Citation Nr: 1816752 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 14-26 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a bilateral shoulder disability. 3. Entitlement to a rating in excess of 30 percent for inflammatory bowel disease (IBD). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD B. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1973 to August 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2012 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared before the undersigned at a November 2016 hearing. A transcript is of record. The issue of entitlement to a rating in excess of 30 percent for IBD addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The evidence of record indicates that the Veteran's cervical spine disability is not a result of his service or another service-connected disability. 2. The medical evidence of record indicates that the Veteran does not suffer from a bilateral shoulder disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a bilateral shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a veteran in developing information and evidence necessary to substantiate their claim. Under 38 U.S.C. § 5103(a), VA must notify a veteran of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence a veteran is expected to provide. VA has provided the Veteran with the requisite information as to the above claimed disabilities. As to the duty to assist, VA has made reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. See 38 U.S.C. § 5103A(a), (b) and (c). The RO has obtained the Veteran's service treatment records and VA medical records. The RO provided the Veteran with examinations and opinions in August 2004 and November 2012 to assess whether the Veteran suffered from a cervical spine disability and/or shoulder disability as a result of his service or a service connected disability. The Board finds these reports adequate to decide the Veteran's claims. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board concludes that no further assistance to the Veteran in developing the facts pertinent to these claims is required. II. Legal Criteria Generally, direct service connection may be established for a disability resulting from a disease, injury, or event, incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection, the following must be shown: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of a disability or symptoms of disability subject to lay observation. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or cause when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). III. Facts and Analysis The Veteran's January 1973 Report of Medical Examination upon entrance notes the Veteran's upper extremities, lower extremities, and spine and other musculoskeletal systems, as "normal." The Veteran's lower extremities (including his lower back musculature and lower spine) were rated as a "1," which indicates that he entered with a high level of medical fitness in those areas. The examination did not reveal issues with the Veteran's cervical spine. The Veteran's January 1973 Report of Medical History indicates that the Veteran denied recurrent back pain and arthritis. The Veteran's March 1974 Report of Medical Examination upon separation notes the Veteran's spine, and other musculoskeletal systems, as "normal." The Veteran's upper and lower extremities were described as "abnormal" due to "episodes of arthritis" due to IBD, affecting the Veteran's right hip, right elbow, and left wrist. VA provided the Veteran with an examination in August 2004 to assess whether the Veteran suffered from various joint disabilities as a result of his service or a service-connected disability. Accompanying imaging of the Veteran's cervical spine revealed "[l]oss of lordotic curvature in the upper cervical spine. Considerable hypertrophic and degenerative change. Mild scoliosis." The examiner did not opine as to the cause of the Veteran's cervical spine disability. Examination of the Veteran's shoulder revealed "[s]houlder twisting . . . to 75 degrees right and left with no pain." The examiner did not describe the Veteran as suffering from shoulder pain and did not diagnose a shoulder disability. A November 2010 VA treatment record indicates that the Veteran reported neck pain with radiation to his right and left arms, which had "been on going for 4 years." December 2010 imaging of the Veteran's spine revealed "[m]ultilevel degenerative changes with multilevel canal and neural foraminal stenosis[.]" VA treatment records indicate that the Veteran received ongoing treatment to address his cervical spine disability, including, according to a March 2012 record, medial branch nerve block treatment. The Veteran was provided a VA examination in November 2012 to again assess the nature and cause of his cervical spine disability, as well as the nature and cause of any bilateral shoulder disability. The Veteran was diagnosed with "[c]hronic cervical degenerative disc disease with bilateral cervical radiculopathy." The Veteran reported that he began to experience neck pain in or about "3-4 years" prior to the November 2012 examination, and described pain that "radiates to the bilateral shoulders." The examiner responsible for a corresponding report noted that the Veteran "denie[d] any separate joint issues of the shoulders, and all shoulder pain is part of the radiated pain from his neck. The right shoulder pain has been much improved since the cervical ablation, indicating that this pain is part of his cervical radiculopathy." The VA examiner opined that the Veteran's cervical spine disability was less likely than not caused by or related to the Veteran's service because the Veteran "states that the onset of neck pain was 3-4 years ago, over 30 years after discharge from service. The [V]eteran has normally progressive degenerative disease of the cervical spine." The examiner added that the Veteran's cervical spine disability was not caused by or aggravated by the Veteran's IBD because "[t]he only axial degenerative disease associated with inflam[m]atory bowel disease is ankylosing spondylitis. The [V]eteran's imaging has not supported the diagnosis of ankylosing spondylitis of the cervical spine. The [V]eteran's pattern of cervical spinal degenerative [disease] is the normally progression of degenerative disease. I know of no medical authority or peer reviewed medical literature which supports the contention that IBD can cause degenerative disease of the cervical spine, other than ankylosing spondylitis." A contemporaneous examination of the Veteran's shoulders revealed that the Veteran did not have a shoulder disability. The examiner explained that the Veteran "has no current diagnosis related to his right shoulder. His shoulder pain is radicular in nature and is caused by his cervical disease[.]" A July 2014 VA treatment record notes a diagnosis of cervicalgia, and an August 2015 VA treatment record described the Veteran as suffering from cervical spondylosis and chronic axial neck pain. During a November 2016 Board hearing, the Veteran testified that he experienced pain across the neck and shoulder area as a result of tripping and falling while handling equipment during his service. He also described carrying heavy equipment during prolonged marching exercises. The Veteran added that he treated his in-service neck and shoulder pain with what appears to have been an over-the-counter pain reliever. IV. Analysis The Board finds that service connection for a cervical spine disability is not warranted in this case. Though the evidence shows that the Veteran has a current cervical spine disability, the competent and probative evidence of record does not show that the Veteran's current cervical spine disability is related to his active service or his service-connected IBD disability. According to the record, the Veteran's cervical spine disability was first diagnosed in or about August 2004, decades following the Veteran's separation from service. The passage of many years between service and the objective documentation of a claimed disability, although not dispositive, 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). Moreover, the Veteran's 1974 Report of Medical Examination upon separation describes several ailments related to the Veteran's IBD, including what appears to have been inflammatory arthritis, but does not describe the Veteran as suffering from a cervical spine disability. As to the Veteran's contention that his cervical spine disability is the result of injuries incurred in service, while he is qualified to report observable symptoms, there is no evidence that he has the appropriate medical training and expertise to provide an opinion regarding the complex medical question of the cause of his current cervical spine disability. Accordingly, the Board must assign more probative value to the November 2012 VA examination. See Jandreau, 492 F.3d at 1377. Moreover, statements provided by the Veteran during the November 2016 hearing are inconsistent with statements provided to VA medical personnel, including statements provided in 2010 noting the onset of the Veteran's neck and shoulder pain. The Board does not dispute the diagnosis of a cervical spine disability in or about August 2004, but notes that the evidence of record reveals that the Veteran did not describe continuous neck and shoulder pain stemming from service prior to this diagnosis. The above mentioned inconsistencies compel the Board to conclude that the more recent statements made in the course of seeking VA benefits are not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record). To be clear, the Board is not questioning the Veteran's honesty or moral character. The Veteran is attempting to recollect events that transpired a long time ago and the passage of time, along with the inconsistencies noted above, compels the conclusion that the Veteran is not an accurate historian as to these particular statements. See Caluza, 7 Vet. App. at 510-11. Therefore the Board affords them little probative weight. Id. The opinion provided as part of the November 2012 VA examination report is persuasive and probative evidence against the Veteran's claim of service connection for a cervical spine disability. The findings contained in the November 2012 VA examination report, and statements provided by the Veteran for the purpose of seeking treatment, are more probative than the Veteran's later statements which opined that his cervical spine disability was the result of his service. As stated above, the evidence of record indicates that the Veteran did not have a cervical spine disability during his August 1974 Report of Medical Examination upon separation and, thus, compels the conclusion that the Veteran's cervical spine disability is not a result of his service. Because there is little basis in the record upon which to conclude that the Veteran's cervical spine disability is related to his military service, service connection for a cervical spine disability is not warranted. See 38 C.F.R. § 3.303. Additionally, there has been no showing that the Veteran developed arthritis affecting his cervical spine within one year of his separation from active service, which was in August 1974. Thus, the Veteran's claim of entitlement to service connection for a cervical spine disability must be denied on a presumed basis as well. See 38 C.F.R. § 3.307, 3.309. Given the above, the Board also concludes that service connection for a bilateral shoulder disability is not warranted in this case. The November 2012 VA examination report indicates that the Veteran does not suffer from a bilateral shoulder disability. The report also indicates that the Veteran's cervical spine disability causes pain that radiates into the Veteran's shoulders. Absent a present diagnosed disability affecting the Veteran's shoulders, the Board is not permitted to award service connection benefits. See Shedden, 381 F.3d at 1166-67. ORDER Service connection for a cervical spine disability is denied. Service connection for a bilateral shoulder disability is denied. REMAND Although the Board regrets the additional delay, further development is required prior to adjudication of the Veteran's claim for an increased disability rating for a service-connected IBD. Remand is necessary to obtain a new VA examination to assess the current severity of the Veteran's IBD. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a veteran for a medical examination where it deems an examination necessary to make a determination on the veteran's claim); Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary). The RO should also obtain any VA treatment records not already contained in the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any VA treatment records not already of record. 2. Schedule the Veteran for an examination with an appropriate VA clinician to determine the current nature and severity of the Veteran's IBD. The claims file, including a copy of this remand, must be made available to and be reviewed by the clinician. Any and all relevant studies, tests, and evaluations deemed necessary should be performed and the results reported. The evidence of record indicates that the Veteran has suffered from sacroiliitis and multiple joint pain as a result of his IBD. The above requested examination should discuss not only the severity of the Veteran's intestinal condition, but also the severity of any condition related to the Veteran's IBD (including any sacroiliitis and multiple joint pain attributable to this disability). 3. Readjudicate the claim on appeal. The RO should determine whether the rating applied to the Veteran's IBD contemplates his IBD symptoms, and whether the Veteran is entitled to separate ratings or an extraschedular rating for any symptoms not accounted for. If any benefit sought on appeal remains denied, then furnish the Veteran and his representative with a supplemental statement of the case and allow him an opportunity to respond. The Veteran has the right to submit additional evidence and argument on remanded matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). Remanded matters must be handled expeditiously. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs