Citation Nr: 1815237 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 13-17 788 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, status post laminectomy. 2. Entitlement to service connection for a cervical spine disability, status post cervical spine surgery. REPRESENTATION Appellant represented by: John P. Dorrity, Agent WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active duty service from December 1967 to September 1969. This appeal to the Board of Veterans Appeals (Board) arose from an October 2011 rating decision in which the RO in Newark, New Jersey, among other things, denied the Veteran's claims for service connection for low back and cervical spine disabilities. The Veteran filed a notice of disagreement (NOD) in November 2011. A statement of the case (SOC) was issued in June 2013 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) that same month. In April 2016, the Veteran and his wife testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In December 2016, the Board remanded the claims on appeal to the agency of original (AOJ) for further action, to include additional development of the evidence. After completing the requested development, the RO continued to deny the claims (as reflected in a January 2017 SSOC) and returned these matters to the Board for further consideration. In September 2017, after the appeal was returned to the Board, the Veteran submitted additional evidence in support of his claims. The evidence was not accompanied by a waiver of initial agency of original jurisdiction (AOJ) consideration. The Board points out, however, that much of the evidence was duplicative of evidence previously submitted. Further, because the Veteran filed his substantive appeal after February 2, 2013, and has not specifically requested AOJ review of any newly submitted evidence, waiver of this evidence is not necessary and the Board may consider this evidence in the first instance. See 38 C.F.R. § 20.800, 20.1304 (2017); see also Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C.A. § 7015 (e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of or subsequent to the submission of a substantive appeal where the substantive appeal is filed on or after February 2, 2013). While the Veteran previously had a paper claims file, this appeal is now being processed primarily utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. There are additional documents stored electronically in a Virtual VA (Legacy Content Manager) file. All such records have been reviewed. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Although the Veteran has asserted in-service injury to back and neck and has currently diagnosed disabilities of the lumbar spine and cervical spine, a chronic back or neck disability was not shown during service or for years after service, and the weight of the competent, probative medical opinion evidence on the question of medical nexus to service weighs against each claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, (2017). The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). After a complete or substantially complete application for benefits is filed, the notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112; see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In a February 2011 pre-rating letter, the AOJ provided notice to the Veteran explaining what information and evidence was needed to substantiate his claims for service connection decided herein, what information and evidence must be submitted by him, and what information and evidence would be obtained by VA. It also informed the Veteran how VA determines the assignment of disability ratings and effective dates. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service records, VA examination reports, and private medical records. Also, consistent with the terms of the Board's prior remand action, attempts were also made to obtain the Veteran's Social Security Administration records. However, those records have been destroyed, as indicated by the SSA's response to the AOJ's request for records. Also of record and considered in connection with the claim is the transcript of the Veteran's hearing on appeal, along with various written statements from the Veteran. The Board finds that no further AOJ action on this claim, prior to appellate consideration, is required As for the April 2016 hearing, the Board notes that, during the hearing, the undersigned enumerated the issues on appeal, to include the matters herein decided, and elicited testimony from the Veteran and his wife regarding his theory of each claim. Although the submission of specific, additional evidence was not explicitly suggested, on these facts, such omission was harmless. During the hearing, the undersigned sought to identify any pertinent, existing evidence not currently associated with the record that might have been overlooked or was outstanding that might substantiate the Veteran's claim. Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), to include identification of any prejudice in the conduct of the hearing. The hearing was legally sufficient. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, with respect to these claims, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either the claim herein decided. As such, there is no prejudice to the Veteran in the Board proceeding to a decision on this claim, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id., see Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence showing (1) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (2) present manifestations of the same chronic disease; or (b) when a chronic disease is not shown as such during service, by evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. 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). In the instant case, the Veteran contends that he suffers from back and neck disabilities that are attributable to service. Specifically, in various written statements and during his April 2016 Board hearing, the Veteran reported that during service, he fell off of a five ton ammo truck and hurt his back and neck, after which he was placed on light duty. He stated that back pain has persisted since that time and that he has also continued to suffer from neck pain. The Veteran also reported that several private physicians had suggested to him that his back and neck problems could have been due to a fall or caused by lifting heavy objects. In support of his claims, the Veteran has also submitted lay statements from a number of friends who reported that the Veteran did not have back or neck problems prior to service and that he had begun to complain of back and neck pain upon discharge from service. Turning to the medical evidence of record, the Veteran's service treatment records (STRs) show that the Veteran's spine was clinically evaluated as normal at the time of service entrance examination. A May 1969 treatment entry notes the Veteran's complaints of left-sided back pain after having fallen from a truck tailgate. The Veteran was assessed as having a muscle strain and was placed on truck driving and heavy lifting restriction for two days. The Veteran's STRs are otherwise silent for complaints or treatment related to the back or neck and the Veteran's spine was again clinically evaluated as normal at the time of his August 1969 separation examination. On the accompanying report of medical history, the Veteran similarly reported that he was in good health and denied recurrent back pain. Post-service medical records show that, in May 1993, the Veteran was diagnosed by N.E., M.D., as having degenerative spondylosis from C3 to C7, as determined by magnetic resonance imaging (MRI) findings. At that time, the Veteran reported a 20-year history of having "'two crushed vertebrae.'" An anterior cervical discectomy and fusion was thereafter performed. In April 1997, an MRI of the lumbar spine was performed, and findings were interpreted to reveal disc desiccation and right-sided disc herniations at the L4-5 and L5-S1 levels, with likely nerve root impingement. In January 2000, the Veteran underwent a lumbar laminectomy at L4, L5, and S1m, and a medical facetectomy and foraminotomy at L4-5 and L5-S1. Private medical records then show continued complaints of, and treatment related to, neck and pain subsequent to both surgeries. In August 2011, the Veteran was afforded a VA examination in connection with his claims for service connection for back and neck disabilities. The examiner indicated review of the record and recorded the Veteran's assertion that he had injured his back and neck in service when he fell from a truck and had experienced back and neck pain since that time. The examiner further noted that Veteran's past surgical history related to his back and neck. X-rays were taken, the results of which were interpreted to reveal moderate levoscoliosis of the mid-lumbar spine, severe degenerative changes in the distal lumbar spine, and postsurgical changes in the mid cervical spine with fusion of C4 through C6 vertebral bodies and moderate-to-severe degenerative changes. Based on the review of the claims file, examination of the Veteran, and consideration of the Veteran history, the VA examiner proffered his opinion that the Veteran's lumbar and cervical spine disabilities were not related to his military service. As rationale for that opinion, the examiner notes that after the Veteran's in-service fall, there was only one instance of treatment for neck and low back pain, with no noted fractures or subsequent treatment, physical therapy, surgeries, of hospitalization. The examiner explained that for a fall that occurred in service to cause severe degenerative disc disease of the cervical and lumbar spine necessitating surgery 30 years later, the Veteran "would have had to have had a severe type of trauma and hospitalization which was not the case." The examiner also noted that the Veteran's cervical and lumbar spine did not worsen to the point of requiring surgery until the 1990s and 2000s. He indicated that had the injury sustained in service been sever enough to cause the Veteran's severe neck and low back conditions, the Veteran would have had an earlier surgery or "a massive amount of physical therapy and hospitalizations upon discharge and throughout the 1970s, which was not the case." With respect to whether the evidence warrants a grant of service connection for the Veteran's claimed back disability or neck disability, the Board first finds that competent evidence establishes that the Veteran has currently diagnosed back and neck disabilities, as determined by the VA examiner. The evidence also shows that the Veteran did sustain a fall as described in service. However, as regards to the question of medical nexus-the matter upon which each of these claims turns-the Board finds that the competent, credible and probative weighs against finding a medical relationship, or nexus, between the Veteran's currently diagnosed back or neck disability and his military service. In this regard, the Board points out that there is no objective evidence that arthritis or degenerative changes of the cervical or lumbar spine was/were shown in service, or for many years thereafter. Absent competent evidence indicating that the Veteran had degenerative changes or the cervical or lumbar spine within one year of his separation from service, service connection may not be awarded for any arthritis on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Further, although the Veteran has asserted that he has had back and neck pain since service, the VA examiner considered the Veteran's assertions, but provided a negative nexus opinion as to both claimed disabilities. As the VA examiner, in providing the August 2011 opinion, considered all of the pertinent evidence of records and provided a complete rationale and offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two, the Board accords great probative weight to such opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In this regard, the Board points out that the examiner engaged in a thorough explanation for why the fall injury, as described by the Veteran and documented in his STRs, would not have lead the severe cervical and lumbar spine disabilities, necessitating the surgeries that occurred in 1993 and 2000. Overall, there is no indication that the VA examiner failed to consider any piece of relevant evidence before providing the requested opinion. The Board also finds no reason to discount the medical opinion based on the VA examiner's expertise and qualifications as a medical professional. In this regard, the Board notes that the Veteran has reported that he was treated for back pain shortly after service. However, the treatment described by the Veteran was not the type of treatment that the VA examiner indicated one would see if the in-service fall had been severe enough to have caused the Veteran's current back and neck disabilities. Indeed, the Veteran did not report any physical therapy or other treatment described; rather, he indicated being prescribed anti-inflammatory and other pain medication. Also, the Veteran himself denied recurrent back pain on his separation report of medical history, which would indicate to the Board that any back pain resulted from the in-service fall had subsided by the time that the Veteran was discharged from service. The Board also acknowledges the existence of private medical evidence submitted in support of the claims for service connection for lumbar spine and cervical spine disabilities. Specifically, in December 2011, the Veteran submitted an opinion from T.M., M.D., who opined that the Veteran's "neck and lower back problems are more likely than not caused by a fall that he had at some point in the past." However, as discussed in the Board's prior remand action, because Dr. T.M. has not related to the Veteran's problems to a specific incident in service but rather to a fall simply occurring in the past, his opinion cannot serve as the basis for a grant of service connection for either claimed disability. The Board points out that the Veteran was invited to seek a more detailed and tailored medical opinion from his private physician, but no such opinion was submitted in response to the Board's prior remand. The Board finds that similar statements provided by T.F., D.O. and Dr. N.E. in November 2011, who stated, respectively, that the Veteran's back symptoms "could have come from a fall," and that "[d]ue to his cervical and lower back problems it is more likely than not could have been caused by a fall," suffer from the problem as the statement from Dr. T.M. and are thus also not probative as to the issue at hand. Given the above, the Board simply finds no evidentiary basis upon which to establish service connection for a back disability or neck disability as directly related to service, as a crucial element of service connection has not persuasively been shown in connection with either claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). (service connection requires evidence of a nexus between the claimed in-service disease or injury and the present disability). As indicated, service connection also is not warranted by virtue of application of 38 C.F.R. § 3.303(b), to the extent applicable, as the evidence fails to persuasively demonstrate the existence of a chronic disease in service or noted in service, or of a continuity of symptomatology. Indeed, back or neck pain by itself without an accompanying diagnosis of a chronic disease or a suggestion that a chronic disease may have been present is not sufficient to satisfy the criteria for application of 38 C.F.R. 3.303 (b). Nor can it be said that arthritis manifested within a year of separation from service and the one-year presumption for arthritis under 38 C.F.R. §§ 3.307 and 3.309 is therefore not helpful. As a final point, the Board emphasizes that the Veteran has submitted no evidence, aside from his own expressed lay beliefs, that his currently diagnosed back or neck disability is attributable to his reported in-service fall from the truck. (Again, the Board emphasizes that the private clinicians' statements are not specific as to the noted in-service fall.) However, such assertions do not provide persuasive support for the Veteran's theory of entitlement. In this regard, the Board points out that the matter of the etiology of dysfunctions and disorders generally is a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Simply stated, the Veteran is not competent to address such a matter. He has not demonstrated that he has any education, training or expertise to discuss the etiology of such a disability and is, thus, a layperson in this regard. See 38 C.F.R. § 3.159(a)(1). While it is in error to categorically reject layperson nexus evidence as incompetent, the Board may consider the facts of a particular case to determine the layperson's competence. See Davidson, supra. One factor to consider is the complexity of the question to be determined. Jandreau, 492 F.3d at 1377. Here, the matter of the etiology of the Veteran's current back and neck disabilities is not a matter within the realm of knowledge of a layperson; rather, such is a complex question that requires education, training and expertise, none of which the Veteran is shown to possess. Id. As the Veteran's lay assertions in this regard have no probative value, he can neither support his claim, nor counter the probative opinion evidence of record, on the basis of lay assertions, alone. For all the foregoing reasons, the Board finds that the claims for service connection for lumbar spine and cervical spine disabilities must be denied. In reaching the conclusion to deny each claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012);); 38 C.F.R. § 3.102 (2017) ;Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990. ORDER Service connection for a lumbar spine disability is denied. Service connection for a cervical spine disability is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs