Citation Nr: 21062903
Decision Date: 10/12/21	Archive Date: 10/12/21

DOCKET NO. 20-28 667
DATE: October 12, 2021

ISSUES

1. Entitlement to service connection for degenerative arthritis of the cervical spine.

2. Entitlement to service connection for an upper back disability.

3. Entitlement to a disability rating in excess of 30 percent for service-connected chronic glomerulonephritis with mild hypertension.

4. Entitlement to service connection for arthritis of the left hand.

5. Entitlement to service connection for arthritis of the right hand.

6. Entitlement to service connection for arthritis of the left shoulder.

7. Entitlement to service connection for arthritis of the right shoulder.

8. Entitlement to service connection for arthritis of the left knee.

9. Entitlement to service connection for chronic obstructive pulmonary disease (COPD).

10. Entitlement to service connection for gout.

11. Entitlement to service connection for sleep apnea.

12. Entitlement to service connection for diabetes mellitus, type II.

13. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU).

ORDER

Entitlement to service connection for degenerative arthritis of the cervical spine is denied.

Entitlement to service connection for an upper back disability is denied.

REMANDED

Entitlement to a disability rating in excess of 30 percent for service-connected chronic glomerulonephritis with mild hypertension is remanded.

Entitlement to service connection for arthritis of the left hand is remanded.

Entitlement to service connection for arthritis of the right hand is remanded.

Entitlement to service connection for arthritis of the left shoulder is remanded.

Entitlement to service connection for arthritis of the right shoulder is remanded.

Entitlement to service connection for arthritis of the left knee is remanded.

Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded.

Entitlement to service connection for gout is remanded.

Entitlement to service connection for sleep apnea is remanded.

Entitlement to service connection for diabetes mellitus, type II is remanded.

Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran's degenerative arthritis of the cervical spine, which was not diagnosed until many years after service, is not shown to be causally or etiologically related to any disease, injury, or incident in service.

2. The Veteran's upper back disability is not shown to be causally or etiologically related to any disease, injury, or incident in service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for degenerative arthritis of the cervical spine have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.307, 3.309.

2. The criteria for entitlement to service connection for an upper back disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Air Force from August 195 to March 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal.

By way of background, the Veteran was denied entitlement to service connection for an upper back disability, degenerative arthritis of the cervical spine (claimed as neck disability), and supraventricular arrhythmia (also claimed as heart disease and heart murmur) in the January 2019 rating decision. The Veteran filed a timely Notice of Disagreement (NOD) in January 2020.

In a subsequent rating decision from June 2020, the Veteran was granted service connection for supraventricular arrythmia (atrial fibrillation) with a 60 percent disability rating, effective August 22, 2018. The Veteran, through his Attorney, filed a VA Form 10182 NOD with that June 2020 rating decision, which removed the Veteran's claim from the Legacy system and placed it within the Appeals Modernization Act (AMA) system. As such, that issue is not currently on appeal with the above-listed Legacy claims and will not be considered herein.

Following the January 2020 Legacy NOD, the Veteran was issued a statement of the case (SOC) in June 2020. The Veteran's Attorney filed a timely VA Form 9 in July 2020 and requested a Board Hearing before a Veterans Law Judge.

The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in May 2021 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2).

VA's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). The RO associated the Veteran's military personnel records, private and VA treatment records, and lay statements with the claims file. No other relevant and available records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records.

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Entitlement to service connection for degenerative arthritis of the cervical spine; and service connection for an upper back disability.

The Veteran has claimed that his degenerative arthritis of the cervical spine (claimed as a neck disability) and his upper back disability are each due to his active-duty service. 

To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a).

For certain chronic diseases, including degenerative arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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).

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

In deciding the Veteran's claim, 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Turning to the criteria for entitlement to service connection, the Veteran's claims file contains a VA examination from January 2019. During the exam, the examiner confirmed that the Veteran had current diagnoses of posterior spinal fusion of C3 through C6 (of the cervical spine), and "scattered degenerative spurs consistent with degenerative disc disease." Further VAMC records indicate that the Veteran had a cervical spine surgery in 2018.

As such, the Board has confirmed that the Veteran has current diagnoses for both claimed disabilities, and he has met the first criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a).

Turning to the second criteria, the Veteran was given a hearing before the undersigned in May 2021. During the hearing, the Veteran testified that he was a "food specialist, a cook," and that this military occupational specialty (MOS) involved him "lifting cases of canned goods, cases of ham, cases of turkey, a lot of heavy lifting." The Veteran testified that these cases of food were upwards of forty pounds each, and he lifted them "unassisted ... pretty much on a daily basis." The Board also notes that the Veteran testified that he cannot "put a finger on the exact date when [his] pain started." He also testified that he does not "remember any particular injury," during service, just that the wear and tear of his MOS may have strained his neck and back.

The Veteran is competent to report that which he experienced, such as the duties of his MOS. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).

The Veteran's service treatment records contain no indication of any in-service injury to the neck or upper back, nor complaints of pain to those areas. The Veteran's separation exam is also silent for any complaints of neck or back injuries. Having said that, the Veteran's DD-214 and his military personnel records do confirm that he served as a cook. Therefore, affording the Veteran the benefit of the doubt, he has arguably met the second criteria for entitlement to service connection, as his MOS of being a cook likely involved him moving heavy cans and cases of food on a daily basis. 38 C.F.R. § § 3.303(a).

Turning to the final criteria, the Board notes that the Veteran's claims file contains a rheumatology medical note from October 1992. The Veteran was seen for complaints of "episodic occurrences of podagra involving his right 1st toe." During the exam, the Veteran "denied other musculoskeletal pains, specifically to include neck or upper back pain. Later clinical observation "of the musculoskeletal system revealed [full range of motion] in the cervical spine without pain."

As noted above, the Veteran's claims file contains a VA examination from January 2019. The Veteran was seen in person, and the Veteran's claims file was reviewed. There is further evidence that the examiner noted the lay statements of the Veteran. Each of the Veteran's diagnoses were confirmed. Following clinical evaluation, including measuring the Veteran's range of motion for his cervical spine, the following opinion was included:

The Veteran served in the military 1965-1968. He was discharged medically due to renal disease. There is no mention of a neck condition on his enlistment exam, his MEB exam or on a revelation in 1969. He was evaluated by Rheumatology in 1992 and his neck was normal to exam at that time. He did not start [complaints of] neck pain until 2016. [Veteran] was recommended [for treatment] but his neck improved and he did not go. His neck became acutely worse in 2018. MRI March 2018 revealed severe [degenerative disc disease] with stenosis of the canal. He underwent a decompressive laminectomy with spinal fusion. There is no indication of neck condition while in service and his current neck condition, 50 years later is less likely than not caused by his military service.

As such, a negative etiological opinion was rendered. The examiner also provided a similar opinion for the Veteran's upper back disability, stating that it was less likely than not due to his active-duty service. They also noted that 

there was no [complaint of] back pain on his enlistment exam, MEB exam or follow-up exam in 1969. On current exam his x-rays and exam are normal. The current [complaint of] upper back pain is less likely than not caused by his military service.

Thus, negative etiological opinions were provided for each disability.

The Veteran's claims file also contains a private medical opinion from Dr. F.G. from August 2021. The Veteran was not seen in person, and there is no indication that his lay statements, nor testimony were considered. The private opinion noted the MOS of the Veteran, and that he "repeatedly lifted heavy loads of canned goods." The private examiner frequently listed the Veteran's upper back disability as actually being a "low back condition," which he has not claimed entitlement to service connection for. The private examiner then provided a positive nexus statement, writing that "there is a causal nexus to [the] Veteran's military service and his physical activities during military service." Later portions of that same report include opinions for other disabilities, including the Veteran's service-connected cardiac arrhythmia, along "with hypertension, fatigue, shortness of breath and dizziness." Despite not seeing the Veteran in person, nor conducting clinical testing, the examiner also provided an estimate for what they believed the Veteran's current disability rating should be.

There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The same cannot be said however for the private opinion of Dr. F.G. While there is nothing to doubt the competence or credibility of the private examiner, there is no indication that the Veteran was even contacted, much less seen in person. There is no indication that the Veteran's lay statements, nor testimony were directly considered. The Board also notes that the opinion provided clinical evaluations, despite the Veteran not being present. Finally, the private opinion evaluated other disabilities which are not currently before the Board. Those other disabilities are mixed within the opinion provided for the degenerative arthritis of the cervical spine and the upper back disability, which the private examiner, at times, wrongly refers to as a "lower back" disability. As such, the Board affords the private opinion from Dr. F.G. no probative weight as to the etiology of the Veteran's disabilities. See, Nieves-Rodriguez, Id.

In consideration of the above, the Board finds that the Veteran's degenerative arthritis of the cervical spine and his upper back disability are not due to his active-duty service. Both of the Veteran's disabilities have been confirmed by the available medical evidence. During the Veteran's hearing, he testified that there was no single in-service injury or event, which would normally bar him from meeting the second criteria for entitlement to service connection. The Board has however afforded the Veteran the benefit of the doubt, and considering his confirmed MOS of a cook, it is reasonable to presume that he regularly lifted heavy cans and containers of food. The Board also has a negative etiological opinion for each disability from the January 2019 VA examiner, whereby the Veteran was seen in person, and his lay statements and medical history were considered. That opinion has been afforded significant probative weight by the Board. The private opinion from Dr. F.G. has not been afforded probative weight, for the aforementioned reasons. The claims file contains no further positive etiological opinions. Finally, the Board notes that the first evidence of a complaint of neck pain occurred around 2016, with his cervical surgery occurring in 2018, which is approximately fifty years following the Veteran's separation from service. This significant gap in treatment and complaint history was furthered by the rheumatology note from October 1992, whereby the Veteran exhibited full range of motion to his upper spine and neck without any complaints, nor pain. And while this significant time gap is not wholly dispositive of the Veteran's claim, the passage of many years between discharge and medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See further Maxon v. Grober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

In addition, with respect to service connection on a presumptive basis, there is no indication that degenerative arthritis of the cervical spine was diagnosed in service, nor was it diagnosed within the year following service. Again, the first evidence of arthritis within the Veteran's claims file is from 2016, when he began to complain about upper back and neck pain. A cervical surgery occurred in 2018, which is approximately five decades after the Veteran was separated from active duty. Likewise, continuity of symptomatology can also therefore not be established. As such, the Veteran has not met the third and final criteria for entitlement to service connection under the presumptive theory for chronic diseases. 38 C.F.R. §§ 3.303, 3.307, 3.309.

Finally, the Board recognizes the Appellate Brief submitted by the Veteran's Attorney in September 2021. In short, the Brief argued that the opinions of Dr. F.G. "must be accepted in relevant parts over" the VA examiners, as they are more complete when discussing the Veteran's MOS and in-service cook duties of lifting heavy cans and containers. The Board echoes its discussion from above however, finding that while there was nothing to discount the competence or credibility of the private examiner, the opinion provided combined multiple etiological opinions into one report, regularly used the wrong diagnosis of a "low back disability," and does not appear to have had any contact with the Veteran, in person or otherwise. Furthermore, the Board has no duty whereby it "must" accept one opinion over the other; the Board assigns probative weight to each opinion given before rendering a Decision. And as noted in the Introduction, the other arguments of the Appellate Brief related to entitlement to TDIU are not before the Board at this time.

For the foregoing reasons, the Board concludes that the claims of entitlement to service connection for degenerative arthritis of the cervical spine, and for an upper back disability must both be denied. The preponderance of the evidence is against the claims and the doctrine of reasonable doubt is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

REASONS FOR REMAND

The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated.

1. Entitlement to a disability rating in excess of 30 percent for service-connected chronic glomerulonephritis with mild hypertension; service connection for arthritis of the bilateral hands; service connection for arthritis of the bilateral shoulders; service connection for arthritis of the left knee; service connection for chronic obstructive pulmonary disease (COPD); service connection for gout; service connection for sleep apnea; service connection for diabetes mellitus, type II are each remanded.

A rating decision dated December 2018 increased the Veteran's disability rating for his service-connected chronic glomerulonephritis with mild hypertension to 30 percent, effective August 22, 2018. That same rating decision denied entitlement to service connection for arthritis of the bilateral hands, arthritis of the bilateral shoulders, arthritis of the left knee, chronic obstructive pulmonary disease (COPD), gout, sleep apnea, and diabetes mellitus, type II.

In response, the Veteran through his Attorney, filed an NOD date signed July 2019. The Veteran and his Attorney have requested De Novo review, as well as a formal process with a Decision Review Officer. A clarification letter sent June 2021 from the Veteran's Attorney reiterated that they are appealing each issue identified by the December 2018 rating decision.

As the RO has not yet issued a statement of the case (SOC) addressing the issues, the Board does not have jurisdiction over the matters. Thus, the Board must remand such issues for the RO to provide an SOC and to allow the Veteran and his Attorney an opportunity to perfect an appeal. Manlincon v. West, 12 Vet. App. 238 (1999).

2. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU).

The Veteran has argued that his service-connected disabilities have caused him to be unable to maintain employment. The Veteran's Attorney expressly raised the argument for entitlement to TDIU in an Appellate Brief from September 2021.

When a Veteran files a claim for an increased rating, they are presumed to be seeking the maximum benefit under any applicable theory, including total disability rating based on individual unemployability (TDIU). See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Id. at 453-54. In this case, the Veteran, through his Attorney, asserts that he is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities, to include his service-connected chronic glomerulonephritis with mild hypertension. Therefore, the issue of entitlement to TDIU has been raised and is part and parcel to the increased rating claim that is being remanded for the purpose of the issuance of a SOC as noted above. Therefore, the claim for entitlement to TDIU must be also remanded for issuance of a SOC per Manlincon.

The matters are REMANDED for the following action:

For the issues of entitlement to a disability rating in excess of 30 percent for service-connected chronic glomerulonephritis with mild hypertension, service connection for arthritis of the bilateral hands, service connection for arthritis of the bilateral shoulders, service connection for arthritis of the left knee, service connection for chronic obstructive pulmonary disease (COPD), service connection for gout, service connection for sleep apnea, service connection for diabetes mellitus, type II, and entitlement to a TDIU, evaluate the evidence of record, and issue a statement of the case (SOC) to the Veteran and the Veteran's Attorney. The Veteran is advised that a timely Substantive Appeal will be necessary to perfect an appeal to the Board concerning this matter. 38 C.F.R. § 20.302 (b).

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Mulrain, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.