Citation Nr: 18152484 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-25 695 DATE: November 27, 2018 ORDER Entitlement to service connection for a pinched nerve due to degenerative arthritis and disc disorder (also claimed as spinal stenosis) to include as secondary to contaminated water at Camp Lejeune is denied. FINDING OF FACT A pinched nerve, diagnosed as left upper extremity radiculopathy, associated with cervical and lumbar degenerative joint disease and spinal stenosis did not manifest in service and is not attributable to service; arthritis and organic disease of the nervous system did not manifest to a compensable degree within one year of discharge from service. CONCLUSION OF LAW A pinched nerve due to degenerative arthritis and disc disorder (also claimed as spinal stenosis) was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1972 to November 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran presented testimony via telephone with RO personnel in an informal conference. A summary of the proceeding has been associated with the claims folder. Pinched nerve due to degenerative arthritis and disc disorder The Veteran contends that he has a pinched nerve associated with degenerative arthritis and disc disorder that is related to service, to include as secondary to contaminated water at Camp Lejeune. Veterans are entitled to compensation from VA if they develop a 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.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran 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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For certain chronic disease, including arthritis and organic disease of the nervous system, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. 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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b). The Board notes that the Veteran has not claimed that his disability on appeal is the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. Amended 38 C.F.R. §§ 3.307 and 3.309 establish presumptive service connection for Veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during this period, and who have been diagnosed with any of the following eight diseases: adult leukemia; aplastic anemia and other myelodysplastic syndromes; bladder cancer; kidney cancer; liver cancer; multiple myeloma; non-Hodgkin’s lymphoma; and Parkinson’s disease. In addition, the amendments establish a presumption that these individuals were disabled during the relevant period of service, thus establishing active military service for benefit purposes. This amendment implements a decision by the Secretary of Veterans Affairs that service connection on a presumptive basis is warranted for claimants who served at Camp Lejeune and later develop the diseases listed above. The evidence of record demonstrates that the Veteran has been treated for cervical and lumbar degenerative joint disease and spinal stenosis as well as left upper extremity radiculopathy. Notably, these disabilities are not presumed to be related to his exposure to contaminated water at Camp Lejeune during his service. 38 C.F.R. § 3.309. Nevertheless, the Veteran’s personnel records indicate that he was stationed at Camp Lejeune during the relevant time period. As a result, exposure to contaminated water is conceded. The absence of a disease from the presumptive list does not preclude a veteran from otherwise proving that his disability resulted from exposure to contaminated water at Camp Lejeune. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, the Board will still consider whether entitlement to service connection can be granted on any other basis. The Board also notes that the Veteran’s service treatment records document treatment in May 1973 for whiplash to the cervical spine. The remainder of the Veteran’s service treatment records are absent complaints of or treatment for the spine or neurological disability. His separation examination dated November 1975 documented normal orthopedic and neurological examination. The Board notes that a September 2013 VA examination documented a finding of cervicalgia with onset of 2013. The Veteran reported during the VA examination that he initially experienced pain in his lumbar spine which radiated to his neck. VA treatment records document treatment for lumbar degenerative joint disease as well as stenosis beginning in 2013. See, e.g., a VA treatment record dated July 2013. Further, a November 2013 VA examination report notes a finding of cervical degenerative joint disease with left upper extremity radiculopathy. The Veteran reported during the VA examination that the pain in his left upper extremity began in March 2013. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran’s current left upper extremity radiculopathy associated with cervical and lumbar degenerative joint disease and spinal stenosis is related to his service. Specifically, the Veteran was afforded a VA examination in September 2013. The VA examiner noted the Veteran’s in-service treatment for whiplash as well as the Veteran’s report of exposure to contaminated water during service and his treatment for lumbar and cervical degenerative joint disease with radiating pain to the upper extremity. After examination of the Veteran and consideration of his medical history, the VA examiner concluded that it is less likely than not that the Veteran’s degenerative joint disease of the cervical and lumbar spine and spinal stenosis with radiculopathy were incurred in or caused by service. Although the VA examiner noted the Veteran’s treatment for whiplash in May 1973, she noted that the X-ray report was negative. Further, she reviewed medical literature which did not indicate a relationship and opined that degenerative joint disease and spinal stenosis are part of a wear and tear with aging process. The September 2013 VA examination was based on upon thorough review of the record and analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Additionally, the VA examiner’s opinion is consistent with the Veteran’s documented medical history, which is absent any report of symptomatology consistent with a neurological, neck, or back disability for more than 35 years after active service. The examiner also noted the Veteran’s in-service treatment for whiplash and the Veteran’s exposure to contaminated water which was determined to be less likely than not related to the current degenerative joint disease and spinal stenosis with radiculopathy. The Veteran has not submitted a competent medical opinion to contradict the VA examiner’s opinion that his left upper extremity radiculopathy associated with degenerative arthritis and spinal stenosis is not related to service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. § 5107(a) (2012) (it is the claimant’s responsibility to support a claim for VA benefits). In relevant part, 38 U.S.C. 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board observes the Veteran’s statements of record indicating he has a pinched nerve associated with degenerative arthritis and disc disorder related to service. To the extent the Veteran asserts this disability is related to his service, the Veteran is competent to report that he has a current diagnosis (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, arthritis of the cervical and lumbar spine as well as left upper extremity radiculopathy were not noted during service. In as much as the service examinations of the spine and extremities are normal, he did not have characteristic manifestations sufficient to identify the chronic disease entity, arthritis and organic disease of the nervous system, during service or within one year of separation. 38 C.F.R. § 3.303(b). The Board observes that the Veteran has reported longstanding pain in his spine and extremities. The Board notes that the Veteran is competent to report his symptoms both current and past. However, this lay evidence is inconsistent with the normal examinations of his spine and extremities upon separation from service. Further, the in-service examination is more credible and more probative than his after-the-fact lay assertions. We conclude that the objective findings are far more probative and credible than the lay evidence submitted in support of a claim for benefits. The Board must find that the Veteran’s statements indicating a nexus between his left upper extremity radiculopathy associated with cervical and lumbar degenerative joint disease and service to be of minimal probative value and outweighed by the VA opinion, prepared by a skilled neutral professional. We again note that the Veteran’s in-service treatment for whiplash in May 1973 as well as his exposure to contaminated water while stationed at Camp Lejeune. However, chronic pathology was not noted during service and the subsequent service examinations were normal for the neck, back, and extremities. In addition, chronic pathology was not identified within one year of separation. In short, the credible and probative evidence establishes that cervical and lumbar degenerative arthritis as well as left upper extremity radiculopathy were not manifest during service or within one year of separation. More specifically, we find that there is a lack of credible evidence of continuity. 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 pinched nerve due to degenerative arthritis and disc disorder (also claimed as spinal stenosis) to include as secondary to contaminated water at Camp Lejeune. The benefit sought on appeal is accordingly denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel