Citation Nr: 1800451 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-05 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a neck disability, to include degenerative disc disease and muscle spasm. 2. Entitlement to service connection for a low back disability, to include degenerative disc disease and muscle spasm. 3. Entitlement to service connection for bilateral cubital tunnel syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from October 1986 to July 1990, from October 1990 to March 1991, and from March 1991 to April 1991. This case comes before the Board of Veterans' Appeals (the Board) from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This case was previously before the Board in September 2016 and July 2017, on both occasions the Board remanded the issues on appeal in order to schedule a Board hearing. The Veteran testified before the undersigned Veterans Law Judge at an October 2017 Videoconference hearing. A transcript of the hearing is associated with the claims file. The issue of entitlement to service connection for bilateral cubital tunnel syndrome is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. It is reasonably shown that the Veteran's recurrent episodes of neck pain with muscle spasms began in service and has persisted since that time. 2. It is reasonably shown that the Veteran's recurrent episodes of low back pain with muscle spasms began in service and has persisted since that time. CONCLUSIONS OF LAW 1. Service connection for a separate neck disability, diagnosed as muscle spasms, is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. Service connection for a low back disability, diagnosed as muscle spasms, is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has met all of the duty to notify and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2015); 38 C.F.R. §§ 3.159, 3.326 (2017). For the service connection and increased rating issues, review of the claims folder reveals compliance with the VCAA. 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters sent from the RO to the Veteran in August 2009 and August 2012. This letters satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) by: (1) informing her about the information and evidence not of record that was necessary to substantiate his increased rating claim; (2) informing her about the information and evidence the VA would seek to provide; and (3) informing her about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the VCAA letter advised the Veteran of the elements of a disability rating and an effective date. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Thus, the Veteran has received all required notices in this case for his service connection claims, such that there is no error in the content of VCAA notice. See also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With regard to the timing of VCAA notice, the Court and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued the August 2009 VCAA notice prior to the rating decision on appeal. Thus, there is no timing error. With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), VA treatment records and military personnel records. For her part, the Veteran has submitted post service treatment records, personal statements and lay statements. The Veteran was provided VA medical examinations in September 2012, January 2013, July 2013 and December 2015. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of her service connection claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. There has been no allegation otherwise made by the Veteran in this regard. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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), 3.309(d). That is to say, some diseases are chronic, per se, such as arthritis, and therefore will be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year after service. Even this presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303 (b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third elements discussed above. Savage, 10 Vet. App. at 495-496. Therefore, the Veteran's claims for entitlement to service connection will be evaluated under the general VA rules and regulations discussed above. The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). 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 issue shall be given to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). That being the relevant law for the Veteran's claims of entitlement to service connection, the Board will discuss the merits of each claim separately. Neck and Back Disorders The Veteran has claimed that her current neck and back conditions are related to her active duty service. Specifically, lifting heavy objects and firing a grenade launcher. The Veteran's STRs confirm that the Veteran sought treatment for chest pain in July 1987 due to recoil from an M203 grenade launcher. When she sought further treatment in November 1987 the examiner found her neck to be supple. In May 1988 the Veteran was treated for a stiff neck. The Veteran's STRs also show that she sought treatment for a low back strain in March 1988 and severe back pain in May 1988. She also received treatment for her low back in June and August 1988. However, a June 1990 examination found her spine and other musculoskeletal features to be normal with no complaints. Furthermore, the Veteran's April 1991 separation exam found her spine and other musculoskeletal features to be normal and with no recurrent back pain. Following service, the Veteran sought treatment in March 1998 for back and neck pain. The Veteran was treated in 1996 for neck pain, which was noted as being most likely due to cervical muscle strain. In March 1998 the Veteran was diagnosed with a strained trapezius muscle. The record reflects that she has continued to receive treatment for back and neck pain throughout the 2000s. In support of her claim the Veteran has submitted a lay statement from Mrs. Y dated August 2009 which states that prior to service the Veteran was active with no injuries and she first began experiencing back and neck pain during service. Mrs. Y wrote that the Veteran continued to experience pain after service. The Veteran also submitted a private treatment record dated January 2011 from Dr. R., her treating physician. He concluded based upon a review of the Veteran's medical history and an in-person examination that she had tight, spastic cervical and thoracic muscle spasm - primarily along the right paravertebral muscles, bilateral lumbar muscles and spinous processes. He reasoned that once the Veteran sustained a significant chest wall and right scapular/parathoracic muscle injury following the live fire of an M203 grenade launcher, she continued to have other related injuries from not healing well the first time. He further reasoned that it is well known that muscle spasm is a recurrent mechanism whereby only spastic muscle will cause the adjacent muscle to also become spastic and painful. In June 2016 the Veteran was afforded a VA examination for her back condition and diagnosed with degenerative arthritis of the spine. The examiner reviewed the Veteran's claims file and conducted an in-person examination. He concluded that the Veteran's degenerative disc disease was less likely than not (less than 50% probability) caused by service. In his rationale he stated that the Veteran had some incidents in the 1980s of back pain, but records show that on multiple subsequent examinations there was no complaint of back pain. He found this to be consistent with the diagnosis in service of muscular strain, which tends to be self-limited. Additionally, he wrote, the current diagnosis of degenerative disc disease is a different condition and Dr. R. ignored the evidence of resolution of the symptoms and failed to explain how muscular strain results in degenerative disc disease. The Veteran was also afforded a VA examination for her neck condition in June 2016 and diagnosed with degenerative arthritis of the spine. However, upon a review of the claims file and an in-person examination the examiner concluded that it was less likely than not (50 percent or great probability) that the Veteran's neck condition was incurred or caused by carrying gear, having a recoil of a grenade launcher or caused by the claimed in-service injury, event or illness. His rationale explained that there is no evidence of a neck injury in service significant enough to expect longstanding sequallae. Specifically, the symptoms related to use of grenade launcher, described repeatedly in records as chest and shoulder pain, resolved during service as documented in multiple subsequent examinations. The Board finds that the competent evidence of record reasonably supports the Veteran's claim that she has suffered from thoracic muscle spasm and cervical muscle spasm since service. See 38 C.F.R. § 3.303 (a), (d). Her competent and credible statements with regard to suffering in-service low back and neck symptoms are supported by, as well as consistent with, the findings in her STRs. The medical evidence of record documents that, since her active duty service, she has been treated for low back and neck pain and on occasion has been given a diagnosis of thoracic and cervical muscle spasms. Furthermore, the most probative evidence of record (i.e., the Veteran's consistent reports of ongoing low back pain ever since her service - which the Board considers forthright and credible) supports finding a causal link between the Veteran's intermittent back and neck spasms and her service. In granting the Veteran's claim, the Board emphasizes that certain medical conditions such as muscle spasms can exhibit "active and inactive stages" with recurrent flare-ups, followed by periods of remission. Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Resolving doubt in the Veteran's favor (as mandated by law under 38 C.F.R. § 3.102), the Board concludes that competent medical evidence, as well as the Veteran's competent and credible lay statements about her in-service experiences and her in-service and post-service symptoms, all support a finding that the Veteran's recurrent thoracic and cervical muscle spasms began in service and have persisted since that time. Accordingly, service connection for thoracic and cervical muscle spasm disorders is warranted. ORDER Entitlement to service connection for cervical muscle spasm disorder is granted. Entitlement to service connection for a thoracic muscle spasm disorder is granted. REMAND The Veteran has claimed that her diagnosis of bilateral cubital tunnel syndrome is etiologically related to her active duty service, to include as secondary to her neck condition. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310 (a). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Although the June 2016 VA examiner addressed the issues of direct service connection, aggravation and secondary service connection for bilateral cubital tunnel syndrome, he only addressed aggravation and secondary service connection in relation to degenerative disc disease. However, the VA examiner did not render an opinion as to whether her bilateral cubital tunnel syndrome was aggravated by, or secondary to, her cervical muscle spasms for which service connection has been granted by the Board. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that when adjudicating a secondary service-connection issue, it is clear error for the Board to rely on an opinion that addressed only causation). For this reason, a remand is necessary to obtain an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the June 2016 VA examiner for an addendum opinion regarding her bilateral cubital tunnel syndrome. If the June 2016 VA examiner is unavailable, the addendum opinion should be rendered by another appropriate medical professional. The need for another clinical evaluation is left to the discretion of the medical professional offering the addendum opinion. After reviewing the complete record, the examiner should: Opine whether it is at least as likely as not (50 percent probability or greater) her bilateral cubital tunnel syndrome was proximately caused or aggravated by her service-connected neck muscle spasms. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If the Veteran's bilateral cubital tunnel syndrome is aggravated by her service-connected disability, the examiner should report the baseline level of severity prior to the onset of aggravation and the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected cervical muscle spasm. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim must be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representatives must be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs