feet or degenerative joint disease of the lumbosacral spine. CONCLUSION OF LAW The criteria for service connection for a disability of the cervical spine, cervical strain, have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) On the claim of service connection for a disability of the cervical spine, the VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify On the claim of service connection for a disability of the cervical spine, under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post- adjudication VCAA notice by letters in January 2005, in March 2006, and in September 2010. The VCAA notice included the type of evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The notice included the type of evidence needed to substantiate a claim of secondary service connection, namely, that a service-connected disability caused or aggravated the claimed disability. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any non-Federal records on his behalf. The VCAA notice included the general provisions for the effective date of a claim and for the degree of disability assignable. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); and of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent of pre-adjudication VCAA notice). To the extent the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in February 2013. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist On the claim of service connection for a disability of the cervical spine, under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records, VA records, and private medical records. The Veteran was afforded VA examinations in December 2008 and in January 2013. The Board determined that the VA medical opinion expressed in the VA examination in December 2008 on the theory of direct service connection was adequate, but not adequate on the theory of secondary service connection. The Board then afforded the Veteran another VA examination in January 2013 which was adequate on the theory of secondary service connection. As the VA examiners on the VA examinations reviewed the Veteran's history and as medical analysis was applied to the facts of the case to reach the conclusions reached in the opinions, the examinations are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding a medical opinion is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection A Veteran is entitled to VA disability compensation, that is, service connection, for a disability resulting from personal injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service). Generally, to establish entitlement to VA disability compensation, that is, service connection, a Veteran must show: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303 and in 38 C.F.R. § 3.310. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or is aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service connection, the record must show evidence of a current disability, evidence of a service-connected disability, and, evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Competency is distinguished from the credibility and weight of admissible evidence, which are factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. If the evidence is not credible, the evidence has no probative value. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The service personnel records show that the Veteran was trained as a light wheel vehicle mechanic. The service treatment records, including the report of entrance examination, a report of a Medical Board, a report of a Physical Evaluation Board, contain no complaint, finding, history, treatment, or diagnosis of cervical strain or other cervical abnormality. The service treatment records do show that in September 1995 the Veteran complained of low back pain after lifting vehicle parts, batteries and starters, in the motor pool, and the assessment was mechanical low back pain. In August 1996, the Veteran was seen for episodic low back pain as well as pain between the shoulder blades, and the assessment was mechanical low back pain. In November 1996, the Veteran complained of pain in the mid-thoracic area. The pertinent findings were muscle spasms in the area of the shoulder blades as shown by a diagram by the health-care provider. The Veteran was advised to stretch the low back and neck every day. The assessment was mid-thoracic back pain. After service on VA examination in January 1998, range of motion of the neck was normal. In a rating decision in June 1998, the RO granted service connection for arthritis of the feet and assigned a 10 percent rating by analogy to flat feet. VA records in October 2001 included a history of a neck disability since December [2000] based on a MRI. In January 2005, the Veteran filed his claim for VA disability compensation for a neck condition. In a statement in June 2005, the Veteran stated that his neck condition was due to the physicality of his duties in service and that his neck condition is affected by his service-connected disability of the feet. VA records in July 2007 show an assessment of questionable cervical and shoulder impingement. In a statement in August 2008, the Veteran's former spouse, who was married to the Veteran during the time the Veteran was in service, stated that the Veteran injured his back in service. In a statement in October 2008, the Veteran's spouse, who has been married to the Veteran for four years, stated that the Veteran has back pain on a daily basis. On VA examination in December 2008, the Veteran stated that his neck condition began in 1995 at the time he injured his low back. The pertinent findings were tenderness over the shoulder muscles and some limited rotation of the cervical spine. On X-ray, there was no evidence of cervical disc or joint disease. The diagnosis was cervical spine strain. The VA examiner stated that the neck condition was not caused by or related to service. In a rating decision in February 2009, the RO granted service connection for degenerative joint disease of the lumbosacral spine and assigned a 10 percent rating. In January 2013 on VA examination, after a review of the Veteran's history and physical findings, VA examiner expressed opinion that neck strain, if present, was less likely than not proximately due to the service-connected disabilities of the feet and back because there was no biologically plausible mechanism of causation which would allow one to attribute neck strain to the disabilities of the feet and back. In June 2013, Dr. D.C., DC, ATC, stated that the injury in service resulted in degenerative disc disease of the lumbosacral spine, spinal stenosis, sciatica neuralgia, muscle spasm, and atrophy. Analysis The Veteran asserts that cervical strain is due to the in-service lifting injury or, alternatively, due to or aggravated by his service-connected disabilities of the feet and lumbosacral spine. On the basis of the service treatment records alone, the Veteran was seen for mechanical low back pain after a lifting-type injury, and later for mid-thoracic back pain, but a disability of the cervical spine, cervical strain, was not affirmatively shown to have been present, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not warranted. Also strain is not a chronic disease listed in 38 C.F.R. § 3.309, and chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(b) (chronicity and continuity of symptomatology) is not warranted. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection under the regulation creating a presumption of service connection for ceratin chronic diseases manifesting during service and then again at any later date, 38 C.F.R. § 3.303(b), is available only for chronic diseases enumerated in the only regulation listing named chronic diseases, 38 C.F.R. § 3.309(a)). As for service connection based on an initial diagnosis after service under 38 C.F.R. § 3.303(d), after service, although VA records in October 2001 refer to a history since 2000 of a neck disability, which was not further described, and the VA examiner in January 2013 questioned whether cervical strain was currently shown, cervical strain was documented during the pendency of the claim on VA examination in December 2008. As cervical strain was shown during the pendency of the claim, the requirement that that the Veteran have a current disability, which is the first of the three elements required in order to establish service connection is satisfied. See McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (the requirement of a current disability may be met by evidence of the disability at the time of filing or at any point during the pendency of the claim); see Shedden, 1167 (entitlement to VA disability compensation requires: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement, and all three elements must be met). As for the in-service incurrence of an injury, the record does show that the Veteran complained of low back pain after lifting vehicle parts in the motor pool, which is evidence of an injury, the second required element for service connection. As for the final element for service connection, a causal relationship between the current disability and the injury incurred during service, the so-called "nexus" requirement, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A simple medical condition is one capable of lay observation. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). While the Veteran is competent to describe back pain, which may be indicative but not dispositive of a strain and as the diagnosis of a strain falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience, a strain is not a simple medical condition. Also a strain is not the type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, a strain is analogous to an internal disease process, that is, not directly observable, as opposed to either flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg, which are. For this reason, a strain is not the type of condition under case law that has been found to be capable of lay observation. As a strain is not capable of lay observation under Jandreau and by case law, a cervical strain is not a simple medical condition that the Veteran can identify. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to identify or diagnose a cervical strain. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence). Where, as here, there is a question of the diagnosis of a cervical strain, which is not capable of lay observation under Jandreau or by case law, to the extent the Veteran's lay statements are offered as proof of the presence of a cervical strain due to an injury in service or before 2008, the Veteran's lay statements are not competent evidence, and the Veteran's lay statements are not admissible as evidence, that is, the Veteran's lay statements are not to be considered as competent evidence that a cervical strain was present in service and the lay evidence cannot be considered as evidence favorable to claim. As for evidence of a nexus, the Veteran asserts that cervical strain is due to the in-service lifting injury. As the statement is an inference based on facts, it is an opinion rather than a statement of fact. The Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson, at 1316. As previously explained, a strain is not a simple medical condition under Jandreau or by case law and any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the claimed disability and an in-service injury. As for the statements of the Veteran's former spouse and spouse, the witnesses are competent to describe that which they personally observed and they have described the effects of the Veteran's back pain. To the extent the lay statements are offered as evidence that back pain is related to an in-service, the statements are inferences based on facts, that is, opinions rather than statements of fact. As explained a lay person is competent to offer an opinion on a simple medical condition, but in this case cervical strain is not a simple medical condition. And the lay opinions are not competent evidence on the question of whether the postservice cervical strain is due an injury in service. And no factual foundation has been established to show that the lay witnesses are otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between cervical strain and an in-service injury. The Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional. Jandreau, at 1377. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. As for the Veteran describing a contemporaneous medical diagnosis, the medical evidence shows that cervical strain was not shown until 2008, more than 10 years after separation from service in 1996. As for symptoms that later support a diagnosis by a medical professional, the Veteran has not submitted any evidence from a medical professional and there is no evidence of record that cervical strain is attributable to an injury or event in service. The only competent medical evidence of record pertaining to causation or a nexus to service consists of the reports of VA examinations. On the question of direct service connection, on VA examination in December 2008, the VA examiner stated that the neck (cervical) condition was not caused by or related to service. On the question of secondary service connection, that is whether the cervical strain was caused by or aggravated by service-connected disabilities of the feet and back, on VA examination in January 2013, the VA examiner expressed opinion that neck (cervical) strain was less likely than not proximately due to or the result of the service-connected disabilities of the feet and back because there was no biologically plausible mechanism of causation which would allow one to attribute neck strain to the disabilities of the feet and back. Although the VA examiner did not use the term "aggravation," a reasonable inference from the opinion is that "no biologically plausible mechanism of causation," also means that the service-connected disabilities of the feet and back would not induce an aggravated course of cervical strain. The opinions of the VA examiners constitute competent and persuasive medical evidence, which opposes rather than supports the claim. There is no medical evidence to the contrary. As for the statements of Dr. D.C., DC, ATC, the doctor addresses degenerative disc disease of the lumbosacral spine, but not cervical strain and the statements have no probative value on whether cervical strain is due to an injury in service or is caused by or aggravated by the service-connected disabilities of the feet and back. On the basis of the evidence of record, the Board concludes that the preponderance of the evidence is against the claim of service connection for a disability of the cervical spine, cervical strain. As the preponderance of the evidence is against the claims, the benefit-of-the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for a disability of the cervical spine, cervical strain, is denied. REMAND On the claim for increase for degenerative joint disease of the lumbosacral spine on VA examination in January 2013, flexion was to 70 degrees and there was no evidence of objective neurological abnormality. In July 2013, a private physician completed a disability benefits questionnaire and reported flexion to 45 degrees and some neurological findings. As the evidence suggests a material change in the disability, the Board determines that a reexamination is needed to verify the current severity. 38 C.F.R. § 3.327. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination by a VA examiner, who has not previously examined the Veteran, to determine the current severity of the service-connected low back disability. The VA examiner is asked to describe: a). Range of motion of the lumbar spine in degrees of forward flexion and any additional functional loss due to painful movement, weakened movement, fatigue, flare-ups, or repetitive movement; b). Any objective neurological abnormalities of the lumbar spine; and, c). Any incapacitating episodes necessitating bed rest and treatment by a physician, and if so, the duration of the episodes. The Veteran's file must be made available to the VA examiner. 2. After the above development, adjudicate the claim. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the claim the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs