Citation Nr: 1338740 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-37 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for neck disability. 2. Entitlement to service connection for visual disability, including as secondary to service-connected disabilities. 3. Entitlement to service connection for neurological deficiencies of the left and right upper extremities, including as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to November 1981. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision by the Salt Lake City, Utah Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for neck and visual disabilities and neurological deficiencies of the left and right upper extremities. In January 2012, the Board remanded the claims at issue to the RO via the VA Appeals Management Center (AMC) for the development of additional evidence. The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDINGS OF FACT 1. Chronic neck strain treated during service continued after service. 2. Testing during service showed normal vision. 3. Right corneal injury with resulting scar occurred after service and is not related to or worsened by service-connected neck, back, or neurological disabilities. 4. Diabetes leading to diabetic retinopathy did not manifest until many years after service, and is not related to or worsened by service-connected neck, back, or neurological disabilities. 5. Neurological deficiencies in the left and right lower extremities did not become manifest during service or soon after service. 6. Right carpal tunnel syndrome arose long after service and is not related to or worsened by neck disability or other service-connected disability. CONCLUSIONS OF LAW 1. Neck disability was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. Current visual disability was not incurred or aggravated in service, and is not proximately due to or the result of, or aggravated by, service-connected disabilities. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310 (2013). 3. Neurological deficiencies of the left and right upper extremities were not incurred or aggravated in service, may not be presumed to have been incurred in service, and are not proximately due to or the result of, or aggravated by, service-connected disabilities. 38 U.S.C.A. §§ 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neck Disability The Veteran has a service-connected back disability, which the RO described initially as back muscle strain, and later as recurrent lumbosacral strain with thoracic paravertebral muscle spasm. He contends that, in addition to that back disability, he has a neck disability manifested by neck pain and headaches. He contends that the disability is attributable to injury in service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection for certain specifically listed chronic diseases, including arthritis, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The United States Court of Appeals for Veterans Claims (Court) has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative means of establishing service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nonetheless, service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. During service, the Veteran sought treatment in April 1981 for excessive headaches. A clinician found that the headaches were probably tension headaches. In August 1981 the Veteran sought treatment for chronic neck pain. He was seen on several occasions, and he reported that the neck pain had been present for three months. A clinician provided an impression of chronic cervical strain. The Veteran underwent physical therapy. On the report of the Veteran's October 1981 service separation examination, the examiner checked normal for all areas, including the neck. On VA medical examination in December 1981, the Veteran reported that he was in a truck accident during service. He indicated that he sustained neck injury in the accident and then began to have headaches. The examiner found no limitation of motion of the Veteran's neck, and no atrophy of neck muscles. The Veteran's cervical spine appeared normal on x-rays. The examiner provided a diagnosis of cervical strain associated with headache. On VA medical examination in May 1987, the Veteran reported that he did not recall having had a specific back injury during service. He recalled, however, that during service he had recurrent pain in his upper back and lower back. He stated that the upper and lower back pain during service was associated with strenuous activity and duties that included heavy lifting. He indicated that, at the time of the 1987 examination, he had constant back pain, including pain in the mid thoracic, right upper thoracic, and lower lumbar areas. The examiner found tenderness in the right superior rhomboid muscles and the right paravertebral muscles in the upper thoracic spine. The examiner's diagnoses included recurrent muscle spasm in the right thoracic paravertebral muscles and right rhomboid muscles. In September 2007, the Veteran wrote that since service he had experienced not only lower back problems but also upper back and neck problems. He stated that clinicians found ruptured discs in his upper back. He attributed his current upper back and neck problems to service duties jumping out of helicopters, while loaded with gear, as part of field exercises. On VA examination in September 2007, the Veteran reported having had upper and lower back pain since about 1979. The examiner provided findings regarding the Veteran's thoracolumbar spine, but did not provide findings regarding his cervical spine. Lumbar spine x-rays showed lumbar spondylitic disease. The examiner indicated that the then existing diagnosis of recurrent lumbosacral strain with thoracic paravertebral muscle spasm should be changed to lumbar spine intervertebral disc syndrome and chronic thoracic paravertebral muscle spasm. Records of VA treatment of the Veteran in 2007 and 2009 reflect his reports of musculoskeletal pain in the back and neck. He related his back and neck pain to events during service including a motor vehicle accident (MVA) and jumping out of helicopters. X-rays of the Veteran's spine taken at a private facility in April 2008 showed severe anterior head carriage and moderate degenerative joint disease at C3 through C6. In a November 2008 statement, the Veteran asserted that he was seen for chronic neck pain during service. He stated that he had neck pain over an extended period during service and continued to have neck pain through the present. The Veteran had physical therapy at a private facility in 2008 and 2009. The therapy addressed the thoracic and lumbar areas of his spine. Cervical spine x-rays taken at a VA facility in June 2009 showed degenerative disease at C4 to C6. The United States Social Security Administration (Social Security) found that the Veteran has been disabled since February 2010, due to degenerative disc disease of the cervical and lumbar areas of the spine, carpal tunnel syndrome, and diabetes. On VA examination in February 2012, the examining physician assistant reported having reviewed the Veteran's claims file. The Veteran reported that he sustained neck injury in an MVA in service in 1981. The examiner found that the Veteran had cervical spine degenerative disc disease. The examiner provided the opinion that it is less likely than not that the Veteran's current neck disorder is related to injury or other events in service. The examiner explained that there was a long interval between neck symptoms in service and post-service neck symptoms, and that disc disease is not caused by previous muscle strain. During the Veteran's last year of service, he reported having neck pain over a period of months. A clinician found cervical strain. An examiner found cervical strain on VA examination in December 1981, soon after the Veteran's separation from service. The evidence that the muscle strain found during service continued after service tends to support service connection for neck disability. On examination in 1987 the Veteran reported ongoing back pain, including upper back pain. The examiner did not relate evidence of tenderness specifically in the cervical area, but did note tenderness as high as the upper thoracic area. The VA clinician who examined the Veteran in 2012 opined that it was unlikely that the symptoms in service were related to post-service disability, but that examiner did not address the finding of strain after service in December 1981. The current neck disability includes not just muscle strain but spine and possibly disc degeneration. There has been no indication of post-service trauma that would constitute an intercurrent cause of the current disability. Considering the cervical strain before and after separation from service in 1981, the 1987 symptoms in or near the cervical area, and the later diagnosis of cervical disc disease, the evidence supporting continuity between strain in service and disability after service at least balances the gaps in evidence and the evidence against such a connection. Resolving reasonable doubt in the Veteran's favor, the Board grants service connection for neck disability. Visual Disability The Veteran contends that he has visual disability that was caused by his service-connected back disability. In addition to service connection being warranted for a disability resulting from disease or injury incurred in or aggravated by service, service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury, or for aggravation of a non-service-connected disease or injury by a service-connected disease or injury. 38 C.F.R. § 3.310. Refractive error of the eye is not considered a disease or injury for purposes of VA disability compensation. 38 C.F.R. § 3.303(c). The Veteran's service treatment records do not reflect any complaints or problems involving his vision or eyes. On service entrance and separation examinations his uncorrected vision was 20/20 bilaterally. The claims file does not contain any medical records addressing the condition of the Veteran's eyes in the years directly following his service. In September 2007, the Veteran asserted that his service-connected back disability caused problems with his eyes. In VA treatment in November 2007, the Veteran reported that he had been found to have an astigmatism, and that he wore glasses. He stated that fifteen years before the 2007 examination he was hit in the right eye with a fence staple. He indicated that one month before the 2007 examination he was diagnosed with type II diabetes mellitus, which was now treated with oral medication. A VA clinician found that the Veteran had bilateral hyperopia, astigmatism, presbyopia, pinguecula, cataracts, and a cornea scar on the right eye. In November 2008 the Veteran wrote that he had ongoing problems with his eyes. He asserted that VA medical records show that his eye problems existed during his service. On VA examination in February 2012, the examining ophthalmologist reported having reviewed the Veteran's claims file. The Veteran reported that during service he was in an MVA and sustained neck injury. He stated that soon after the MVA he began to feel neck pain and a sensation of pressure behind his eyes. The examiner indicated that the Veteran made vague references to having blurry vision with the headaches. The Veteran stated that a few years later he began to have trouble reading without glasses. He related that more recently he occasionally had a film over his eyes, and his vision seemed to fluctuate. He reported a post-service right eye injury in which a staple penetrated the cornea, leaving a corneal scar. The examiner found that the Veteran had hyperopia, presbyopia, mild non-proliferative diabetic retinopathy, nuclear sclerotic cataracts, and a corneal scar. The examiner stated that the Veteran had slight visual impairment of the right eye secondary to the corneal scar from the post-service injury. He indicated that the Veteran's hyperopia, presbyopia, and cataracts were not causing any visual disability. The examiner expressed the opinion that the Veteran's visual disability was not caused or aggravated by events during his service and was not caused or aggravated his service-connected disabilities. The examiner explained that the Veteran made vague references to blurry vision associated with headaches, such as in migraine headache phenomena, but that the Veteran's main complaints were consistent with presbyopia, which is a part of the natural course of aging and was not aggravated by the Veteran's neck injury or any possible neurological deficiencies. The examiner opined that the Veteran's cataracts and diabetic retinopathy also were not caused or aggravated by his neck injury or other possible neurological deficiencies. Service entrance and separations examinations show that the Veteran did not have visual disability during service, providing evidence against this claim. He reports needing glasses beginning at some time after service. Refractive error, which is not a basis for VA disability compensation, was shown on recent examinations. Conditions affecting the Veteran's eyes have been credibly and consistently attributed to a staple injury, which occurred after service, and diabetes, which became manifest long after service. The Veteran has not contended that the staple injury or the diabetes are service-connected. On the 2012 VA examination, the examining ophthalmologist concluded that the Veteran's diabetic retinopathy, cataracts, and corneal scar are not related to service or caused or aggravated by his service-connected disabilities, including neck and back disabilities. As a physician and an eye specialist the examiner is well qualified to address questions of the etiology of visual disability. The Veteran is competent to describe his perceptions, but he does not have medical training and his statements regarding the etiology of visual disability are not medical evidence. The greater weight of the persuasive evidence thus is against service connection for visual disability. Neurological Deficiencies of the Left and Right Upper Extremities The Veteran contends that he has numbness in his arms and shoulders as a result of service-connected disabilities. Service connection is established for disabilities of the neck, mid back, and low back, and for a scar on the left middle finger. Organic diseases of the nervous system are among the chronic diseases for which service connection may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309. The Veteran's service treatment records show treatment for neck, mid back, and low back pain, and for a May 1981 injury of the left middle finger. Notes from treatment in August 1981 for neck pain reflect that the pain did not radiate. Muscle strains identified included strain of the left upper trapezius. The treatment records do not reflect any other complaints involving the arms or hands. In a September 2007 claim, the Veteran asserted that back disability caused numbness in his arms and shoulders. In VA treatment in November 2007, the Veteran reported having numbness in his right arm. He stated that a private chiropractor had diagnosed degenerative disc disease in his cervical spine. He indicated that he had been diagnosed with diabetes. The treating clinician noted that the Veteran's nerves were intact, and that he had a fine resting tremor in his hands. Cervical spine x-rays taken in 2008 and 2009 showed degenerative disease. In VA treatment in June and July 2009, the Veteran reported tingling in his hands. In July 2009, electrodiagnostic studies showed right median mononeuropathy, or carpal tunnel syndrome in the right wrist, without active denervation. There was no evidence of a right ulnar mononeuropathy at the elbow, nor of a right lower cervical radiculopathy. On VA examination in February 2012, the examiner reported having reviewed the Veteran's claims file. On testing on examination, the muscles of the Veteran's elbows, wrists, and fingers had normal strength bilaterally. Reflexes and sensory function of the upper extremities were normal. There were no signs of cervical spine radiculopathy. The examiner expressed the opinion that it is less likely than not that neuropathy in the Veteran's upper extremities is secondary to his service-connected disorders. The examiner explained that the Veteran had right carpal tunnel syndrome that was caused by nerve compression at the wrist and was not caused or aggravated by the Veteran's back condition. Records from the time of the Veteran's service do not provide any contemporaneous evidence that his neck muscle strain was accompanied by any symptoms in the upper extremities. Clinicians have attributed right upper extremity neuropathy noted in recent years to carpal tunnel syndrome, and on testing have not found evidence of cervical spine radiculopathy. Again, as a above, while the Veteran is competent to report his symptoms, medical training is necessary to provide competent evidence on the causation or etiology of neurological symptoms or conditions to service many years ago. The Board finds persuasive the 2012 VA examiner's conclusion that the Veteran's upper extremity numbness, tingling, and carpal tunnel syndrome are not caused or aggravated by his service-connected cervical spine degeneration. The greater weight of the persuasive evidence is against service connection for left and right upper extremity neurological deficiencies. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The Court has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran VCAA notice in a November 2007 letter, issued before the February 2008 rating decision on the claims at issue. In that letter, the RO addressed the information and evidence necessary to substantiate claims for service connection. The RO informed the Veteran how VA assigns disability ratings and effective dates. The letter also addressed who was to provide the evidence. The Veteran's claims file (including information on paper and in electronic form) contains service treatment records, records of post-service treatment and examinations, statements from the Veteran, and the Veteran's Social Security records. The Veteran has had VA medical examinations that adequately address the claims that the Board is deciding at this time. Examinations were performed by qualified clinicians who reviewed the Veteran's claims file and provided findings and opinions relevant to those claims. In the January 2012 remand, the Board instructed that the AMC or RO: (1) obtain the Veteran's Social Security records, and (2) provide VA medical examinations, with file review and medical opinions, regarding the claims at issue. The Veteran's SSA records have been associated with his claims file. The Veteran had VA medical examinations in which the examiners reviewed his claims file and provided findings and opinions addressing specific questions as instructed in the Board's remand. The Board is satisfied that there has been substantial compliance with the remand directives. Therefore, no additional remand is needed, and the Board may proceed with review of those issues on their merits. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claims on their merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER Entitlement to service connection for neck disability is granted. Entitlement to service connection for visual disability is denied. Entitlement to service connection for neurological deficiencies of the left and right upper extremities is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs