Citation Nr: 18155023 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 17-09 419 DATE: December 3, 2018 ORDER The claim of entitlement to service connection for a cervical spine disability is denied. REMANDED The claim of entitlement to a rating greater than 20 percent for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbar spine is remanded. The claim of entitlement to a rating greater than 20 percent for a right shoulder impingement syndrome is remanded. FINDING OF FACT Although the Veteran asserts that his current cervical spine disability is related to his service, no cervical spine disability was shown in service or for many years thereafter and competent, probative opinion evidence addressing whether there exists a medical relationship between current cervical spine disability and the Veteran’s service weighs against the claim. CONCLUSION OF LAW The criteria for service connection for cervical spine disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1985 to June 2005. This appeal to the Board of Veterans’ Appeals (Board) arose from an August 2015 rating decision, in which the RO denied service connection for a neck disability, and denied ratings in excess of 20 percent for the Veteran’s service-connected DDD and DJD of the lumbar spine and for right shoulder impingement syndrome. In November 2015, the Veteran filed a notice of disagreement (NOD). In January 2017, the RO issued a statement of the case (SOC), and, in February 2017, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals). Also, this appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.900(c). At the outset, with respect to the cervical spine disability claim herein decided, the Board has determined that all notification and development actions needed to fairly adjudicate the claim have been accomplished. The May 2012 pre-rating letter provided notice of what is needed to substantiate service connection claim. Pertinent medical evidence associated with the claims file primarily consists of service treatment records, private treatment records, VA treatment records, as well as the report of December 2012 VA examination. Notably, there is no identified evidence for which the Veteran has provided appropriate authorization to obtain, or other existing, relevant evidence outstanding, and neither the Veteran nor his representative had identified any error or omission in the assistance provided. Accordingly, the Veteran is not prejudiced by the Board proceeding to a decision on this claim, at this juncture. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, such as arthritis, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for arthritis), even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) 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 attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection based on continuity of symptomatology (in lieu of a medical nexus opinion) apply to chronic diseases as defined in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran contends that his cervical spine disability is related to service. Service treatment records (STRs) document July 1990 treatment for a right trapezius muscle strain. April 1985 pre-induction examination and May 2005 retirement examination revealed a normal spine. Post-service treatment records are silent of any complaints or treatment of any cervical spine disability or complaints of neck pain. As part of a physical examination in a September 2007 VA treatment record, the physician noted that Veteran’s neck was supple and had full range of motion. During a December 2016 VA examination, the Veteran was diagnosed with a cervical strain with discogenic and osteoarthritic changes. The examiner opined that the Veteran’s cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was only one instance of a cervical strain during service and that there are no subsequent medical records showing continuation since 1990. The examiner also opined that a neck injury secondary to airborne jumping would have presented closer to time of injury rather than decades later. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for a cervical spine disability is not warranted. The above-cited evidence documents that the Veteran has a current diagnosis of cervical strain with discogenic and osteoarthritic changes. However, the evidence of record fails to persuasively establish a medical relationship between current cervical spine disability and the Veteran’s service. As indicated, the service treatment records only document one instance of cervical strain over twenty-eight years ago and are devoid of reference to any other cervical spine complaints or disability. Post-service medical records are silent of any complaints or treatment for a cervical spine disability for years after service, and first diagnosis of the Veteran’s current cervical strain with discogenic and osteoarthritic changes was not until a December 2016 VA examination. Such is well outside the period for establishing service connection for any arthritic condition on a presumptive basis. See The Board also points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Furthermore, there is no competent, probative evidence or opinion to support a finding that there exists a medical nexus between a cervical spine disability diagnosed many years after service and active duty. Rather, in the only medical opinion to address such question, the VA clinician who examined the Veteran and provided the December 2016 opinion explicitly rendered a conclusion that weighed against a finding of service connection. Such opinion clearly was based on examination of the Veteran and full consideration of the Veteran’s documented medical history and the lay assertions of record. Thus, the December 2016 opinion was supported by a full, clearly-stated rationale and without reliance solely on the absence of documentation of complaints. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Accordingly, the Board accords the December 2016 opinion full probative weight on the medical nexus question. Furthermore, as for any direct assertions by the Veteran that there exists a medical relationship between the Veteran’s claimed cervical spine disability and service, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to report matters experienced and observed, and to provide opinions on some limited medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the etiology of the GERD at issue is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (providing that lay persons may be competent to identify a broken leg, but are not competent to diagnose cancer). As the Veteran is not shown to be anything other than a layperson without appropriate training and expertise, he is not competent to render a probative (i.e., persuasive) opinion the medical matters upon which this claim turns. Id. As such, for this claim, lay assertions as to the etiology of the disability at issue have no probative value. For all the foregoing reasons, the Board finds that, the claim for service connection for a cervical spine disability must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND The Board’s review of the claims file reveals that further action on the remaining claims on appeal is warranted. The Board notes that in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing, “wherever possible,” for pain on both active and passive motion, and in weight-bearing and non-weight bearing (as appropriate), and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia, 28 Vet. App. at 168-70. The Veteran was last afforded VA examinations for evaluation of his service-connected lumbosacral spine and his right shoulder impingement syndrome in December 2016. On these examinations, range of motion testing on passive motion and on weight bearing and non-weight bearing (as appropriate) was not accomplished. Such information, as well as other information responsive to 38 C.F.R. § 4.59 and Correia, is needed to properly evaluate both the lumbosacral spine and right shoulder impingement syndrome. Under these circumstances, the Board finds that a remand is necessary to arrange for the Veteran to undergo VA examinations to obtain clinical findings consistent with to Correia to fully determine the severity of his service-connected back disability and his right shoulder disability. Hence, the AOJ should arrange for the Veteran to undergo VA examinations of the lumbar spine and of the right shoulder by appropriate medical professional(s). The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may well result in denial of his increased rating claims. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking actions responsive to the above, to ensure that all due process requirements are met, and that the record with respect to the remaining claims is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. Regarding VA records, the claims file includes records of the Veteran’s treatment are from the VA Medical Center (VAMC) in Fayetteville, dated to September 17, 2017. Hence, there may be additional VA treatment records that have not yet been obtained. Therefore, the AOJ should obtain from the above-noted facility all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) regarding records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal (particularly regarding any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103 (b); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claims on appeal. Adjudication of each higher rating claim should include consideration of whether ”staged rating” of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate. These matters are hereby REMANDED for the following action: 1. Obtain from the Fayetteville VAMC (and any associated facility(ies) all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since September 17, 2007. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA spine examination, by an appropriate medical professional. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the lumbar spine (expressed in degrees) in active motion, passive motion, weight-bearing, and non-weight bearing, as appropriate. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state and explain why. The examiner should render specific findings as whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the thoracolumbar spine due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether the Veteran has any (or, has disability comparable to) ankylosis of the thoracolumbar spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. The examiner should identify each chronic neurological manifestation of the service-connected lumbar spine disability other than radiculopathy. For each identified manifestation, the examiner should indicate whether such manifestation constitutes a separately ratable disability; and, if so, should provide an assessment of the severity of the manifestation. Further, considering all orthopedic and neurological findings, the examiner should render specific findings for evaluating intervertebral disc syndrome (IVDS)-specifically, comment as to the total duration and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician) over the past 12 months: (a) at least one week, but less than 2 weeks; (b) at least two weeks but less than 4 weeks; (c) at least 4 weeks but less than 6 weeks; or (d) at least 6 weeks. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. Also after all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran’s response has expired, arrange for the Veteran to undergo a VA examination of his right shoulder by an appropriate medical professional. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented medical history and assertions. The examiner should conduct range of motion testing of the right shoulder (expressed in degrees) on both active motion and passive motion and in both weight bearing and non-weight bearing (as appropriate). The examiner should also conduct range of motion testing of the left shoulder, for comparison purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state and explain why. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. Also, if the examination is not conducted during a flare-up, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should specifically indicate whether the Veteran is able to raise his right arm above shoulder level. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claims on appeal considering all pertinent evidence (to particularly include all evidence added the claims file since the last adjudication) and legal authority (to include, with respect to each higher rating claim, consideration of whether staged rating of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel