Citation Nr: 1337123 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 09-28 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a low back disability to include degenerative joint disease (DJD) and degenerative disc disease (DDD). 2. Entitlement to service connection for a neck disability, to include DDD. ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from September 28, 1976 to June 6, 1985. However, only his period of service from September 28, 1976 to April 9, 1982 is considered honorable active duty service, and his service from April 10, 1982, to June 6, 1985 is considered dishonorable for VA compensation purposes. These matters initially came before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In his August 2009 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge at the RO. He subsequently withdrew his hearing request the same month. In March 2011 and November 2012, the Board remanded these matters for further development. As explained further below, the Board sought a Veterans Health Administration (VHA) opinion in September 2013, which is fully adequate. The Veteran submitted a response to the opinion, which is essentially duplicative of his earlier contentions and which does not require any further addendum opinion or readjudication by the RO. Indeed, the medical records submitted with the statement are already of record. The statement itself merely expresses disagreement with the VHA examiner's conclusion and indicates his belief that his congenitally narrow central canal should have been discussed. As noted in the analysis below, the Board finds that there was no need for the examiner to discuss the congenital condition, which is this case is not responsible for the claimed symptoms on appeal. In an October 2012 statement, the Veteran raised the issue of entitlement to service connection for a dental disability, to include on the basis of whether new and material evidence has been received. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A low back disability, to include DJD and DDD, did not have its clinical onset in service and is not otherwise related to service. 2. A neck disability, to include DDD, did not have its clinical onset in service and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability, to include DJD and DDD, have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2013). 2. The criteria for entitlement to service connection for a neck disability, to include DDD, have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA In a June and August 2008 letters, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Relevant service treatment and other medical records have been associated with the claims file. The Veteran reported treatment from private sources; these records were requested or are already in the file. Social Security Administration (SSA) records are also contained in the file. The Veteran was afforded VA examinations in June 2011 and January 2013. As some outstanding questions remained, the Board obtained a VHA medical opinion in September 2013. The Veteran was given notice of the opinion and responded, waiving AOJ review of the opinion and his submitted statement (records submitted were duplicates and already in the file prior to the opinion). The Board finds that when viewed in their totality, the VA examination reports and VHA opinion are fully adequate because they address the etiology of the currently diagnosed disabilities of the low back and neck and provide an explanation for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (In determining the probative weight, a medical opinion will be considered more probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions). The Board finds that the objectives of the November 2012 Board remand have been satisfied as the VHA opinion clarified outstanding questions. The duties to notify and to assist have been met. Service As previously noted, the Veteran's period of service from April 10, 1982, through June 6, 1985, was determined to be dishonorable for VA purposes. A May 2008 Administrative Decision determined that the Veteran's actions during his second period of service constituted willful and persistent misconduct. A discharge from service under other than honorable conditions (UOTHC), issued because of willful and persistent misconduct, will be considered to have been issued under dishonorable conditions, and bars entitlement to veteran's benefits. 38 C.F.R. § 3.12(d)(4). However, the Veteran's service from September 28, 1976 to April 9, 1982 is honorable, and benefits can be awarded for disabilities incurred during that period. Only the service treatment records from September 28, 1976 to April 9, 1982 are to be considered for positive evidence purposes when determining whether or not service connection should be granted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110; 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While back and neck disabilities generally are not listed, "arthritis" (also known as degenerative joint disease or DJD) is considered a chronic disease. 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. Shedden, 381 F.3d at 1167; see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Where a veteran served continuously for ninety (90) days or more and a chronic disease such as arthritis, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Here, the one year after "termination from service" also followed a period of service that VA is not able to consider for service connection purposes under § 3.12. Regardless, in fairness to the Veteran and in the spirit of the reasonable doubt rule, the Board will consider whether any arthritis became manifested to a degree of 10 percent or more within one year after June 6, 1985. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013) (Essentially stating that when the claim is in equipoise, the reasonable doubt rule is for application). In adjudicating this claim, the Board must assess the competence and credibility of the Veteran and probative value of the evidence of record in its whole. See Washington v. Nicholson, 19 Vet. App. 362 (2005), 38 C.F.R. § 3.159(a)(2) (2013) (Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. 498. Low back disability The Board finds the Veteran has a current diagnosis of both DJD and DDD of the lumbar spine (see July 2007 MRI) and that there although there were some complaints of back pain in service, there is no nexus between the current low back disabilities and service. Shedden, 381 F.3d at 1167. Pertinent service treatment records from the honorable period of service for the lumbar spine include an August 1976 enlistment report of medical examination (RME) showing a clinically normal spine. On the report of medical history (RMH), the Veteran denied recurrent back pain. In July 1980, he complained of low back pain, which was noted upon palpation although there was no redness or swelling. Similarly, in August 1980, a service treatment record shows similar complaints, but again his back had no redness or swelling and the range of motion was normal. In November 1980, a RME showed the Veteran's spine was clinically normal and he again denied recurrent back pain on the RMH. The Veteran contended in his October 2007 claim that he became disabled by lifting and unloading "8 inch round" by hand while on duty in Germany. In January and May 2008 statements he asserted that he slipped and fell loading ammunition. However, he reported to several medical providers that he only had pain for one year prior to 2007 or 2008 (see November 2007 Dr. F. and February 2008 P.C.M.H. record). In June 2008 and in October 2012, he stated he was riding in a tank and hurt himself when he was knocked down by a tree branch. (Assertions regarding a congenitally narrow central spinal canal in an October 2008 notice of disagreement; August 2009 appeal and October 2013 statement are addressed below.) In May 2008, V.R. stated that she remembered speaking to the Veteran by phone in August 1981 on her birthday; he told her he had severe low back pain due to a fall while working. In June 2008, S.H. (the Veteran's ex-wife) stated she was married to the Veteran from April 1981 to November 1984. She remembered that she went with the Veteran to two doctor visits in Germany for his back during the marriage and that the doctor could not give a medical diagnosis at the time. The Board finds the Veteran competent to state what happened to him in service under 38 C.F.R. § 3.159(a)(2) and to describe back symptoms. The record shows the Veteran has been consistent to the extent service treatment records show complaints involving his back in service. Caluza, 7 Vet. App. 498. V.R. did not personally observe his disability- she is competent to report her recollection of what he told her, but this adds nothing to the record that is not already brought out by the Veteran's own statements. S.H. observed the Veteran and her account of visiting the doctor is supported by the service treatment records; she is competent and credible. Her statements are assigned some weight. Regarding a tank incident in service, a December 1983 record mentions the Veteran fell off a tank. However, this incident is not to be considered as positive evidence toward service connection because it is not from the honorable period of service. 38 C.F.R. § 3.12(d). The Board finds that the claim fails on the nexus element for both diagnosed DJD and DDD. For DJD of the low back, the January 2013 VA examiner considered the Veteran's report that he injured his low back while on active duty in 1980; he claimed he fell off a tank when a tree branch hit him. Low back pain continued to bother him through military service, and then he was diagnosed with a herniated disc in 2007. The examiner considered the service treatment records, but found that when he was given a physical in November 1980 an evaluation of his spine was normal. The examiner concluded that it was less likely than not that the low back disability was incurred in or caused by the claimed event or injury in service. In so finding, the examiner noted the lack of low back diagnosis in August 1980, the November 1980 normal evaluation of the spine and the lack of treatment for or evidence of a fall involving a tank and tree branch from the honorable period of service. There was no evidence of any treatment in 1985 after all his service. With respect to DDD for the low back, the January 2013 VA examiner did not address this and so in September 2013, the Board sought a VHA opinion. A VHA neurosurgeon conducted a detailed and extensive review of the medical records and reviewed current medical literature regarding DDD. He explained that his opinion and response was based on file review, literature review and his own experience as a practicing neurosurgeon for the past 33 years with the disease entity of DDD. The examiner concluded that it was less than 50 percent likely that the lumbar DDD had its onset during the period of service from April 1976 to April 1982 (the period of service for consideration) because the historical claims of injury as reported were not representative of trauma significant enough nor in the manner of axial loading that would be needed to begin the processes associated with subsequent DDD. He did acknowledge it was impossible to determine exact onset, but cited to a scholarly journal which noted that "various processes weaken a disc before disruption" and these various processes also impair its healing response. The literature concludes that DDD is a "response to progressive structural failure." Further, the same information caused him to conclude that it was less likely than not that his DDD had its onset following separation from all service in June 1985. He also explained, and the literature supported, that neither DDD nor DJD were congenital conditions. On the issue of DJD, the Board finds the January 2013 VA examination report to be the most probative evidence in the file. For DDD, the Board finds the VHA opinion to be highly probative. These opinions show that the file was reviewed, the Veteran's assertions were considered, correct facts were cited, rationale was given for the opinions rendered, and, for the VHA opinion, medical literature was relied upon in support. See Nieves-Rodriguez, 22 Vet. App. 29. The Board assigns the opinions great weight. Because DJD is a presumptive disability, the continuity of symptomatology avenue of entitlement has been considered, however, the Board finds it does not overcome the January 2013 VA examination report opinion. See Walker, 708 F.3d 1331. The Board finds the Veteran did not specifically state he had continuing back symptoms since service and that he told other medical practitioners in 2007 and 2008 he only had a one year history of problems. He also did not make statements regarding back pain or its severity within one year after separation from service. See 38 U.S.C.A. § 1112; 38 C.F.R. § 3.303, 3.307, 3.309. The Board also finds, relying on the VHA opinion, that service connection for DDD is not warranted. While the June 2011 VA examiner stated that the "degenerative disease" of the lumbar spine was a superimposed injury to the Veteran's congenitally narrow central canal, no further explanation was provided. The Board finds this opinion to be confusing and ultimately nonresponsive the central question at issue and assigns it no weight. In response to the October 2013 VHA opinion, the Veteran stated his belief that his medical records were not read entirely; he stated he had a congenitally narrow central canal along with DDD. He asserted that a congenitally narrow spinal central canal could be caused by heredity, arthritis, tumors, spondylolisthesis, aging or trauma. He asserted the congenitally narrow canal was not addressed by the opinion. He also seemed to be attempting to make the argument that the presumption of aggravation should apply. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b)(2) (2013). He referred to the July 2007 MRI report which noted: "a congenitally narrow central canal"; multilevel disc disease; disc herniation possibly affecting nerve roots; moderate lower lumbar facet degenerative disease; and mild levolumbar scoliosis. While a "narrow central canal" may have been a finding in an MRI report, the Board finds that the Veteran's diagnosed disabilities are DDD and DJD. These were not determined to be congenital conditions, per the VHA examiner. There is also no evidence or allegation that the presumption of aggravation is appropriate to apply here because DDD and DJD were not noted upon entry into service. The Board finds that the cause of a congenitally narrow central canal is irrelevant here. Weighing the evidence, the Board finds that service connection is not warranted for a low back disability, to include DDD and DJD. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d). The reasonable doubt rule is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Neck disability The Board finds the Veteran has a current diagnosis of DDD of the neck or cervical spine (see June 2011 X-ray). As disc disease is a form of arthritis of the vertebral discs, it is a chronic disease under 38 C.F.R. § 3.309(a) and the continuity of symptomatology is for consideration. See Walker, 708 F.3d 1331. Regarding incurrence, the Board finds that the Veteran did have muscle strain in service. The Veteran alleged in his notice of disagreement he has neck pain and in October 2012 he stated that he had trauma to his head/neck area that should be supported by his dental records. However, upon review, the service dental records do not support such an assertion. The relevant service treatment records are the August 1976 enlistment examination (the spine was normal and recurrent back pain was denied); the March 1977 service treatment records (showing an assessment of cervical muscle strain); and the November 1980 RME (the spine was normal and recurrent back pain was denied). The January 2013 VA examiner noted that the Veteran was diagnosed with minimal DDD of the cervical spine. His contentions were noted. The examiner saw the 1977 service treatment record and that the 1980 RME showed a normal spine. He found no documentation for treatment of a tank injury involving the neck for the honorable period of service. The examiner found it was less likely than not that the disability was incurred in or caused by the claimed event or injury in service. The examiner noted the diagnosis of cervical muscle strain in service but also saw that the November 1980 RME showed a normal evaluation of the spine. There was no evidence of any treatment within a year after all service. As explained, the VHA neurosurgeon stated he conducted a detailed and extensive review of the medical records and reviewed current medical literature regarding DDD. His opinion (based on file review, literature review and his own extensive experience as a practicing neurosurgeon) was that DDD was not a congenital condition. This opinion was supported by the literature, which defined it as a "response to progressive structural failure." The neurosurgeon also explained the claims of injury were not representative of trauma significant enough to cause DDD. Considering the January 2013 and VHA opinions, the Board finds the weight is against the claim. The incident and treatment in service was considered by each clinician and the opinions are complete and responsive to the issue of etiology of the current DDD. See Nieves-Rodriguez, 22 Vet. App. 295. For the same reasons explained above, the Board finds any argument regarding a congenital condition to be without merit. Again, as a presumptive condition, a showing of continuity of symptomatology could enable an award of service connection here. However, continuity is disrupted by the normal findings and lack of complaints on examination in 1980. Moreover, while the post-service records contain many instances of treatment for the low back, dating from 2007, such records did not reflect complaints regarding the cervical spine. If the Veteran was indeed experiencing continuous neck symptoms, it would be reasonable to expect that he would have raised such complaints in the course of his orthopedic treatment. The fact that he did not strongly suggests an absence of continuous neck symptomatology. Thus, neither the medical nor lay evidence enables a finding of continuous neck symptomatology here, and thus service connection is not warranted on this basis. Similarly, as cervical DDD was not shown within the first post-service year, an allowance on a presumptive basis is also precluded. For the above reasons, the reasonable doubt rule is not for application and service connection is not warranted for a neck disability, to include DDD. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.102. ORDER Service connection for a low back disability, to include degenerative joint disease and degenerative disc disease, is denied. Service connection for a neck disability, to include degenerative disc disease, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs