Citation Nr: 1342946 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-20 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran had active service from July 1985 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Winston-Salem, North Carolina, that, in pertinent part, denied the above claims. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in the Virtual file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board remanded the case in November 2012 for additional development. FINDINGS OF FACT 1. The Appeals Management Center (AMC) in Washington, DC, completed the additional development directed in the November 2012 Board remand. 2. The Veteran's thoracolumbar spine was not in sound condition on entry into active service, as asymptomatic scoliosis was noted on examination. 3. The evidence of record shows no increase in the status of the scoliosis at the time of separation from active service. 4. A lumbar spine disorder, to include degenerative disc disease (DDD), did not have its clinical onset in active service, nor is it causally related to active service. 5. A cervical spine disorder, to include DDD, did not have its clinical onset in active service, nor is it causally related to active service. CONCLUSIONS OF LAW 1. The requirements for entitlement to service connection for a lumbar spine disorder, to include DDD have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 1137, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.305, 3.306, 3.307(a), 3.309(a (2013). 2. The requirements for entitlement to service connection for a cervical spine disorder, to include DDD are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.303, 3.307(a), 3.309(a ). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in April 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. The letter was time- and content-compliant. 38 C.F.R. § 3.159(b)(1); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, no further development is required with respect to the duty to notify. VCAA - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. In this regard, the RO sought to obtain the Veteran's service treatment records, VA outpatient records, and identified private records, and arranged an examination of the Veteran. Upon initial review, the Board determined that not all service treatment records may have been included in the claims file and remanded the case for additional inquiry as concerns the service treatment records. Documentation in the claims file reflects the AMC did obtain some additional records. More importantly, however, other documentation indicates the claims file is as complete as the Veteran desires it to be. In a statement that accompanied his May 2010 Substantive Appeal (VA Form 9), the Veteran stated, "I have a copy of all medical records FROM 1985-2008 . . . ." (Emphasis in original). Letters from the RO and the AMC asked the Veteran to provide copies of any medical records in his possession; and, he in fact provided excerpts from his service treatment records. Hence, the Board infers the claims file contains the relevant records the Veteran desires considered, and further development would serve no useful purpose. Further, neither the Veteran nor his representative currently asserts that there are additional records to be obtained. In his July 2009 Notice of Disagreement, the Veteran asserted that an August 2008 fee-basis examination was inadequate, as the examiner did not examine for tenderness or range of motion (ROM), etc. The Board notes the examination in question was an audiologic examination arranged to address the Veteran's claim of entitlement to service connection for hearing loss. Hence, it is not germane to the issues currently before the Board. Further, the Board remand included instructions for a current examination and medical nexus opinion, which the AMC in fact arranged, and was conducted in December 2012. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). As a result, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, the Board may address the merits of the appeal without prejudice to the Veteran. The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service Connection The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in 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. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is a showing of a resulting chronic condition listed in 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a) during service, or within the applicable presumptive period, then a showing of continuity of symptomatology after service may provide a basis for a finding of chronicity. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1131 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). 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). A veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows 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. If a pre- existing disorder is "noted" on entering service, the Veteran has the burden of showing an increase in disability during service. If the Veteran meets that burden and shows that an increase in disability occurred, the burden then shifts to the government to show that any increase was due to the natural progress of the disease. Wagner, 370 F.3d at 1096. There is no aggravation of a preexisting disease or injury if the condition underwent no increase in severity during service on the basis of the evidence of record pertinent to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Also, intermittent or temporary flare-ups during service of a preexisting injury or disease do not constitute aggravation; rather, the underlying condition, as contrasted with symptoms, must have worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997). Analysis A January 1985 enlistment report of medical examination shows that at the time of his entrance into service, the Veteran's spine was assessed as abnormal. Specifically, mild scoliosis at T12-L1, right, was noted. The examiner noted that it was asymptomatic. The Veteran was deemed qualified for active service with a Profile of 1B. Service treatment records dated in February 1990 note that the Veteran was transported to a medical facility via ambulance. He complained of having fallen 10 to 11 feet off of a maintenance platform. The entry notes that he landed on his abdomen, chest, and arms; and, there was no loss of consciousness. The Veteran walked out of the ambulance into the facility. Physical examination revealed the Veteran as alert; his pupils were equal, round, regular, and reactive to light and accommodation; neck was supple; and, his lungs were clear. The abdomen was soft, and bowel sounds were present. Examination of the upper extremities revealed right arm abrasions and normal ROM. There was left elbow swelling, and the Veteran could not extend it. The lower extremities were normal. A radial fracture of the left elbow was diagnosed. No indication of the low back was noted. In October 1991, the Veteran was placed on a profile for low back strain. In October 1993, the Veteran reported that he had been rear-ended in a motor vehicle accident (MVA) the day prior. He denied any neck pain, headache, nausea/vomiting, blurred vision, or numbness of the hands. On physical examination the neck was supple; there was no ecchymosis; and, ROM was full. Arm elevation was normal, as was sensation in the hands. ENT examination was normal. The examiner assessed a mild strain of the trapezius. The Veteran was prescribed Flexeril and Ibuprofen, and was instructed to take it easy. In March 2003, the Veteran reported to medical authorities with complaints of a stiff neck after involvement in a MVA three days earlier, where he was again rear-ended, and pushed into the vehicle in front of him. Although the entry notes "? LOC," in a lower column it indicates no loss of consciousness. It also indicates the Veteran denied he struck his head. Neurological examination was normal. Physical examination of the cervical spine revealed decreased ROM in all spheres secondary to spasm. There also was tenderness to palpation of the muscles about the sternum. The examiner diagnosed a cervical strain secondary to MVA. The Veteran's treatment included ROM exercises and medication, and he was instructed to follow up in six weeks, or as needed. There are no subsequent entries. On an October 2007 medical assessment of the Veteran's history for his retirement examination, he did not raise any back-related complaints. The examination revealed no positive findings related to the Veteran's cervical or lumbar spine. An entry dated in December 2007 notes a complaint of low back pain, with no further detail provided. The examiner took a full history, and the only musculoskeletal issue the Veteran reported was pain in his heel. The examiner noted no positive findings related to the neck or back. Laboratory tests were ordered and the Veteran was released without limitations. At a follow-up later that same day, the Veteran made no mention of neck or back pain. He told the examiner he wanted to follow up on left foot pain and a hemorrhoid. The examiner noted left flank pain, which the Veteran reported went away when he drank cranberry juice. The examiner noted no findings related to the neck or back. The only referral noted was to ENT. Post-service, upon VA general examination in June 2008, the Veteran reported no specific history related to the neck. Physical examination revealed a normal neck. Further concerning the spine, the Veteran had reportedly been told at one time that he had curvature of the spine. The examiner noted the Veteran reported no back pain, and the Veteran denied any treatment for a back or spine disorder. There was no weakness, and the Veteran denied incapacitating episodes of any type that interfered with either his activities of daily living or ability to work. Physical examination revealed a straight-appearing spine. There was no tenderness or muscle spasm; and, the examiner noted the back appeared perfectly normal. The examiner noted the Veteran moved around normally with no pain or rigidity. ROM on forward flexion was greater than 0 to 90 degrees; backwards extension to 30-34 degrees; lateral flexion was 0 to 30 degrees bilaterally; and, lateral rotation was 0 to greater than 45 degrees bilaterally. The examiner noted that all movements were performed without pain. Such findings showed motion was normal in all spheres. See 38 C.F.R. § 4.71, Plate V. The examiner diagnosed normal cervical, thoracic, and lumbosacral spine. In a statement submitted with his Form 9, the Veteran related that, after the 1993 MVA, he was treated by a private provider for six weeks. He related further that records were no longer available. The Veteran related that when he moved his head from left to right, there was a popping sound; and, at times, it built up pressure and he had to move his neck to relieve it. The Veteran suggests those symptoms were not documented in his medical records because he did not report them to military medical authorities. He stated: "If I kept or included the neck issue in my medical records I would have been separated from the AF." He did not recall reporting that at the June 2008 examination. As earlier noted, the Veteran submitted personal copies of his service treatment records. The Board remanded for another examination. The December 2012 examination report reflects that the examiner conducted a review of the claims file. The examiner noted the Veteran was diagnosed with DDD of the lumbar spine in 2012. The Veteran reported he sustained a low-back muscle pull while lifting something in active service. He was prescribed Flexeril, and no X-ray were taken. The Veteran reported prolonged standing and sitting bothered his lower back. He denied flare-ups, as he had pain daily. Physical examination revealed normal ROM in all spheres without any objective evidence of pain. Repetitive-use testing did not reveal any changes in ROM. There was no tenderness to palpation , guarding, or muscle spasm. Neurological examination was normal, no muscle atrophy was noted. Neither was there evidence of radiating pain. The examiner noted lumbar spine X-rays were interpreted as having shown arthritis but no vertebral fracture. Concerning the neck, the examiner noted that the Veteran was diagnosed with DDD of the cervical spine in 2012. The Veteran reportedly was told in 1985 at his enlistment examination that he had curvature of the spine, but he passed the physical and was allowed to enlist. He further had been told that he sustained a whiplash injury as a result of the 1993 MVA; and, he was treated by a private chiropractor for six weeks. As was the case with his low back, the Veteran experienced daily neck pain. Physical examination revealed forward flexion of 0 to 40 degrees without objective evidence of pain; backwards extension was to 45 degrees with evidence of pain at the end point; lateral flexion was 0 to 45 degrees bilaterally, both with pain at the end point; lateral rotation was 0 to 80 degrees bilaterally, both with pain at the end point. The examiner noted that repetitive-use testing revealed no additional loss of ROM. The examiner noted further that the functional impairment of the cervical spine was less movement than normal. There was no localized tenderness to palpation, guarding, or muscle spasm. Upper extremity motor strength was normal, as were deep tendon reflexes. The examiner noted there was no muscle atrophy or radiating pain. The examiner noted further that X-rays were interpreted as having shown arthritis but no vertebral fracture. Regarding the lumbar spine, the examiner opined that there was less than a 50-percent probability that the Veteran's currently diagnosed DDD had its onset in active service or is causally related to active service. The examiner opined that the entries in the service treatment records related to the Veteran's 1990 fall suggested, to include the physical profile for a back strain, that the strain was acute and self-limited. Further, the service treatment records noted that the Veteran fell on his abdomen, chest, and arms, and the examination did not reveal positive findings related to the back or neck. Concerning the December 2007 entry of low back pain in the service treatment records, the examiner noted that there was no clear-cut diagnosis, and urinalysis and CBC were normal. The examiner also opined that the degeneration shown on X-rays was more likely part of a generalized degeneration due to age. As a result, the examiner opined that it was not at least as likely as not that the Veteran's current DDD of the lumbar spine was causally related to the episodes noted in the service treatment records, as they were acute and self-limited. With respect to the scoliosis noted on the entrance examination, the examiner explained that the objective findings on clinical examination revealed no evidence of scoliosis, which is a developmental disorder. The examiner indicated further that it was noted as mild at the T12-L1 level. The examiner opined that the Physical profile associated with the Veteran's in-service acute low back strain had nothing to do with scoliosis. The examiner noted that neither his examination of the Veteran nor the X-rays revealed evidence of scoliosis. Regarding the neck, the examiner opined that, in light of the findings on physical examination after the MVA, and the diagnosis of mild strain of the trapezius, the neck strain was acute and self-limited. Corncerning the 1990 fall, the examiner's comments and assessment were the same as for the lumbar spine. There was no mention of the neck or back, and the neck was normal on examination. The examiner opined that the degenerative changes shown on X-ray are more likely a part of generalized degeneration due to age. As a result, the examiner opined the Veteran's currently diagnosed DDD of the cervical spine is not likely related to the acute in-service strain. The Board finds that opinions of the VA examiner to be highly probative, as they were based on a review of the record and were accompanied by a clear rationale. The Board does not reject the Veteran's lay evidence that he sustained the noted in-service injuries, for they are in fact documented. Nonetheless, the issue is whether he sustained any chronic residuals as a result. As the medical examiner who conducted the December 2012 examination opined, the evidence of record shows there was no diagnosis of a chronic neck or back disorder at the time that the Veteran separated from active service. Neither is there any evidence that cervical or lumbar spine arthritis manifested within one year of his separation from active service. The record does not indicate complaints of continuous symptoms- the Veteran explained that he was unable to report symptoms during service as he would have been separated from the Air Force- nevertheless, the Board must address the medical record and such record shows only the stated in-service complaints. As explained, in multiple service records following the documented accidents the Veteran denied back symptoms. As discussed earlier, the Veteran's examination at his retirement did not note scoliosis or diagnose any other spine abnormality. Further, the June 2008 and December 2012 VA examinations revealed no evidence of scoliosis. Hence, as the examiner noted in December 2012, in the absence of the current presence of scoliosis, there simply is no issue of in-service aggravation of a preexisting condition. Thus, there is no presumption of aggravation due to an increase in the severity of the preexisting disorder. See 38 C.F.R. § 3.306(a). In light of all of the above, the Board is constrained to find the preponderance of the evidence is against the claim on a presumptive, direct basis, to include due to aggravation of a preexisting condition. 38 C.F.R. §§ 3.303, 3.304, 3.305, 3.306, 3.307(a), 3.309(a). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to service connection for a cervical spine disorder is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs