Citation Nr: 1338432 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-30 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the cervical spine. 2. Entitlement to service connection for degenerative disc disease of the lumbar spine. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1977 to May 1978. He had additional service, active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the Naval Reserves and the Army National Guard. This case comes to the Board of Veterans' Appeals (Board) on appeal of a June and August 2009 rating decisions of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2011, a videoconference board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The issue of service connection for hypertension 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. FINDINGS OF FACT 1. Degenerative disc disease of the cervical spine was not evident during active service or until many years thereafter and is not shown to have been caused by any in-service event, including any disease or injury sustained during ACDUTRA or INACDUTRA. 2. Degenerative disc disease of the lumbar spine was not evident during active service or until many years thereafter and is not shown to have been caused by any in-service event, including any disease or injury sustained during ACDUTRA or INACDUTRA. CONCLUSIONS OF LAW 1. Degenerative disc disease of the cervical spine was neither incurred in nor aggravated by service nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 101(21), (24), 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309 (2013). 2. Degenerative disc disease of the lumbar spine was neither incurred in nor aggravated by service nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 101(21), (24), 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of the claims. December 2008 and July 2009 letters explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded a VA medical examination in February 2009. The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2013). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in 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. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Id. Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumptive service connection for certain chronic diseases) for the periods of ACDUTRA or INACDUTRA is not appropriate. ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 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.); Layno, 6 Vet. App. at 469-71 (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, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Degenerative Disc Disease of the Cervical and Lumbar Spine The Veteran contends that service connection is warranted for degenerative disc disease of the lumbar and cervical segments of the spine. During testimony at the Board hearing in March 2011, he testified that his spinal disabilities were the result of the physical demands of the training that he underwent while performing ACDUTRA and INACDUTRA, particularly that time spent with the Army National Guard. After review of the record, the Board finds that degenerative disc disease of the cervical and lumbar segments of the spine were not evident during active service or until many years thereafter and are not shown to have been caused by any in-service event, including any disease or injury sustained during ACDUTRA or INACDUTRA. In this regard, it is noted that the Veteran has not contended, nor does the evidence demonstrate, that he had complaints or manifestations of disability of either the cervical or lumbar spine while he was on active duty. Post-service medical records demonstrated sclerosis of L5-S1 in 1996. MRI studies conducted in January 2006 demonstrated degenerative disc disease of the cervical and lumbar spine during service. This is many years after the Veteran's discharge from his period of active duty and no relationship is noted between the cervical and lumbar disc disease demonstrated years after service and his period of active duty. As noted, the Veteran's main contention is that the degenerative disc disease of the cervical and lumbar spine resulted from stress of training during his periods of ACDUTRA and INACDUTRA. In support of this contention, the Veteran has submitted a statement from his private nurse practitioner (NP). She reviewed the Veteran's history of significant problems with his back and neck. With a June 2000 medical examination showing no history of neck or back problems and a current diagnoses of C6-7 herniation and degenerative disc disease of L4-5. An August 2001 record of treatment for low back pain, a March 2005 service restriction from jogging, and a January 2006 MRI study showing herniated disc and degenerative changes. During this time, the Veteran held a civilian job that was fairly sedentary, but during active duty he was required to wear heavy gear and jump off of various military vehicles. He reported that the pain increased after active duty. His cervical pain did not begin until January 2006 when an MRI study showed a bulging disc and multi-level degenerative disease. He stated that his pain was always worse after wearing his Kevlar helmet while on ACDUTRA. The examiner stated that for most of the Veteran's civilian career he was engaged in fairly sedentary work and had little or no back or neck problems until 2001. The NP concluded that there was no reason to think that the Veteran's medical problems would have gotten significantly worse except for the deleterious physical effects of military training. An examination was conducted by VA in February 2009 for the purpose of determining if the Veteran's cervical and lumbar spine disabilities were the result of service, including ACDUTRA and INACDUTRA. After examination of the Veteran and review of the Veteran's medical records, the diagnoses were C5-6 herniation and degenerative disc disease of the lower back at L4-5. The examiner rendered an opinion that it was less likely as not that neither the cervical spine herniation nor the degenerative disc disease of the lumbar spine underwent an increase in severity beyond the normal progression of the disease while he was on active duty. The rationale was that the Veteran had not sustained a specific injury of either spinal segment while in active service or training and that, although he may have been somewhat more sore after the rigors of a "drill weekend," it could not be stated that service or training caused any progression in the spinal disease beyond what is the normal progression of the condition. It was noted that the progression of the disease was due to age, genetics, non-service-connected work and activities of daily living. In addition, it was noted that towards the end of the Veteran's long career in the Reserves, he had been placed on multiple profiles that restricted his physical activity so that the impact of training would have been none to minimal and it appeared that the conditions would have worsened anyway. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. While the Board may not ignore a medical opinion, it is certainly free to discount the relevance of a physician's statement, as it has done in this case. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). In this case, the Board finds that the medical opinion of the VA physician is of more probative value than that of the NP. In this regard, it is noted that the statement of the NP, to the effect that the physical effects of military training were the only source of the Veteran's spinal disease, was a bare statement only and were not accompanied by a detailed rationale. The VA examiner provided compete reasoning that the degenerative disease of the cervical and lumbar spine was the result of age, genetics, non-service-connected work and activities of daily living. The reasoning that the multiple profiles restricting the Veteran's physical activities while he was on ACDUTRA and INACDUTRA are found to be compelling by the Board. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claims for service connection for degenerative disc disease of the cervical and lumbar spinal segments, and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for degenerative disc disease of the cervical spine is denied. Service connection for degenerative disc disease of the lumbar spine is denied. REMAND The Veteran contends that hypertension is the result of his periods of ACDUTRA and INACDUTRA. In support of his contention, his private NP has submitted a statement that noted that for some time, the Veteran's blood pressure readings were only found to be elevated during periods of ACDUTRA or INACDUTRA, with normal readings at other times. It was further noted that the elevations did not respond to conventional treatments and were possibly the result of the stress of carrying two jobs, intermittent periods of interrupted schedules as a result of being on ACDUTRA and the high sodium content of meals while on ACDUTRA. This represents a nexus opinion in support of the Veteran's claim of service connection for hypertension. After considering this statement, as well as the Veteran's testimony at the Board hearing in March 2011, the Board finds that a medical examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (Setting forth the criteria under which VA is required to obtain an examination.) Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should arrange for the Veteran to undergo a medical examination to ascertain the current nature and etiology of his hypertension. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability 50 percent or more) that the hypertension is related to service, including periods of ACDUTRA and INACDUTRA. The claims folder should be made available for review in connection with this examination. The examiner should provide complete rationale for all conclusions reached. 2. Thereafter, the RO/AMC should readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2013). 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