Citation Nr: 1806637 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-20 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for low back syndrome with degenerative changes and bilateral lower extremity numbness. 2. Entitlement to service connection for a neck disorder, to include as secondary to low back syndrome with degenerative changes and bilateral lower extremity numbness. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1989 to June 1993 and October 1995 to January 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the Board at a May 2016 hearing conducted at the RO. A transcript of the hearing is of record. These matters were previously before the Board in June 2016. The issue of entitlement to a rating in excess of 10 percent for low back syndrome with degenerative changes and bilateral lower extremity numbness is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A neck disorder was not present during service; did not develop as a result of any incident during service; and is not related to or aggravated by a service-connected disability. CONCLUSION OF LAW A neck disorder was not incurred in or aggravated by active service and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for a neck condition because it was incurred in service or, alternatively, was secondary to his service-connected low back disorder. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish a right to compensation for a present disability secondary to a service-connected disability, a veteran must demonstrate the existence of (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509 (1998). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To demonstrate chronic disease in service, 38 C.F.R § 3.303(b) requires "manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time . . . ." Id. "When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity." Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease" in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). The Veteran's neck disorder is not a chronic disability under 38 C.F.R. § 3.309(a), and reports of a continuity of symptomatology cannot support a claim for service connection under 38 C.F.R. § 3.303(b). The Board will consider any lay reports of a continuity of symptoms, however, in the context of a claim for service connection under 38 C.F.R. §§ 3.303(a) and (d). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may 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). Turning first to service connection as incurred in or due to any incident of service, the Board finds service connection is not warranted on this basis. The record confirms the presence of the first element of service connection - a current disability - in a November 2016 VA examination that documented degenerative disc disease. As for the second element - an in-service injury - the service treatment records (STRs) document a June 1996 complaint of neck pain. Accordingly, an in-service injury is established. The record does not establish the third element, however: a link between the Veteran's neck disorder and any incident of active duty service. A February 1993 separation noted the Veteran's neck to be normal. After the Veteran entered service a second time, a June 1996 STR noted neck pain with a sudden onset, assessed as muscle strain. In May 1999, a separation examination found the Veteran's neck to be normal and a Report of Medical History noted complaints of back pain but no complaints of neck pain. In December 1999, an STR regarding atypical chest pain while preparing for the PRT (physical readiness test) reported "[no] nausea [no] arm pain / jaw or neck pain." At the May 2016 Board hearing, the Veteran testified that he first sought treatment with a private provider for his neck in 2006, although the earliest private treatment records associated with the claims file date to 2009. The only medical evidence addressing causation of the Veteran's neck disorder is two VA opinions, both of which weigh against service connection. A July 2012 VA opinion found it less likely as not that the Veteran's condition was a result of the June 1996 in-service muscle strain, stating that muscular strain affects the musculature and "has no anatomical association with the spinal structures or spinal nerves," thus it would not contribute to the development of degenerative disc disease. The July 2012 VA opinion noted that this was supported by the "consensus of the medical literature," which did not find muscle strain to be a risk factor or causal element of degenerative disc disease. In addition, a November 2016 VA examination opinion also found it less likely than not that the Veteran's neck disorder was etiologically related to service. To support this finding, the VA opinion cited to the lack of neck complaints in the 1999 STRs and noted that the 1996 muscle strain resolved. The VA opinion further noted that there was no continuity of symptoms between the Veteran's reported injury in 1999 and treatment, as it took many years for the Veteran to seek treatment. The Board has considered lay statements submitted by the Veteran. Such statements include the Veteran's testimony at the May 2016 Board hearing that he had the same symptoms in 1999 that he had in 2006 when he began receiving treatment and that he was misdiagnosed in 1999. They also include a December 2016 lay statement from the Veteran's former wife stating that the Veteran "hurt his neck" in 1999 while preparing for his physical readiness test. As to the statements that address symptoms and their duration, the Board finds these statements are competent because they relate to observations that may be made by a lay person. See Falzone v. Brown, 8 Vet. App. 398 (1995). A lay person is not competent, however, to opine as to medical etiology or render medical opinions. Barr, v. Nicholson, 21 Vet. App. 303, 307 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). Thus, to the extent the Veteran makes a medical finding in his statement that chest pain was misdiagnosed in 1999, the Board finds the Veteran is not competent to make such a determination. Medical expertise is required to determine causation of a complex diagnosis such as chest pain. Beyond competency, the Board must also determine whether these statements are credible. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, the Board finds the statements regarding the Veteran's symptoms and their duration are not credible. These statements date the Veteran's neck pain back to 1999, but the STRs did not document neck pain. Instead, a December 1999 STR specifically noted that the Veteran did not have neck pain. Furthermore, the Board notes that the Veteran immediately filed for service connection in August 2000 for low back condition and left varicocele but did not file for neck pain. Finally, records in the claims file contradict a 1999 start date for the Veteran's neck pain: the Veteran reported at the October 2009 VA examination that he had had neck pain "for the past five years" (i.e., since 2004) and an April 2015 private treatment record documented neck pain "for the past 7 years" (i.e., since 2008). The Board acknowledges that there is a four-year gap between these dates, however the Board gives precedence to the fact that the Veteran reported in two separate medical records that his symptoms started later than 1999. For these reasons, the Board finds the lay statements submitted by the Veteran are not credible. Accordingly, the medical evidence weighs against a finding of service connection, and the Board finds that service connection is not warranted based on a direct link to service. This does not end the Board's analysis, however, as the Veteran has also claimed service connection as secondary to his service-connected low back disorder. As discussed above, the Veteran has a current disability: degenerative disc disease. He is also service connected for low back syndrome with degenerative changes and bilateral lower extremity numbness. After reviewing the evidence, however, the Board must conclude that the preponderance of the evidence weighs against a finding of a nexus between the Veteran's neck disorder and service-connected low back condition. The pertinent medical evidence weighs against a finding of secondary service connection. The October 2009 VA examination found it less likely as not that the Veteran's neck disorder was secondary to his low back condition, citing the lack of any sign of significant compensatory changes associated with the low back condition, such as scoliosis. Likewise, the November 2016 VA examination found it less likely than not that the Veteran's neck disorder was caused or aggravated beyond its natural progression by the service-connected low back disability because the Veteran stated in an April 2009 treatment record that his neck pain became more noticeable since his back pain decreased, which "is in conflict with an aggravation claim." Moreover, the Veteran's low back condition has not been shown to have caused motor weakness or gait disturbance and therefore "has no pathophysiological mechanism to aggravate a neck condition." The Board has considered lay statements from the Veteran, such as his June 2009 and July 2012 statements that his back condition caused his neck condition. As stated above, however, a lay person is not competent to opine as to medical etiology or render medical opinions. Barr, 21 Vet. App. at 307; see Grover, 12 Vet. App. at 112. The Veteran has not demonstrated his competency to make a complex medical determinations like the determination of what has caused neck pain and the relationship between two complex conditions. For these reasons, service connection for neck disorder as secondary to service-connected low back condition is not warranted. ORDER Entitlement to service connection for a neck disorder, to include as secondary to low back syndrome with degenerative changes and bilateral lower extremity numbness, is denied. REMAND Remand is necessary to provide an additional VA examination. The November 2016 VA examination noted the Veteran's "sciatic nerve pain down the right leg" in the medical history but later found no radicular pain. This discrepancy must be specifically addressed. Moreover, for a condition such as the Veteran's low back syndrome with degenerative changes and bilateral lower extremity numbness, VA must provide an examination that meets the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016), i.e. provide an examination that reports joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Because the November 2016 VA examination did not meet these requirements, an additional VA examination is required. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to any private or VA treatment records for his low back syndrome with degenerative changes and bilateral lower extremity numbness that have not been associated with the claims file. A signed release form should be completed for each private treatment provider. The AOJ should obtain any records identified by the Veteran that have not been associated with the claims file. 2. Schedule the Veteran for a VA thoracolumbar spine examination. After examining the Veteran and reviewing the claims file, the clinician should determine the current severity of the Veteran's service-related low back syndrome with degenerative changes and bilateral lower extremity numbness. The examination must address range of motion of the thoracolumbar spine, painful motion (and at what point it starts), additional loss of motion after repetitions, and functional loss due to pain. This information must be derived from joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been made and reflect those testing results. Attention must also be directed to all other current symptoms, including spasms, periods of doctor-prescribed bedrest (incapacitating episodes), and ankylosis. Finally, the clinician must address whether there are any associated objective neurological abnormalities, to include radiculopathy of the lower extremities. If no radiculopathy is found, rationale must be provided to explain the discrepancy between the Veteran's reported pain down the leg and the lack of neuropathy. The clinician must review the claims file and provide a full rationale (i.e. basis) for any expressed medical opinions. 3. Review the record to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. If the benefit is not fully granted, issue a supplemental statement of the case and provide the appellant and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs