Citation Nr: 1757712 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 10-23 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for neurological impairment of the left upper extremity. ORDER Service connection for a cervical spine disorder is denied. Service connection for neurological impairment of the left upper extremity is denied. FINDINGS OF FACT 1. Signs and symptoms of a cervical spine disorder have been medically attributed to a known clinical diagnosis; arthritis of the cervical spine did not become manifest to a degree of 10 percent or more within one year of service separation; a cervical spine disorder is not etiologically related to service or to a service connection disability. 2. Signs and symptoms of neurological impairment of the left upper extremity have been medically attributed to a known clinical diagnosis; neurological impairment of the left upper extremity is not etiologically related to service or to a service connection disability. CONCLUSIONS OF LAW 1. A cervical spine disorder was not incurred in service and is not proximately due to, a result of, or aggravated by a service-connected disability; cervical spine arthritis is not presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1117, 1154(b), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d), 3.307, 3.309, 3.310, 3.317 (2017). 2. Neurological impairment of the left upper extremity was not incurred in service and is not proximately due to, a result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1117, 1154(b), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d), 3.310, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service in the Marine Corps from September 15, 1990, to May 1, 1991. He was awarded a Combat Action Ribbon. He had additional periods of service in the Marine Reserves from March 1983 to September 1990, and in the Army Reserves from May 1991 to April 1998. These terms of service involved periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This appeal comes before the Board of Veterans' Appeals (Board) from a February 2017 Order of the United States Court of Appeals for Veterans' Claims (Veterans Court). The appeal originated from a February 2008 rating decision of the RO in Chicago, Illinois. In September 2014, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge sitting at the RO. The Veteran also testified at a March 2009 local hearing before a Decision Review Officer at the RO. A transcript of each hearing is associated with the claims file. In an August 2015 decision, the Board denied these claims. The Veteran appealed that decision to the Veterans Court. In a February 2017 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's decision and remanded these issues to the Board for additional development consistent with the Joint Motion. In April 2017, the Board remanded the appeal for additional evidentiary development to comply with the Joint Motion. The appeal has since been returned to the Board for further appellate action. VA law provides that, for disability resulting from personal 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, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a),(b); Wallin v. West, 11 Vet. App. 509, 512 (1998). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran in this case served in the Persian Gulf during the Gulf War. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. To constitute a "qualifying" chronic disability, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). The term "objective indications of chronic disability" includes both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, menstrual disorders. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(b). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: chronic fatigue syndrome; fibromyalgia; functional gastrointestinal disorders (excluding structural gastrointestinal diseases). See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(2)(i). The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(2)(ii). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability shall be considered service connected for purposes of all laws of the United States. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(4). The applicable presumptive period specified in 38 C.F.R. § 3.317(a)(1)(i) has been extended several times and it currently ends December 31, 2021. Compensation shall not be paid if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(c). In the case of a veteran who engaged in combat with the enemy in a period of war, satisfactory lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor. See VAOPGCPREC 12-99. "Satisfactory lay or other evidence" under 38 U.S.C.A. § 1154(b) means "credible evidence." Caluza v. Brown, 7 Vet. App. 498, 510 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table). Regarding Army and Marine Reserve service, before becoming entitled to status as a claimant for VA benefits, an appellant must first demonstrate by a preponderance of the evidence (1) that he or she is a "veteran," for each period of service. Laruan v. West, 11 Vet. App. 80, 84-86 (1998) en banc. The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2014). The term "active military, naval, or air service" includes (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24) (West 2014). Certain presumptions are generally available to claimants to assist in substantiating various elements of a claim for service connection. The presumption of soundness (38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b)) applies to "every veteran." Therefore, establishing "veteran" status for the period of service in question is a prerequisite. Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). The presumption of aggravation (38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2017)) and the presumption of service connection for specific chronic diseases (38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309), including arthritis, can never apply to periods of ACDUTRA and INACDUTRA. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. The vacated May 2015 Board decision contains a summary of the pertinent evidence and that document is incorporated by reference here for its statement of the evidence, with acknowledgement of the specific deficiencies identified by the parties to the February 2017 Joint Motion. The parties to the Joint Motion stipulated that, at the time of the August 2015 Board decision, VA was in possession of microfiche records containing service personnel records and treatment records which had not been loaded to the VA repository and therefore were not reviewed by the Board. These records have since been loaded and have been reviewed by the Board. See VBMS record 02/03/2017. The parties also stipulated that the Board identified a service treatment record dated November 1995 as an examination report conducted during the Veteran's post-active duty service in Reserves. However, the parties agreed that there was no record with this date. Upon review of the service treatment records, the Board finds that the record is documented within VBMS record 06/30/2014. That record is identified as "Tri - Annual" Examination. However, the date of the examination is hand-written in the form "[?]51116." The initial digit appears to be an "8" with a narrow bottom half, in a way which could be mistaken for a "9." The Board finds that this November 1985 record is same the record identified in the Board decision as the November 1995 examination. Finally, the parties stipulated that the Board relied upon an inadequate medical opinion in denying service connection for a cervical spine disorder, in that the medical opinion did not consider the Veteran's lay statements, citing: "[f]or instance, Appellant testified at a September 2014 hearing [...] that he hurt his hands jumping out of an aircraft, and from 'getting blown up a few times.' [...] He contended that he had bone degeneration in his neck and back due to compression from parachuting, or shock waves from explosives. [...] In a May 2010 statement, he contended that being in the infantry was hard on his body, and included speed roping, low- and high-altitude jumps, and spiral rigging. [...] During a May 2010 VA examination addendum for traumatic brain injury (TBI), he reported being thrown off a building and hitting his head, falling from a height. On his March 2007 Application for Compensation, he contended he had neck problems from jumping from planes." The parties agreed that, given that the examiner did not consider relevant lay evidence, remand was warranted for consideration of Appellant's lay statements. Upon remand from the Board in April 2017, the RO obtained a supplemental opinion to address the concerns of the parties to the Joint Motion. In particular, the examiner was instructed to consider the statements of the Veteran as set out in the Joint Motion, as well as all other pertinent evidence. After review of the claims file in May 2017, a VA physician provided the opinion that it is not at least as likely as not (i.e., to at least a 50-50 degree of probability) that a current cervical spine/neck disorder is causally or etiologically related to the Veteran's active service. The VA physician reasoned that, in reviewing the Veteran's statements, it is clear that he was involved in physically active (parachuting, speed roping, and spiral rigging) and sometimes in potentially physically traumatic events ("getting blown up a few times," "falling from heights" and being near "shock waves from explosives"). She acknowledged that these activities and could potentially be associated with injuries; however, she found that there was simply no data to support that, in this particular case, these events did actually cause traumatic injury to the cervical spine. She explained that there was no complaint of neck pain/injury in the available service treatment records. She acknowledged that, it might be said that he had pain that was not reported, and this may be true; however, he did report other various symptoms (knee, upper-respiratory infection, and others), indicating that he did not have difficulty going to be seen at a medical facility. The VA Physician noted that other statements made by the Veteran relating to the timing and onset of his cervical spine symptoms contradicted onset of symptoms in service. The Veteran told several providers, including his physician, neurology, and neurosurgery consultants, that his cervical spine related symptoms began in 2007. In an Emergency Department Physician Note of February 2007, the Veteran stated that he had never had this pain before. According to records, the Veteran separated from military service in May of 1991, roughly 16 years prior to his stated onset of symptoms. The VA physician found no data to support any care or treatment for a neck condition taking place during that time interval. She also noted that the Veteran had a history of alcohol use, which included at least two DUIs and driving charges, as well as one motor vehicle accident, and various falls. After a review of all of the evidence, the Board finds that the April 2017 medical opinion is adequate, as it is based on a complete review of the record, including service treatment records, post-service clinical records, and the Veteran's statements regarding his cervical spine symptoms and history. It is also supported by a rationale that is consistent with the record and with generally accepted medical principles. The Board also finds that signs and symptoms of a cervical spine disorder and left upper extremity disorder have been medically attributed to known clinical diagnoses. Moreover, arthritis (degenerative joint disease) did not become manifest to a degree of 10 percent or more within one year of service separation; and, the diagnosed conditions are not etiologically related to service or to any service-connected disability. The Veteran asserts that the left upper extremity disorder is directly related to an injury in active duty service. However, he has not provided a consistent account of the asserted injury. He testified at the Board hearing that he hurt both hands jumping out of an aircraft. When asked whether he received medical attention after the "accident" he responded "Yes." Later in his testimony, he asserted that his hands (both) were injured from the concussive effect of "Getting blown up a few times." The Veteran testified that his cervical spine disorder was due to "Parachuting or shock waves from explosives." The Board observes that service treatment records reveal no treatment at any time during service for an injury to the cervical spine or left upper extremity; there is no record of a parachute jump injury such as described in his testimony; and the Veteran's account has not been consistent. Nonetheless, the Veteran's testimony as to incurring injuries to the neck and left hand during combat is accepted under the provisions of 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d). However, that acknowledgement alone does not substantiate a claim of entitlement to service connection. There must also be competent evidence establishing a nexus between the current disabilities and the in-service combat injury. The provisions of 38 U.S.C.A. § 1154(b) can only be used to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; they aid him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Pertinent to nexus are the findings at discharge and during the period of service in the Reserves. In March 1991, at the end of the Veteran's period of active duty service during the Persian Gulf War, which is the only period he is known to have engaged in combat with the enemy, the Veteran was provided a physical examination. Findings for his neck, spine, and upper extremities were all clinically normal as were neurological findings. He completed a report of medical history concurrent with the examination on which he stated that he was in good health at that time, and that he had no history of - or current - arthritis, rheumatism, or bursitis, no bone, joint, or other deformity, and no recurrent back pain. Examinations conducted during his post-active duty service in the Reserves, in February 1992 and November 1995, reveal similar findings to the active duty exit examination. Findings for his neck, spine, and upper extremities were all clinically normal as were findings from neurological examination. He completed a report of medical history in February 1992 on which he stated that he had no history of - or current - arthritis, rheumatism, or bursitis; no bone, joint, or other deformity; and, no recurrent back pain. While the Veteran has, in connection with this claim, reported an injury in service, the Veteran has not contended that his current neck or left upper extremity symptoms began in service, or that arthritis became manifest within one year of separation from active duty service. On the VA Form 9, he reported that his left upper extremity symptoms began in 2007. This is consistent with his initial treatment at VA. A February 16, 2007, VA Emergency Department note (VBMS record 02/01/2008) reveals that the Veteran presented with complaint of pain in the left chest and arm "since last week." He reported that he "Never had a similar pain before." A March 6, 2007, General Medical Note (VBMS record 09/30/2008) reveals that cervical pain and left upper extremity numbness and diminished strength had been progressing over the prior one month. An April 5, 2007, Neurosurgery Consultation Note (VBMS record 09/30/2008) reveals that symptoms began "2-3 months ago" Based on the initial manifestation of arthritis more than 1 year after separation from active duty, the Board finds that the presumption provided for arthritis is not applicable. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As noted above, the Veteran was afforded a VA examination in May 2015. The examiner opined that the left upper extremity complaints were associated with the cervical spine disorder as radiating pain or radiculopathy, and that the cervical spine disorder was less likely than not incurred in or caused by service. The rationale was that there were no indications of neck injury, complaint, or treatment, in the service treatment records, and his neck complaints appeared to have manifested in the mid 2000's. While this opinion has been found by the parties to the Joint Motion to be inadequate with respect to the examiner's discussion of the Veteran's contentions, the May 2017 opinion reaches the same conclusion, but addresses the Veteran's contentions regarding his injury. There is no medical opinion that purports to relate the Veteran's cervical spine and left upper extremity neurological disorders to service, to include the Veteran's acknowledged combat engagement and associated injuries as described by him, and to include the Veteran's asserted exposure to mustard gas (see hearing transcript at pages 9-10). As discussed above, the mere acceptance of the Veteran's account of incurring injuries does not provide the necessary relationship between those injuries and the current disorders. The May 2017 VA opinion is based on the evidence, as supplied in the service separation examination and post-service Reserve examinations, that the Veteran was clinically normal with respect to the neck, spine, and neurological examinations even after the combat injuries he described. The Board must consider the Veteran's lay statements. It is well established that lay statements are competent evidence with respect to some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, lay evidence is competent with regard to identification of a disease with 'unique and readily identifiable features' which are 'capable of lay observation.' See Barr v. Shinseki, 21 Vet. App. 303, 308 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). The Board finds that establishing an etiologic link between a remote injury in service and current degenerative disc disease, degenerative joint disease of the cervical spine, brachial plexitis, and cervical radiculopathy, requires medical knowledge and is not the type of relationship that is capable of lay observation. Therefore, the Veteran's assertions on these points are not competent evidence. In February 2010 correspondence, the Veteran asserted that his symptoms were due to Gulf War Syndrome. In this case, the Gulf War provisions do not apply as the cervical spine and left upper extremity symptoms have been attributed to the known clinical diagnoses of degenerative joint disease, degenerative disc disease, brachial plexitis, and cervical radiculopathy. 38 U.S.C.S. § 1117; 38 C.F.R. § 3.317. The Board acknowledges that the Veteran has asserted that his cervical spine disorder was due to repeated parachute jumping over the extent of his service. In other words, not a single incident, but the combined effect of his activities in service. It is at least possible that such jumps occurred during his Reserve duty after the most recent service examination. As discussed above, the requirements for establishing entitlement to service connection are different for active duty service and for non-active duty service. The Veteran has not met the initial burden of establishing "veteran" status during any non-active duty service. He must do this by submitting evidence that he became disabled due to an injury or disease incurred in the line of duty during a period of active duty for training, or that he became disabled due to an injury incurred in the line of duty during inactive duty training. The Veteran has not provided sufficient detailed information for the Board to find in his favor on these questions, or even for the Board to order additional development. The Veteran's assertions regarding parachute jumps have been vague and lacking in detail as to the date and duty status at the time of the jumps. Accordingly, he has not met his burden of establishing any additional service (other than active duty) that would qualify him for the benefits sought. In sum, the Board finds that the Veteran's cervical spine and left upper extremity symptoms have been medically attributed to known diagnoses, that arthritis did not become manifest to a compensable degree within one year of service separation, that the current cervical spine and left upper extremity disorders are not related to service, to include acknowledged combat injuries sustained in service, and that the current cervical spine and left upper extremity disorders are not proximately due to, a result of, or aggravated by a service-connected disability. Therefore, the Board concludes that service connection for a cervical spine disorder and a left upper extremity neurological disorder is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD L. Cramp, Counsel Copy mailed to: Veterans of Foreign Wars of the United States Department of Veterans Affairs