Citation Nr: 1337664 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 07-28 096A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a thoracic spine disability. 3. Entitlement to service connection for a bilateral hip disability. 4. Entitlement to service connection for a neurological disability of the upper extremities. ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to May 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran cancelled a hearing which was to be held in August 2010. He died, unbeknownst to the Board at the time, in February 2013. The matters on appeal were remanded in March 2013 for further development. The appellant has since been substituted in as the claimant. Other issues which were previously on appeal were decided by the Board in November 2011. Still other issues were decided by the RO in August 2013 (in a record found on Virtual VA), and there is no indication of record of an appeal of those determinations. FINDINGS OF FACT 1. The Veteran's cervical and thoracic spine and bilateral hip disorders, as well as his upper extremity neurological disorders, were not manifest in service and were unrelated to service. Arthritis of the cervical and thoracic spine and hips, and neuropathy of the upper extremities, were not manifest to a degree of 10 percent within 1 year of separation. 2. These disorders were not caused or aggravated by the Veteran's service-connected low back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria for service connection for thoracic spine disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 3. The criteria for service connection for bilateral hip disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 4. The criteria for service connection for a neurological disability of the upper extremities are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in November 2006. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the claimant in obtaining evidence; examined the Veteran and/or provided medical opinions in January 2007 and September 2013; and afforded the Veteran the opportunity to give testimony before the Board. The examiners reviewed and considered evidence in the Veteran's claims folder in rendering their opinions, examined the Veteran when possible, and explained their opinions in light of the evidence, and so they are adequate. The Board finds that it owes no further duty to the claimant, in terms of assistance. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file, and the claimant has not contended otherwise. The RO complied with the Board's May 2013 remand to the extent possible (the Veteran died, and so a medical opinion was rendered instead of a VA examination being conducted) by obtaining an adequate VA medical opinion and readjudicating the claims. VA has complied with the notice and assistance requirements and the claimant is not prejudiced by a decision on the claims at this time. The issues before the Board involve claims of entitlement to service connection. It has been claimed that service connection is warranted for the Veteran's cervical spine, thoracic spine, bilateral hip, and upper extremity disabilities, as due to his service-connected low back disability, which is degenerative disc disease, L5-S1, with mild levoscoliosis, or that they were incident to service. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury 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). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis and/or organic disease of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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 which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran's service treatment records show treatment for paraspinous muscle spasms in April 1974, after the Veteran reported falling down stairs. The impression was muscle sprains. In July 1974, the Veteran had a back strain due to lifting a life support net in the high seas. There was no specific indication of the Veteran's cervical or thoracic spine or hips being symptomatic in service, or any indication of upper extremity neuropathy. On service discharge examination in May 1975, the Veteran's spine, musculoskeletal and neurological systems, and upper and lower extremities were normal. Post-service, on VA evaluation in January 1983, the Veteran reported that he was an active participant in a number of sports, including basketball, volleyball, tag football, bicycling, golf, racquetball, tennis, and horseback riding. A March 1983 VA neurology clinic medical record shows an essentially normal neurological examination, with no mention of problems with the Veteran's cervical or thoracic spine or hips, or of neurological problems of his upper extremities. In August 1983, the Veteran complained of a stiff neck since that morning. His range of motion was full. In August 1983, he claimed service connection for seizure problems without claiming service connection for the disabilities at issue. On VA evaluation in June 1989, the Veteran's back had no spinal tenderness, his extremities had a full range of motion, and he was neurologically normal. In April 2002, the Veteran complained of right hip pain for several years. Spine, extremity, and neurological findings were normal. On VA evaluation in July 2004, the Veteran's upper extremity strength and range of motion were normal. The only part of his spine shown to be impaired on VA spine examination in February 2005 was his lumbar spine. On June 2006 VA evaluation, he reported right neck and right upper extremity pain for 1 month. He had hand symptoms with some symptoms suggestive of carpal tunnel syndrome and the remainder of his symptoms suggestive of cervical radiculopathy. Cervical spine osteoarthritis was found later that month. Disc spaces were relatively well maintained. In July 2006, the Veteran stated that neck pain began without trauma in June 2006. In September 2006, he complained of chronic neck, low back, right shoulder, and right hip pain. He reported having pain for almost 33 years, when he fell while in service in 1973. On VA examination in January 2007, the Veteran's claims folder was reviewed. The Veteran reported neck and arm pain and developing mid-back pain over the past year. He also reported developing pain in his hips. X-rays revealed mild scoliosis of his lumbar spine, degenerative changes of his mid-cervical spine, a normal thoracic spine, and early bilateral hip joint space narrowing. The examiner felt that it was less likely than not that the Veteran's low back disability caused or aggravated his cervical spine disability as there was no evidence of significant gait abnormality or gait deviation or asymmetry in motion of his lumbar spine. He felt that the Veteran's mild degenerative joint disease of his hips was more likely than not the result of aging, and that it was less likely than not that it was due to his lumbar strain in service and the recent development of his mild lumbar spine degenerative joint disease. He felt that the Veteran's current upper thoracic back strain was less likely than not caused or aggravated by the Veteran's lumbar strain. Left carpal tunnel syndrome was found on VA electrodiagnostic testing in February 2010. Mild lumbar spine degenerative disc disease was found on VA examination in August 2010. The Veteran failed to report for a VA examination in December 2011. Accordingly, the Board remanded the case for a VA examination in March 2013. However, the Veteran had died in February 2013, and so the RO obtained a VA medical opinion based on a review of the claims folder instead. This occurred in September 2013. In the September 2013 VA medical opinion, the examiner noted that he reviewed the Veteran's claims folder. He opined that the Veteran did not have a peripheral nerve condition that was caused or aggravated by his service or his lumbar spine disability. The rationale was that review of the service treatment records did not reveal a peripheral nerve condition and that review of the Veteran's VA treatment records showed a mild left sided carpal tunnel syndrome. This condition would not be affected by the function of or pain in his lower back. The examiner also found that the Veteran did not have a thoracic spine disability that was caused by or a result of or aggravated by his service or his lumbar spine disability. The rationale was that service treatment records did not reveal any chronic thoracic spine condition, and review of the VA medical records showed pain in the thoracic spine in 2006. Review of his lumbar spine condition did not reveal a condition that would have a negative impact on the thoracic spine, as there was no note of spinal fusion and the last VA examination from 2010 revealed only mild degenerative joint disease (of the lumbar spine). The examiner also found that the Veteran did not have a cervical spine disability that was caused by or a result of or aggravated by his service or his lumbar spine disability. The rationale was that service treatment records did not reveal any chronic cervical spine condition, mild degenerative joint disease of the cervical spine was shown in 2006, and review of his lumbar spine condition did not reveal a condition that would have a negative impact on the cervical spine, as the last VA examination from 2010 revealed only mild degenerative joint disease (of the Veteran's lumbar spine). The examiner also found that the Veteran did not have a hip condition that was caused by or a result of or aggravated by his service or his lumbar spine disability. The rationale was that service treatment records did not reveal a hip condition. X-ray in 2007 revealed only mild degenerative joint disease of the hips. Review of his lumbar spine condition did not reveal a condition that would have a negative impact on the hips, as the last VA examination from 2010 revealed only mild degenerative joint disease of the lumbar spine. Based on the evidence, the Board finds that service connection is not warranted for the Veteran's current cervical or thoracic spine disability, or for his bilateral hip disability, or for his left upper extremity carpal tunnel syndrome. These were not manifest in service and arthritis or carpal tunnel syndrome was not manifest to a degree of 10 percent within 1 year of separation. Moreover, no competent evidence relates any of them to service. To the contrary, the September 2013 VA examination report indicates that they were not caused or aggravated by service, and they were each first shown many years after service after complaints of problems for short durations. Additionally, the preponderance of the evidence indicates that they were not caused or aggravated by the Veteran's service-connected low back disability. The examiner in January 2007 reached this conclusion and gave supporting reasons, as did the examiner in September 2013. There is one report by the Veteran, of continued symptoms since service, in September 2006. However, his earlier reports and actions (in claiming other problems but not these, and in engaging in a multitude of sports) contradict this, and earlier clinical findings were either normal or were not indicative of the chronic disabilities now shown. Of course, the Veteran, being a layperson, was not capable of relating his current disabilities to service, as this is a complex medical matter which requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).Accordingly, the Board finds that his reports of continuity since service are not sufficient to establish service connection. The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for cervical spine disability, thoracic spine disability, bilateral hip disability, and neurological disability of the upper extremities is not warranted. The appeals are denied. ____________________________________________ Michael Martin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs