Citation Nr: 1340457 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 03-34 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for cervical and lumbar spine disorders, also claimed as secondary to service-connected residuals of a left femur fracture. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Mother ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from January 17, 1984 to February 29, 1984. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran had a hearing before the Board in May 2008 and the transcript is of record. The Board originally denied this claim in a July 2008 decision. Thereafter, the Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC or "the Court"). In a December 2009 decision, the Court vacated the Board's July 2008 prior denial and remanded the issue for further development. In December 2011 and March 2013, the Board remanded the claim for further development. FINDINGS OF FACT 1. Pre-existing cervical and lumbar spine conditions underwent temporary flare-up of symptoms during active duty without a permanent worsening of the underlying pre-existing cervical and lumbar conditions. 2. Current cervical and lumbar spine disabilities are not the result of a temporary flare-up of symptoms during active duty of pre-existing cervical and lumbar spine conditions. 3. Cervical and lumbar spine disorders are not caused or aggravated by the service-connected residuals of a left femur facture. CONCLUSION OF LAW The criteria for service connection for cervical and lumbar spine disorders have not been met. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the VCAA duty to notify was satisfied by letters sent to the Veteran in October 2006 and March 2013. The letters addressed all four notice elements and the disability rating and effective date provisions. Although these letters were not sent prior to the initial adjudication of the Veteran's claims in February 2003, this was not prejudicial to her since her claims were subsequently readjudicated in August 2013. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The duty to assist was also met in this case. The service treatment records and service personnel records are in the claims file. All pertinent VA and private treatment records have been obtained as well as records from the Social Security Administration (SSA). In addition, VA examinations with respect to the issue on appeal have been obtained during the course of the appeal. 38 C.F.R. § 3.159(c)(4). The Board's March 2013 remand instructions have been substantially complied with as the requested VA examination was obtained in July 2013. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of her claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. LAW AND ANALYSIS Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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. § 1131. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. This presumption of sound condition attaches only where there has been an induction examination in which a disease or injury was not noted but which manifested or was incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012) ("Once the presumption of soundness is applied, if the Secretary is unable to rebut the presumption, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established."); see also Holton v. Shinseki, 557 F.3rd 1362, 1366 (Fed.Cir. 2009) (noting that to establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service). Where a pre-existing disease or injury is noted on the entrance examination, section 1153 provides that "[a] pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a pre-existing condition, alone, do not constitute sufficient evidence for a non-combat Veteran to show increased disability for the purposes of determinations of service connection based on aggravation unless the underlying condition worsened. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that her current low back and neck disorders, which include arthritis, are the result of carrying heavy gear during basic training. The Veteran also asserts that her low back and neck disorders are attributable to her service-connected left leg disability. Specifically, she states that the left leg disability has produced years of altered gait, balance and stance, which could be responsible for her current low back and neck diagnoses. The facts of this case are complex. Before entering military service, it is well documented that the Veteran was in a serious motor vehicle accident (MVA) in May 1979. The Veteran fractured her left femur and was hospitalized for four months. She further claims that she injured her back and neck and the time, but medical records, although noting abrasions to the upper back, do not indicate any orthopedic diagnoses pertaining to the back. Rather, 1979 hospitalization records indicate the Veteran presented with abrasions to the face, upper back, chest and left thigh, but aside from the left femur fracture, there was no objective evidence of any other significant injury. The Veteran's service treatment records are also silent as to any complaints, treatment or diagnoses of a back or neck condition. The Veteran's November 1983 entrance examination notes the fractured left femur in 1979 with four-month hospitalization. The entrance examination also notes a "trauma scar" on the upper back. However, no back or neck orthopedic diagnosis is indicated on entrance. After service, the Veteran had at least on one occasion indicated she was in another MVA in 1986, but no records associated with treatment for injuries from the 1986 MVA are of record. In fact, in March 1987, a private physician who examined her with regard to complaints of neck pain found no objective evidence of a back condition on examination. He also noted that the Veteran was a poor historian. X-rays of the cervical spine at that time were within normal limits, and there was no documentation confirming a 1986 MVA. Other private medical records do indicate the Veteran was attacked by a home intruder in September 1987, but her injuries were related to a left hand laceration. The Veteran sought chiropractic treatment for complaints of back pain in the late 1980s and 1990s, but no physician actually diagnosed a chronic back condition until years after her military service. In fact, a private physician noted in November 1986 that despite the Veteran's "impressive" multiple complaints of back pain, there was no objective evidence of disease. At that time, the Veteran was referred to a psychologist. The medical evidence also reflects that the Veteran has significant psychiatric disabilities. She is receiving Social Security Administration (SSA) disability benefits with a primary diagnosis of schizophrenia. Doctors have doubted the veracity of the Veteran's statements in light of her psychiatric diagnosis. The Veteran was afforded a VA examination in November 2012 which revealed current diagnoses of degenerative disc disease and osteoarthritis of the cervical and thoracolumbar spine. The examiner noted that, even at 30 years after the Veteran's brief military service, the objective evidence shows mild tenderness and near full range of motion of the low back and neck. In light of the mild objective findings, the examiner concluded it is unlikely her diagnoses are directly related to service. On the other hand, the examiner opined it is "more likely than not" that the Veteran's arthritis of the lumbar and cervical spine are related to the pre-service 1979 MVA as well as the natural progression of aging. However, the Board noted that a pre-service injury is even more remote in time than the Veteran's military service and for that reason, found the opinion somewhat unclear. The Board remanded the claim in March 2013 for further clarification from the same VA examiner who conducted November 2012 VA examination. Further opinion was obtained in July 2013. The examiner stated that the evidence of record clearly and unmistakably shows no documentation of a neck or lumbar spine condition prior to her entry onto active duty, as stemming from the May 1979 MVA. However, this accident was significant in that the driver died, and the Veteran was found between the back tire and fender. The examiner opined that it is at least as likely as not that she suffered some amount of neck and low back trauma which was not apparent on her entrance exam. However, the Veteran's service treatment records are silent regarding injury, diagnosis, or treatment of any neck or back condition. Therefore, the examiner concluded that it was less likely than not that the Veteran's cervical and lumbar spine disorders had been aggravated, had their onset in service or are otherwise attributable to her military service (e.g., due to carrying heavy equipment during basic training). The examiner also noted that in 1986, a private physician noted negative cervical spine x-rays with no objective evidence of disease. The examiner stated that medical literature indicates that there is usually evidence of traumatic arthritis within six months after injury. In its December 2011 and March 2013 remands, the Board determined that the presumption of soundness attached to the Veteran's entry into active duty since there was no medical evidence of a back or neck orthopedic diagnosis at the time of the Veteran's November 1983 entrance examination. However, during the course of the appeal, the Court of Appeals for Veterans Claims (Court) decided the case of Gilbert v. Shinseki, 26 Vet. App. 48 (2012), in which it determined that application of the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. As noted above, in its prior remands, the Board only considered whether any back or neck orthopedic diagnosis was noted at entrance in determining whether the presumption of soundness applied. On reconsideration under the holding in Gilbert, to include whether there were any manifestations of back and/or neck complaints during service, the Board now concludes that the presumption of soundness does not apply. This determination is based upon a review of the service treatment records, which are devoid of reference to complaint of, or treatment for, any back and/or neck orthopedic complaints. It is also based on review of the Veteran's later statements of having experienced back and neck pain during service which the Board concludes do not constitute a manifestation of a back or neck disorder during active service for the purposes of application of the presumption of soundness. Moreover, the July 2013 VA examination report reflects the examiner's opinion that the Veteran had suffered some amount of neck and low back trauma during the May 1979 MVA, prior to her entry into active service. Thus, the Board finds that the Veteran's cervical and lumbar spine disorders pre-existed her military service and as a result, the remaining questions are whether the pre-existing cervical and lumbar spine conditions were aggravated during active service and if so, whether her current cervical and lumbar spine disabilities are the result of that aggravation. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. § 3.306. As noted above, service treatment records are devoid of reference to, complaint of, or treatment for, any cervical or lumbar spine orthopedic problems, which negates a finding that pre-existing cervical and lumbar spine disorders, diagnosed most recently as degenerative disc disease and osteoarthritis of the cervical and thoracolumbar spine, increased in severity during service. The next question is whether the Veteran's reports of cervical and lumbar spine pain during service were merely temporary or intermittent flare-ups of symptoms of the preexisting condition or whether they represented a worsening of the underlying condition. As noted above, temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat Veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Of significance, is the VA examiner's finding that after 30 years of brief military service, the current objective evidence showed only mild tenderness and near full range of motion of the Veteran's low back and neck. The examiner also noted that as of 1986, the Veteran had normal spine x-rays and that medical literature indicates that there is usually evidence of traumatic arthritis within six months of after injury. Thus, the persuasive medical evidence reflects that the Veteran's pre-existing cervical and lumbar spine conditions underwent a flare-up of symptoms during active duty but that there was no increase in the severity of the underlying condition. Davis, 276 F. 3d at 1346-47; Hunt, 1 Vet. App. at 297. Because there was no increase in the severity of the underlying condition, the presumption of aggravation does not attach in this case. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Accordingly, the Board need not rebut the presumption with clear and unmistakable evidence that the pre-existing knee condition was not aggravated during active service, but rather the Board must review whether the pre-existing cervical and lumbar spine conditions were aggravated in service under the preponderance of the evidence standard. Thus, the question is whether there is an approximate balance of positive and negative evidence regarding whether the knee condition was aggravated; if so, the benefit of the doubt shall be given to the Veteran. 38 U.S.C.A. § 5107(b). See Gilbert, 1 Vet. App. at 54. Concerning the question of aggravation, the July 2013 VA examiner concluded it is less likely that the Veteran's cervical and lumbar spine disorders had been aggravated in service as the service treatment records are silent regarding injury, diagnosis or treatment for any neck or back condition. The service treatment records do not show an obvious increase in any previous cervical and/or lumbar spine condition. Thus, the Board finds that the totality of the evidence does not support a finding that pre-existing cervical and lumbar spine conditions arising from the 1979 MVA were aggravated during the Veteran's military service. The Board acknowledges that the Veteran believes her cervical and lumbar spine disorders are related to service. The Veteran has not shown that she is competent to render such a determination, however, as there is no evidence she is qualified through education, training, or experience to offer a medical opinion on a matter of complexity that requires specialized knowledge. See 38 C.F.R. § 3.159(a). In summary, the Board concludes that cervical and lumbar spine disorders pre-existed service and were not incurred in or aggravated by service. As noted above, the Veteran also asserts that her cervical and lumbar spine disorders are attributable to her service-connected residuals of a left femur fracture. In July 2013, a VA examiner rendered an opinion with respect to the claim on a secondary basis. The examiner concluded that the Veteran's low back and/or neck disorders were less likely as not caused or aggravated by the Veteran's service-connected left leg disability. The examiner explained that at the time of the November 2012 VA examination, the Veteran had no tenderness to her femur with normal painless range of motion to her hips bilaterally. She also had normal painless range of motion to her neck and thoracolumbar spine in spite of x-ray evidence of degenerative disc disease and degenerative joint disease and subjective tenderness to the mid spine region. No gait disturbance was noted. The examiner concluded that it is commonly believed that a lower extremity injury can be responsible for a back condition. However, a review of the medical literature failed to confirm this theory. As the July 2013 VA examiner provided the only competent medical opinion of record regarding the issue, the Board finds that the preponderance of the evidence is against the claim that the Veteran's service-connected left femur fracture caused or aggravated her cervical and lumbar spine disabilities. The examiner concluded that there is no relationship between the lower extremity injury and a back condition. Consequently, the preponderance of the evidence weighs against the Veteran's claim, and the Board finds that service connection for cervical and lumbar spine disorders secondary to a residuals of a left femur fracture is also not warranted. 38 C.F.R. § 3.310 (2013). The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Accordingly, the appeal is denied. ORDER Service connection for cervical and lumbar spine disorders, also claimed as secondary to service-connected residuals of a left femur fracture, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs