Citation Nr: 1337772 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-30 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for intercostal nerve syndrome. ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to July 1991, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2007 and July 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In the June 2007 rating decision, the RO, in relevant part, denied entitlement to service connection for intercostal nerve syndrome. In the July 2010 rating decision, the RO, in relevant part, denied entitlement to service connection for the Veteran's claimed cervical and lumbar spine disabilities. The issue of entitlement to service connection for intercostal nerve syndrome is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran has a current cervical spine disability that was at least as likely as not incurred during or as a result of his active service. 2. The Veteran has a current lumbar spine disability that was at least as likely as not incurred during or as a result of his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 2. The criteria for entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to service connection for cervical and lumbar spine disabilities. As this represents a complete grant of the benefits sought on appeal with respect to these claims, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013), is necessary at this time. II. Service Connection A. Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted for certain chronic diseases, including arthritis, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112(a) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). When service connection for chronic diseases is at issue, the second and third elements for service connection may be established by showing continuity of symptomatology. See Walker, 701 F.3d 1331. In making all determinations, the Board must fully consider the lay assertions of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson, 2 Vet. App. at 618. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 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 claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Analysis Turning to the evidence of record, the Veteran has clearly been shown to have degenerative changes of the cervical and lumbar spine. In December 2009 certification reports, the Veteran's private physician, Jose A. Quintos, M.D., noted that November 2009 X-rays of the Veteran's cervical spine showed extensive degenerative changes along the entire cervical spine and lumbar spine, with osteophytes along the anterior border of both cervical and lumbar vertebral bodies. These reports noted a loss of disc space between C3-C4 and L5-S1. Additionally, X-rays results reported in the Veteran' September 2011 VA examination, documented degenerative changes in the form of cervical spondylosis deformans, and loss of normal cervical lordosis. The report additionally noted that arthritis of the lumbar spine was confirmed by X-rays. Based on these findings, the VA examiner diagnosed cervical spondylosis and lumbar spondylosis. Based on the foregoing evidence, the Board finds that the first required element for service connection for cervical and lumbar spine disabilities has been met. See Walker, supra. With respect to in-service incurrence of degenerative arthritis of the Veteran's cervical and lumbar spine, a review of his service treatment records (STRs) reveals an absence of evidence of complaints of, treatment for, or diagnoses of cervical or lumbar spine disabilities. While complaints of shoulder pain were noted, this was not specifically described to involve either spinal segment. Nonetheless, the Veteran has contended that his spine disabilities developed as a result of strenuous duties he performed as an air cargo specialist. He specifically reported that he was required to perform a lot of lifting to select, palletize, and ship all types of parts and supplies via transport aircraft. He also manually lifted cargo received from other locations. He reported that he completed this duty assignment for three years. He was also assigned duties in supply material storage and distribution, and in inventory management for more than 10 years. These duties also reportedly required a great deal of lifting of heavy objects for storage, and for issuance and delivery. The Veteran's contentions regarding his in-service duties are credible and are supported by his personnel records. Namely, his multiple Forms DD 214 show that he was assigned military occupational specialties (MOSs) as a material facilities specialist, a material facilities supervisor, an air transportation supervisor, an inventory management supervisor, and a material storage and distribution supervisor over distinct periods of time. His Forms DD 214 additionally reflects training as an air cargo specialist and air freight specialist. Based on this evidence, the Board will afford the Veteran the full benefit of the doubt and find that his multiple MOS assignments over a period of many years of service reflect a significant level of strenuous duty requiring heavy lifting and transport of heavy cargo. Accordingly, the second required element for service connection for cervical and lumbar spine disabilities has been met. See Walker, supra. The Board is now left to consider whether there is a nexus between the Veteran's currently diagnosed cervical and lumbar spine disabilities and his noted in-service strenuous duties. Here, the evidence of record contains a November 2006 evaluation report from Arturo M. P. Arkoncel, III, M.D., which noted the Veteran's complaints of shooting pain in his upper and mid back. Dr. Arkoncel noted that the Veteran's complaints of severe back pain dated back to his time in active service. In the previously referenced December 2009 certification reports, Dr. Quintos clearly documented the Veteran's medical and military history, and fully described the degenerative process involved in his cervical and lumbar spine. In December 2009 summaries of statements in support of the Veteran's claims, Dr. Quintos again noted the Veteran's military history, his current diagnoses of degenerative arthritis, and gave the opinion that the Veteran's duties, which involved a lot of manual lifting of heavy objects, created major repetitive traumas to his weight bearing joints, including his cervical and lumbar spine, and that these major repetitive traumas represented the beginning of the eventual deterioration of his cervical and lumbar spine. The Board finds that Dr. Quintos' opinions regarding the etiology of the Veteran's cervical and lumbar degenerative arthritis are fully informed, fully articulated, and well-reasoned. Dr. Quintos was clearly familiar with the Veteran's military history and he provided a thorough review of the Veteran's current medical history and clinical symptoms. Based on all the evidence, Dr. Quintos provided clear opinions noting that the Veteran's current degenerative changes resulted from the strenuous duties that he completed during his service. See Nieves-Rodriguez, 22 Vet. App. at 304. Accordingly, the Board will afford Dr. Quintos' opinions significant probative value, and as such, the Board finds that the final required element for service connection for the Veteran's claimed spine disabilities has been met. See Walker, supra. In reaching this determination, the Board notes that the September 2011 VA examination report of record reached the conclusion that it was less likely as not that the Veteran's claimed cervical and lumbar spine disabilities were incurred or caused by his service. Notably, however, the examiner largely based this determination on an absence of evidence of cervical and lumbar spine disability in the Veteran's STRs. See Dalton, 21 Vet. App. 23, (holding that an examination was inadequate where the examiner did not comment on the Veteran's reports, but instead relied on an absence of medical records to provide a negative opinion). Additionally, the examiner indicated that the Veteran's degenerative conditions were not diagnosed until 2009, thereby insinuating a lack of disability prior to that date. Most notably, the examiner did not consider earlier evidence of cervical and lumbar spine disability of record. Based on these discrepancies, the Board affords the September 2011 VA examiner's opinion little probative value. In sum, the Board finds that all required elements to establish service connection for cervical and lumbar spine disabilities have been met. The Veteran has current diagnoses of degenerative arthritis, he completed many years of strenuous physical activity, including heavy lifting, during service, and the medical evidence of record has adequately established a nexus between his current cervical and lumbar spine diagnoses and his active service. See 38 C.F.R. § 3.303 (2013). Accordingly, all doubt with respect to these claims is resolved in favor of the Veteran and his claims for service connection for cervical and lumbar spine disabilities are granted. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for a lumbar spine disability is granted. REMAND The Veteran's remaining claim on appeal is that of entitlement to service connection for intercostal nerve syndrome. Unfortunately, a remand is required with respect to this issue. Following the issuance of the June 2007 rating decision that denied entitlement to service connection for this disability, the Veteran submitted a June 2008 statement indicating that he wished to appeal, inter alia, the decision to deny that claim. This submission is accepted as a timely notice of disagreement with the June 2007 rating decision that denied service connection for intercostal nerve syndrome. See Gallegos v. Gober, 14 Vet. App. 50 (2000). The RO has not yet issued the Veteran a statement of the case (SOC) with respect to the Veteran's claim for service connection for intercostal nerve syndrome. As such, before the Board can consider this claim on appeal, it is required to remand it for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, this claim is REMANDED for the following action: Send the Veteran a statement of the case with respect to the issue of entitlement to service connection for intercostal nerve syndrome. If he perfects his appeal by submitting a timely and adequate substantive appeal on this issue, then the issue should be returned to the Board for further appellate procedure. The Veteran 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. 2013). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs