Citation Nr: 1340864 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 08-03 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected lumbar spine disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran was afforded a Travel Board hearing in April 2012, and a transcript of this hearing has been associated with the claims folder. This matter was previously before the Board in November 2012, when the Board remanded the matter for additional development. The Board finds that there has been substantial compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). In addition to the issue listed above, in November 2012, the Board also remanded the issues of service connection for radiculopathy of the right lower extremity and a total disability rating based on individual unemployability (TDIU). While on remand, a May 2013 rating decision of the VA Appeals Management Center granted service connection for radiculopathy of the right lower extremity and a TDIU. The Board notes that when an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must then be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection. In other words, the grant during the pendency of an appeal has extinguished these issues before the Board; service connection for radiculopathy of the right lower extremity and a TDIU are no longer in appellate status before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDING OF FACT A cervical spine disability was not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that a current cervical spine disability is related either to active service or to the Veteran's service-connected lumbar spine. CONCLUSION OF LAW A cervical spine disability was not incurred in or aggravated by active service, it is not the result of or aggravated by a service-connected disability, and a relationship between a lumbar spine disability and active service may not be presumed. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. 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 the evidence is assembled, the Board 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 preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Correspondence dated January 2006 notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The Veteran was later provided with notice regarding the degree of disability and effective date, and the Veteran has been provided with several readjudications of his claim since that notification. The Board finds that there has been no prejudice to the Veteran requiring additional notice. The Board finds that the duty to notify has been satisfied, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). The Veteran's service medical records, VA medical treatment records, private treatment records, and records from the Social Security Administration have been obtained, to the extent available. There is no indication that there is any other relevant evidence that is available and not part of the claims file. The Veteran was provided with a VA examination of his cervical spine in April 2013. The examiner reviewed the Veteran's claim file, past medical history, recorded the Veteran's current complaints and history, conducted an appropriate evaluation, and provided a diagnosis and opinion consistent with the remainder of the evidence of record. The VA examination report is therefore adequate for the purpose of making a decision on appeal. 38 C.F.R. § 4.2 (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection The Veteran claims that he suffers from a cervical spine disability either directly as a result of an in-service injury or secondary to his service-connected lumbar spine disability. The Board will analyze the claims together because they involve a similar application of law to fact. In general, service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2013); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." For certain chronic diseases, set forth in 38 C.F.R. § 3.309(a), a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is among the chronic diseases listed in 38 C.F.R. § 3.309(a), and service connection for arthritis may be established based on a continuity of symptomatology. Furthermore, service incurrence will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). To the extent that the Veteran's cervical spine disability represents a degenerative or arthritic process, the Board will consider entitlement to service connection both via a continuity of symptomatology and on a presumptive basis. Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013); Harder v. Brown, 5 Vet. App. 183 (1993). Additional disability resulting from the aggravation of a non-service-connected disability by a service-connected disability is also service connected. 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). To establish service connection for a claimed disability on a secondary basis, there must be medical evidence of a current disability, a service-connected disability, and medical evidence of a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The Veteran has been diagnosed with degenerative disc disease of the cervical spine, most recently at the time of his April 2013 VA examination. Thus, a current disability is shown. With respect to an in-service event, disease, or injury, the Veteran claims that his neck injury is related to his in-service swinging and loading of flight bags into aircraft. A November 1974 service treatment record, among other records, indicates that the Veteran injured his back while lifting in April 1974. Accordingly, the Board finds that an in-service injury is shown. With regard to medical evidence of nexus, in April 2002, the Veteran sought treatment from a private clinician for occipital headache and blurred vision. The Veteran complained that he had experienced such symptoms for the preceding 8-12 months. The Veteran received a VA examination in May 2007. While no etiological opinion was offered in the examination report, the examiner noted that the Veteran complained of chronic neck pain with an onset in 2000. The Veteran received a VA examination in February 2010. While no etiological opinion was offered in the examination report, the examiner noted that the Veteran complained of chronic neck pain with an onset in 2001. The Veteran received a VA examination in April 2013. The examiner opined that the Veteran's cervical spine disability was less likely than not related to, caused by, or aggravated by either his active duty service or his service-connected lumbar spine disability. As a rationale for this opinion, the examiner noted that based on both the Veteran's service treatment records and his own account, there was no medical evidence of an in-service cervical spine condition. The examiner noted that the onset of the Veteran's cervical spine condition was in the early 2000s. Furthermore, the examiner noted that the lumbar spine and the cervical spine are separated by the thoracic spine, which is the longest part of the spine. The examiner noted that the thoracic spine had 12 vertebral bodies and discs between them, which dissipate any potential transmission. Furthermore, the examiner noted that various surgery reports showed that the gross alignment of the lumbar spine would not affect the proximal spine. The examiner opined that the most likely cause of the Veteran's cervical spine disability were his age and the physical nature of his post-service professional occupation. To the extent that the Veteran believes that his cervical spine disability is related either to his service or to his service-connected lumbar spine disability, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with an examination based in part on the competency of those observations. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of a cervical spine disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's cervical spine disability is related either to his military service or to his service-connected lumbar spine disability, the Board ultimately affords the objective medical evidence of record, which weighs against finding a connection between the Veteran's cervical spine disability and his service or his lumbar spine disability, with greater probative weight than the lay opinions. The Board has also considered whether the Veteran has presented a continuity of symptomatology associated with his cervical spine disability, and it finds that he has not done so. There is no competent medical evidence suggesting that the Veteran was treated after service for a chronic cervical spine disability until 2002 at earliest, or approximately 26 years after separation from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). Furthermore, in April 2002, May 2007, and February 2010, the Veteran indicated that he first began experiencing symptoms associated with his cervical spine disability in the early 2000s. Thus, while the Board has considered the lay contentions that the Veteran experienced cervical spine problems soon after military service, the Board finds that the weight of the evidence, including the Veteran's own past contentions to medical care providers, does not support a finding of continuous symptoms since active duty. The Board further finds that Veteran's more recent assertions relating the cervical spine disability to service to be less credible because of contradictory prior statements of record indicating that his cervical spine pain began in the 2000s. Therefore, the Board concludes that the Veteran's allegations of continuity of symptomatology are not credible, and that the medical nexus element cannot be met via continuity of symptomatology. Furthermore, the Board finds that arthritis of the cervical spine was not shown within one year following separation from service. Consequently, presumptive service connection is also not warranted. In summary, the Board finds that the preponderance of the evidence is against the claim. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a cervical spine disability is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs