Citation Nr: 1341676	
Decision Date: 12/17/13    Archive Date: 12/31/13

DOCKET NO.  10-01 410	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for a cervical spine disability.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and H.A., his daughter.


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran served on active duty from July 1980 to November 1983.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, and has been subsequently transferred to the RO in Chicago, Illinois.

A hearing before the undersigned Veterans Law Judge was held at the RO in April 2012.  A transcript of the hearing has been associated with the claims file.

In addition, this matter was previously remanded by the Board for further development in September 2012 and April 2013.  Such has been completed and this matter is returned to the Board for further consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claim currently on appeal.


FINDING OF FACT

The Veteran did not manifest a cervical spine disability in service or to a compensable degree within one year after discharge from service, and it is not otherwise shown to be associated with service, to include secondary to a service-connected disability.


CONCLUSION OF LAW

The criteria for establishing service connection for a cervical spine disability have not been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the appellant's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 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 (2013).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 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).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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 seek to provide; and (3) that the claimant is expected to provide.

The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

In April 2006, March 2009, and September 2012, the agency of original jurisdiction (AOJ) provided the notices required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013).  Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claim for service connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  The April 2006 letter provided the Veteran with the notice pursuant to Dingess prior to the initial adjudication of this claim.

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2013) (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify. 

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  VA treatment records have also been associated with the Veteran's electronic paperless file (Virtual VA).  The record indicates the VA has attempted to obtain, to the extent possible, all outstanding private medical records identified by the Veteran.  The Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  The record indicates that the Veteran was afforded VA examinations in November 2012 and September 2013 pursuant to the Board's remands.  This opinion involved review of the claims file and thorough examination of the Veteran and the opinion was supported by sufficient rationale.  Therefore, the Board finds that the September 2013 examination is adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim decided herein.

Additionally, the Board finds there has been substantial compliance with its April 2013 remand directives as to the claim decided herein.  The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.)  Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand.  See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders).  Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2013).

Furthermore, in April 2012 the Veteran testified at a Board hearing at the RO over which a Veterans Law Judge (VLJ) presided.  The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  During the Board hearing, the VLJ clarified the issues on appeal and inquired as to the etiology and continuity of the Veteran's asserted symptoms.  The Veteran was offered an opportunity to ask the undersigned questions regarding his claim.  The Board, therefore, concludes that it has fulfilled its duty under Bryant.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  The Veteran has submitted arguments and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected.




II. Merits of the Claim

The Veteran contends that he has a cervical spine disability that is a result of a January 1983 in-service motor vehicle accident, or in the alternative, is secondary to a service-connected disability.

Governing Rules and Regulations

Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service.  38 C.F.R. § 3.303(d).

Generally, the evidence 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.  38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111  (2002); Caluza v. Brown, 7 Vet. App. 498, 505  (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)).

Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period.  In addition, certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 

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.  If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection 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) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases).  Here, degenerative joint disease of the cervical spine is a chronic disease under 38 C.F.R. § 3.309(a) and are subject to the provisions governing service connection based upon continuity of symptomatology.

Secondary service connection may be granted 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).  With regard to the matter of establishing service connection for a disability on a secondary basis, the Court has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such claimant shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Id.; see also 38 C.F.R. § 3.310(b).  

The Veteran is currently service-connected for degenerative joint disease of the lumbar spine associated with a fractured left femur at a 20 percent disability rating, effective October 2, 2003; fractured left femur at a 20 percent disability rating , effective October 2, 2003; fractured right tibia and fibula at a 10 percent disability rating, effective October 2, 2003; depression associated with degenerative joint disease of the lumbar spine at a 70 percent disability rating, effective April 6, 2009; scars residuals skeletal traction, incision sites, of the right lower extremity at a 10 percent disability rating, effective July 14, 1986; right lower extremity sciatica associated with degenerative joint disease of the lumbar spine, at a 10 percent disability rating ,effective March 31, 2006; left lower extremity radicular pain associated with degenerative joint disease of the lumbar spine, at a 10 percent disability rating ,effective July 6, 2007; and scars residuals skeletal traction of the left lower extremity at a non compensable rating, effective July 14, 1986.

When determining service connection, all theories of entitlement, direct and secondary, must be considered.  Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).  As such the Board will address the Veteran's claim for service connection on both direct and secondary bases.

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence.  See 38 U.S.C.A. § 1154(a) (West 2002).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to 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.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the 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 and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

The Board must assess the credibility and weight of all 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 appellant.  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Factual Background and Analysis

Service treatment records show that the Veteran was involved in an in-service motor vehicle accident; however, there are no complaints, symptoms, findings, or diagnosis related to the neck or cervical spine.  His separation examination report and self report of medical history are also negative for any complaints, symptoms, findings, or diagnosis related to the neck or cervical spine. 

An April 2003 private medical record notes that the Veteran complained of neck pain and that lifting results in shooting pain from the low back to the neck. 

A March 2005 VA physical therapy record reflects that the Veteran complained of chronic neck pain for more than 23 years.

In a May 2006 statement, the Veteran indicated that he had neck pain, and that he believed it was related to his leg being shorter. 

A July 2006 VA spine examination report reflects that the Veteran complained of neck pain of approximately 9 years duration with no precipitating event at that time.  The examiner diagnosed cervical spondylosis and opined that a leg length discrepancy or a lumbar spine condition will not cause cervical spondylosis.  An opinion regarding the direct theory of service connection was not provided.

An August 2006 "report of contact" (VA form 119) indicated that the prior examiner reported that the Veteran's cervical spine disability was less likely as not related to the Veteran's lumbar spine condition. 

April 2007 and September 2007 VA medical records reflect that the Veteran complained of neck pain which was radiating down to the left arm. 

The Veteran testified at the April 2012 Board hearing that his pain from his service-connected lumbar spine travelled up to his neck.  The Veteran described it as a dull pain, like a large fist pushing into the area, and sharper pain.  The Veteran stated the pain was constant and he had difficulty moving his neck from side to side.  He further stated that he had extreme difficulty performing the range of motion testing at the July 2006 VA examination.  He stated that the examiner pushed him down until he was able to touch his toes.  This caused extreme pain and was not an accurately depiction of his disability.  The Veteran's daughter, H.A., testified that the Veteran has trouble getting up out of chairs due to his pain. 

In November 2012, the Veteran underwent medical examination of his cervical spine during a VA examination and was diagnosed with degenerative joint disease of the cervical spine.  The VA examiner opined that the Veteran's cervical spine disability was less likely than not (less than 50 percent or greater probability) incurred in or caused by the claimed in-service injury.  The rationale was that there was no evidence of an in-service neck injury or treatment in service related to neck complaints.  In addition, his neck complaints commenced years after discharge. The VA examiner further opined that the claimed condition was less likely than not (less than 50 percent probability) due to or the result of the Veteran's service-connected condition.  He explained that there was no credible medical clinical studies that cervical degenerative joint disease could be caused by lumbar degenerative joint nor related to an abnormal gait secondary to residuals of a leg fracture. 

In April 2013, the Board determined that the opinions of record remained inadequate for the purpose of determining whether any diagnosed cervical spine disability is related to service and a supplemental opinion was requested.

In September 2013, the examiner who conducted the November 2012 VA examination opined that upon review of the Veteran's claims file, the Veteran's cervical spine disability was "less likely than not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness."  The examiner stated the Veteran's service treatment records did not "show any hint of cervical complaints[.]  [F]urther there is no objective evidence of neck complaints or abnormal neck findings within a year of discharge."  The VA examiner also opined that the Veteran's neck disability was less likely than not proximately due to or a result of the Veteran's service-connected condition as "[t]here is no credible medical evidence extant that lumbar [degenerative joint disease] is a proximately cause of cervical [degenerative joint disease].  Further his service [degenerative joint disease] has not been aggravated beyond normal progression by his [service-connected] lumbar degenerative joint disease.  Current [c]ervical [x-ray] is similar to the 2011 cervical [x-ray]."

After consideration of the entire record and the relevant law, the Board finds that the Veteran's cervical spine disability is not related to service, or secondary to a service-connected disability, and service connection is not established.  The medical evidence of record as a whole supports the proposition that there is no etiological relationship between the origin and/or severity of the cervical spine disability and his military service.  

Here, the examiner's determination is consistent with the evidence of record.  The in-service treatment records revealed no complaint, treatment, or diagnosis of a neck disorder.  In addition, none of the post-service treatment records offer an opinion that the Veteran's degenerative joint disease of the cervical spine is related to his military service or secondary to a service-connected disability.  The Board, therefore, finds that the September 2013 VA examiner provided a negative nexus with regard to the Veteran's claim for service connection based on a secondary bases. 

In addition, the only evidence of record in support of the Veteran's claim consists of his own lay statements. The Board finds that the Veteran is not competent to relate his cervical spine disability to his service-connected disability, namely degenerative joint disease of the lumbar spine associated with a fractured left femur.  Although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case.  Here, despite the Veteran's contentions, given the complexity of the particular question of etiology and the fact that a nexus opinion may not be rendered based on personal observation, the Board finds that the Veteran is not competent to opine on the etiology of his cervical spine disability.  As such, the Board finds that the Veteran is not entitled to service connection a cervical spine disability, secondary to a service-connected disability.

In addition, direct service connection must also be denied.  There is no evidence of an in-service diagnosis of a cervical spine disability and no medical nexus relationship between the currently diagnosed degenerative joint disease of the cervical spine and his active duty service has been shown.  As such, service connection for a cervical spine disability is not warranted on a direct basis.

Although the Veteran has stated his symptoms started during service there is no evidence that his cervical spine disability was disabling to a compensable degree within one year of separation from active duty.

Unfortunately, although the Veteran has established that he has been diagnosed with degenerative joint disease of the cervical spine, the evidence of record does not establish that this condition is the result of a disease or injury in active duty service. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a cervical spine disability.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit sought on appeal is accordingly denied.


ORDER

Entitlement to service connection for a cervical spine disability is denied. 




____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs