Citation Nr: 1804465	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  12-15 748	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for early discogenic disease at C4-C5 level with mild to moderate spondylosis and paraspinal muscle spasm by x-rays of the cervical spine claimed as cervical condition, to include as secondary to service-connected status post right clavicle fracture.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Christine E. Grossman, Associate Counsel 



INTRODUCTION

The Veteran served in active duty in the U.S. Navy from July 1982 to May 1988 and from March 2003 to July 2003.

These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Caseflow Reader paperless claims processing systems.  Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records.


FINDING OF FACT

A cervical condition was not manifested during active service or within one year of separation therefrom, and is not otherwise related to service, to include as proximately due to or chronically aggravated by the Veteran's service-connected status post right clavicle fracture.


CONCLUSION OF LAW

The criteria for service connection for a cervical condition, to include as secondary to status post right clavicle fracture, have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017).





REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

In addition, service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.

For the showing of a 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.  As types of arthritis are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

As an alternative to direct service connection and aggravation, service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995).

In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  While 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 Veteran).

Analysis

The Veteran contends that his early discogenic disease at C4-C5 level with mild to moderate spondylosis and paraspinal muscle spasm by x-rays of the cervical spine should be service-connected on either a direct basis or as secondary to his status post right clavicle fracture.

The Veteran's service treatment records are silent for early discogenic disease at C4-C5 level with mild to moderate spondylosis and paraspinal muscle spasm by x-rays of the cervical spine.

A January 2010 note from Fajardo Imaging, Inc., an April 2011 MRI of the cervical spine from Metropolitan CT & Open MRI Center, and outpatient treatment records from the San Juan VA Medical Center from April 2011 to July 2011 indicate the Veteran has a diagnosis of early discogenic disease at C4-C5 level with mild to moderate spondylosis and paraspinal muscle spasm by x-rays of the cervical spine.

In April 2010, the Veteran had a VA examination of the spine.  In this examination, the examiner opined that the Veteran's currently diagnosed cervical condition is less likely as not related or secondary to the Veteran's service-connected right clavicle fracture.  The examiner noted that when the Veteran had the motorcycle accident in 1983, he did not complain of cervical pain.  In addition, the examiner noted that the cervical area and right clavicle are different anatomical areas of the body unrelated to each other.  The currently diagnosed cervical condition and right clavicle condition are different disease entities with different pathophysiological processes unrelated to each other.  The examiner concluded that the diagnosed cervical condition is more likely than not related to the natural process of aging.  

Applying the evidence of record to the elements of direct service connection, the Veteran has a current diagnosis of early discogenic disease at C4-C5 level with mild to moderate spondylosis and paraspinal muscle spasm by x-rays of the cervical spine, claimed as a cervical condition, as indicated in several medical treatment records, including the January 2010 note from Fajardo Imaging, Inc., April 2010 VA examination, an April 2011 MRI of the cervical spine from Metropolitan CT & Open MRI Center, and 2011 outpatient treatment records from the San Juan VA Medical Center. Thus, the first element of service connection, a current disability, has been met.

Second, The Veteran has an in-service event, in that he did suffer a motor cycle accident in 1983 during service. Thus, the second element is also met.

Turning to the third element , a nexus between the current disability and the in service event, the preponderance of the evidence is against the claim. The VA examiner determined that the cervical condition was more likely due to aging, and accurately pointed out that the Veteran's service treatment records are silent for a cervical condition diagnosis or treatment or complaints of a neck condition at the time of the motorcycle accident in service.  

With regard to secondary service connection, the Veteran has contended that his cervical condition was caused by his service-connected status post right clavicle fracture.  The question of nexus was addressed in the April 2010 VA examination, where the examiner opined that the Veteran's currently diagnosed cervical condition is less likely as not related or secondary to the Veteran's service-connected right clavicle fracture. The examiner explained how the two conditions were different anatomically and were different disease entities and thus, unrelated. Further, the examiner, as noted, attributed the cervical condition to aging.   

While the Board has considered with sympathy the Veteran's lay statements, it cannot afford probative weight to his assertions with respect to the etiology of his cervical condition in this case.  While he is competent to report his experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his cervical condition.  Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006).  The Veteran's reports of his symptoms are relevant, competent, and credible; however, the question of the etiology of his cervical condition is limited to the purview of someone with medical knowledge and training, such as the VA examiner in this case.  Thus, the Veteran's assertions of the etiology of his cervical condition are not competent evidence.

The VA examiner provided the most probative evidence as to the etiology of the Veteran's cervical condition.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  The rationale was sufficient and accurately portrayed the evidence and addressed the relevant facts.  It is clear that the examiner reviewed the entire claims file and considered the appellant's contentions. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). 
 
In sum, the preponderance of the evidence does not show that the Veteran's cervical condition of early discogenic disease at C4-C5 level with mild to moderate spondylosis and paraspinal muscle spasm by x-rays of the cervical spine is related to active service; manifested within one year from the date of separation from service; or that it was caused by his service-connected disabilities.  Since the preponderance of the evidence is against the claim, service connection for a cervical spine disability is not warranted. U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to service connection for early discogenic disease at C4-C5 level with mild to moderate spondylosis and paraspinal muscle spasm by x-rays of the cervical spine claimed as cervical condition, to include as secondary to service-connected status post right clavicle fracture is denied.







____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs