Citation Nr: 1337140 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 08-27 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for left shoulder disorder, to include as secondary to a herniated disc disorder. 3. Entitlement to service connection for a headache disorder, to include as secondary to herniated disc disorder and/or a left shoulder disorder. 4. Entitlement to service connection for a neurological disorder, to include as secondary to a herniated disc disorder and/or a left shoulder disorder. 5. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a herniated disc disorder and/or a left shoulder disorder. 6. Entitlement to service connection for a sleep disorder, to include as secondary to a herniated disc disorder and/or a left shoulder disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served in the Navy Reserves from May 2003 to September 2006, to include a period of active duty for training (ACDUTRA) from June 19, 2005, to July 4, 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA). A videoconference hearing was held in February 2010 before the undersigned Veterans Law Judge (VLJ), sitting in Washington, D.C. A copy of the transcript of that hearing is of record. The Board remanded the claims in May 2010 and April 2013 for additional evidentiary development. The development requested has been successfully obtained, and the claims have been returned to the Board for further appellate consideration. It is noted that issue #1 on the title page was previously classified as entitlement to service connection for a herniated disc disorder. In the decision below, it is noted that current VA examination shows that the diagnosis is now described as C4-C5, C5-C6, C6-C7 multilevel minimal to mild degenerative disc disease (DDD). The claim is granted in the decision below, and the claim is now classified as on the title page. The Board notes that the Veteran was diagnosed as having herniated discs in the lumbar and thoracic spine in 2005. That aspect of the Veteran's claim will be addressed in the remand that follows. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The issues of entitlement to service connection for a left shoulder disorder, a headache disorder, a neurological disorder, an acquired psychiatric disorder, and for a sleep disorder (as secondary to service-connected cervical spine herniated discs), are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is competent and credible evidence indicating that the Veteran likely as not developed multilevel cervical spine DDD while in the military. CONCLUSION OF LAW The Veteran's multilevel cervical spine DDD is presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 202). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). Subsequent judicial decisions have clarified the duties to notify and assist imposed by the VCAA, to include Pelegrini v. Principi, 18 Vet. App. 112 (2004), Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 ((Fed. Cir. 2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Considering the claim on appeal in light of the above-noted legal authority, and in light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim as to entitlement to service connection for a cervical spine disorder has been accomplished. Service Connection The record reflects that the Veteran served in the Navy Reserves as a construction worker, and he contends that during a period of ACDUTRA, he injured his neck. He claims that as a result of this injury, service connection is warranted. Service connection is granted if it is shown the Veteran has disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303(a), 3.306 (2012). DDD/arthritis is considered to be a degenerative or chronic condition, per se; once diagnosed, it never resolves. Therefore, it will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012). So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability - or at least has since filing his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). A disorder also may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or was seen in service with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(b) (2012); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In order to establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b) (2012). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, 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, (e.g., a broken leg, separated shoulder, flat feet, varicose veins, etc.), (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, 1377 (Fed. Cir. 2007). So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a) (West 2002 & Supp. 2012). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2) (2012). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97 (1997). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). In determining whether service connection is warranted for a claimed disability, VA adjudicators have the responsibility of determining whether the evidence supports the claim or is in relative equipoise (i.e., about evenly balanced for and against the claim), with the Veteran prevailing in either event. Conversely, the claim will be denied if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All reasonable doubt concerning any issue material to the determination is resolved in the Veteran's favor. 38 CFR § 3.102 (2012). Concerning the threshold requirement that the Veteran first show he has the claimed disorder - which, here, is DDD of osteoarthritis of the cervical segment of his spine neck. Degenerative arthritis (which includes hypertrophic or osteoarthritis) must be objectively confirmed by radiographic imaging findings such as X-ray or magnetic resonance imaging (MRI). See 38 C.F.R. § 4.71a, DC 5003. See also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part and vacated and remanded in part sub nom., Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) (indicating that pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). Private X-ray in July 2005 showed degenerative changes in the cervical spine at C6-7 levels. MRI of the cervical spine in January 2008 showed degenerative changes and a bulging disc in the cervical spine, and, VA examination in June 2013 reflects diagnosis of multilevel DDD in the cervical spine. According to the Court's holding in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the requirement of current disability is satisfied when the claimant has the alleged disability at the time the claim for VA disability compensation is filed or during the pendency of the claim. And service connection may be granted even though the disability resolves prior to VA's adjudication of the claim. Hence, resolution of these claims ultimately turns instead on whether there also is the required probative (meaning competent and credible) evidence attributing these claimed disorders to the Veteran's military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("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 a disease incurred in service."). Active military, naval, or air service includes any period of AD or ACDUTRA during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from injury, but not disease, incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (24), 106 (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(a), (d) (2012). The Court, however, has clarified that the language of 38 U.S.C. §§ 101 and 1112-1137 clearly indicates that the presumptions of service connection and aggravation do not apply where the claim is based on a period of ACDUTRA or INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). To establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d) (West 2002 & Supp. 2012); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., the Veteran's prior period of AD) does not obviate the need for him to establish that he also is a "Veteran" for purposes of a period of ACDUTRA if the claim for VA benefits is premised on the period of ACDUTRA. See Mercado- Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for him to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury, but not disease, incurred or aggravated during INACDUTRA. Id; see also Paulson v. Brown, 7 Vet. App. 466, 470 (1995). ACDUTRA includes full-time duty performed by members of the Armed Forces Reserves or the National Guard of any state. 38 C.F.R. § 3.6(c) (2012). National Guard duty is distinguishable from other Reserve service, however, in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." See Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. The claimant in this appeal had service that included a period of ACDUTRA from June 19, 2005, to July 3, 2005. There is clear evidence that the Veteran sustained a lifting injury during this period in June 2005. At his personal hearing in 2010, he noted that the injury occurred when a heavy steel girder he was carrying with other sailors fell on his neck and shoulder. Physical Evaluation Board (PEB) documents reflect that the Veteran received an honorable discharge for medical reasons from the Navy Reserves due to left shoulder problems, left sided herniated disc in the thoracic spine with mild indentation of the thecal sac by MRI report. Specific finding regarding the cervical spine were not noted. It is also noted by the Board that the evidence reflects preservice injuries to the neck and shoulder, to include post motor vehicle accident (MVA) in 2004. There was also report of injuries to the neck and shoulder after a fall from a water truck in 2005 and in another MVA that same year. As pointed out by the Board in the April 2013 remand decision, the dates of all of his claimed injuries involving the neck are not clear, but it is clear that prior to his inservice June 2005 lifting injury, there was some concern during his 2004 Annual Certification of Physical Condition, and he had a positive risk screening in 2004 which provided for a waiver of most physical activity. It is also clear that the Veteran was engaged with Workman's Compensation in 2004, which is also prior to the inservice injury. The Board's current review of the record reflects that cervical spine degenerative changes were noted in a private report in July 2005 and upon MRI in January 2008. The Veteran was examined by VA in February 2012, but the report was found to be inadequate to adequately address the medical questions at hand, to include whether a neck disorder of service origin existed. An addendum was provided with little detail and only an opinion that "the claimed condition" (presumably the Veteran's left shoulder condition), was not of service origin. The Board finds little probative value in these reports and does not consider either to be probative evidence concerning this determinative issue of causation, at least as it relates to DDD of the cervical spine. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Additional VA examination was conducted in June 2013. That exam showed diagnosis of DDD in the cervical spine. That report includes an opinion which does not support the Veteran's claim. The examiner concluded that he/she could not opine as to cervical spine etiology without resorting to speculation as to whether it was at least as likely as not (50 percent or greater probability) that the Veteran's neck disorder was either caused, or aggravated by injury occurring during ACDUTRA in June 2005, apparently referencing that the Veteran had had multiple injuries to the neck over the years, both before and after the ACDUTRA incidence. The Board notes that statement such as "without resorting to mere speculation" are inconclusive as to the origin of a disorder and generally cannot be employed as suggestive of a linkage between the disorder and the Veteran's military service. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). However, these types of opinions also cannot be used to rule out this purported correlation, either. Ultimately, noncommittal opinions like this amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (2012) (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). An etiological opinion, however, has to be viewed in its entire context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). Moreover, additional precedent cases have been more recently issued shedding further light on how to properly assess and determine the probative value of these noncommittal opinions. Notably for instance, in Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008), the U. S. Court of Appeals for the Federal Circuit indicated a determination regarding service connection requires consideration of all pertinent medical and lay evidence, including medical opinions that do not state definitively when a particular disorder or condition began; therefore, classifying a medical opinion as "non-evidence" is "troubling." In Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009), the Federal Circuit Court more recently held that an examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection; therefore, it is not pertinent evidence regarding service connection. The remainder of the report, however, must be considered as evidence of whether the disability was incurred in service. With consideration of the above laws and regulations, and given the fact that the first objective findings of DJD of the cervical spine, as supported by the radiographic studies, was on July 28, 2005, which was one month after the ACDUTRA injury, the Board may presume this disorder was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012). All reasonable doubt was resolved in the Veteran's favor in reaching this determination. ORDER The claim for entitlement to service connection for multilevel DDD of the cervical spine granted. REMAND It is also the Veteran's claim that he has a left shoulder disorder, a chronic headache disorder, a neurological disorder, an acquired psychiatric disorder, and a chronic sleep disorder, to include as due to service-connected cervical spine disorder. Moreover, subsequent to the decision above, the medical question remains as to whether a herniated disc of the thoracic or lumbar spine is present, and, if so, whether such is of service origin or associated with the now service-connected multilevel DDD of the cervical spine. Unfortunately, and for reasons explained below, in order to comply with the legal duty to assist the Veteran, the Board finds that a remand is necessary to address the claims listed above for additional development action. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (2012). In the decision above, service connection is granted for multilevel DDD of the cervical spine. In view of this development, the RO must now address whether the Veteran has a left shoulder disorder, a chronic headache disorder, a neurological disorder, an acquired psychiatric disorder, or a chronic sleep disorder, which are secondary to the service-connected cervical spine condition. 38 C.F.R. § 3.310 (2012); Allen, supra. A contemporaneous examination must be conducted to address the medical questions raised by this new development. The appropriate examiner will also be requested to address whether service connection for herniated discs is warranted. It is further noted by the Board that although no chronic left shoulder or peripheral disorder was indicated at the time of VA examination in 2013, the Veteran continues to report such symptoms, and diagnoses of these disorders were noted on past medical records. The Veteran and his representative continue to assert that current manifestations are secondary to the ACDUTRA injury. Similarly, it is claimed that the Veteran has chronic headaches and a sleep disorder due to his cervical spine disorder and that his major depression is aggravated by his neck condition. It is unclear as to whether herniated discs of the thoracic or lumbar spine are present, but diagnoses of such were noted in the past. At any rate, these medical questions must be addressed by appropriate examiners. Thus, the Board finds that, after all outstanding medical records are associated with the claims file, contemporaneous and thorough VA examinations (which take into account the recent development that multilevel DDD of the cervical spine is of service origin) would be helpful in resolving the issue on appeal. See Colayong v. West, 12 Vet. App. 524, 532 (1999); Goss v. Brown, 9 Vet. App. 109, 114 (1996). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his spine (thoracic and/or lumbar), left shoulder, headaches, neurological complaints, an acquired psychiatric disorder, or headaches, on appeal. Any records that are not currently included in the claims file should be obtained and added to the file. With any necessary authorization from the Veteran, the AMC should attempt to obtain copies of pertinent treatment records identified by the Veteran that are not currently of record. All efforts to obtain these records must be documented in the claims file. If any records cannot be obtained, it should be so stated, and Veteran is to be informed of such. If pertinent records are received, the AMC should ensure that VCAA examination and medical opinion requirements under 38 C.F.R. § 3.159(c)(4) are met as to this issue. 2. Schedule the Veteran for the appropriate examinations, to determine whether he has chronic disabilities involving the thoracic or lumbar spine, the left shoulder, headaches, a neurological disorder, an acquired psychiatric disorder, or a sleep disorder, and, if so, whether such is at least as likely as not related to the service-connected cervical spine disorder. In addition, the opinion must address whether such symptoms are aggravated by the service-connected cervical spine condition. The appropriate examiner should also address whether thoracic or lumbar herniated discs are present, and, if so, whether such are of service origin or are secondary to the cervical spine disorder. Again, the opinion must address whether any condition found is aggravated by the cervical spine disorder. The entire claims folder must be made available to the examiners in conjunction with the examinations. 3. After assuring compliance with the above development, as well as with any other notice and development action required by law, the RO should readjudicate the claims for service connection for a back disability, other than for a cervical spine disorder, a left shoulder disorder, headaches, a neurological disorder, an acquired psychiatric disorder, and a sleep disorder, and to include whether any such symptoms were caused or aggravated by the service-connected cervical spine condition. If any claim is denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), and given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs