Citation Nr: 21063362 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 10-42 853 DATE: October 14, 2021 ORDER Service connection for a cervical spine disability is denied. REMANDED Entitlement to an initial compensable rating for costochondritis is remanded. Entitlement to a rating in excess of 20 percent for lumbar retrolisthesis, myositis, and intervertebral disc syndrome (a lumbar spine disability) prior to February 7, 2019, and in excess of 40 percent thereafter is remanded. FINDING OF FACT The preponderance of the evidence weighs against a finding that the Veteran's cervical spine disability began during or is etiologically related to his active duty service, against a finding that degenerative changes manifested within one year of separation from service, and against a finding that his cervical spine disability is secondary to any service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2003 to January 2004 with additional service as a member of the Army National Guard for the Commonwealth of Puerto Rico. These claims are on appeal to the Board of Veterans' Appeals (Board) from an October 2009 rating decision. Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). Service Connection Claim Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after 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). In general, in order to prevail on the issue of service connection the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310(a). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). 1. Service connection for a cervical spine disability The Veteran is claiming service connection is warranted for a cervical spine disability. He has indicated he was treated for a cervical strain at Fort Bragg and Diego Garcia Medical Facility. See July 2009 Claim. The Veteran has claimed he injured his cervical spine the same time as he injured his lumbar spine disability in May 2003 when he slipped on stairs during active duty. See September 2017 VA cervical spine examination. Service treatment records reflect the Veteran slipped on stairs in May 2003 and injured his low back. Lumbar spine x-rays were normal, and the examiner assessed a lumbar strain and sprain. He attended three sessions of physical therapy for his low back. A December 2003 medical assessment reflects the Veteran had ongoing low back pain. None of these records reflect the Veteran complained of cervical spine pain or symptoms. At July 2004 and April 2005 treatment appointments, the Veteran complained of low back symptoms; he did not mention any neck symptoms. At a December 2008 treatment appointment, the Veteran again endorsed complaints of low back pain and indicated he had experienced these symptoms in the past. He indicated he had chronic low back pain since 2003 after felling downstairs while on active duty. A lumbar spine x-ray revealed straightening of the spine and was otherwise normal. Again, there is no indication the Veteran experienced neck symptoms at this appointment. At a February 2009 primary care appointment, the Veteran indicated he did not have any complaints. In March 2010 and August 2010, the Veteran again sought treatment for low back pain but did not report any difficulties with his neck. In February 2011, the Veteran sought treatment for his back and neck; he indicated he experienced chronic neck and low back pain for the past eight years. Imaging of the cervical spine revealed minimal lower cervical spondylosis and minimal anterior wedging of C-5 which may be due to compression trauma, age undetermined. X-rays taken in 2012 demonstrate revealed the presence of degenerative changes as the underlying etiology of pain. At an August 2017 examination, the examiner opined it was less likely than not that the Veteran's cervical spine disability began during or was etiologically related to his active duty service, reasoning that there was no evidence in the service treatment records that would support the presence of any cervical symptoms during service. The examiner also opined it was less likely than not that the Veteran's cervical spine disability was caused by any of his service-connected disabilities, reasoning that the most comprehensive medical literature on this topic found no evidence for injury on the contralateral side of the body or above and below the initial injury. Finally, the examiner opined it was less likely than not that the Veteran's cervical spine disability was aggravated reasoning that the most comprehensive medical literature on this topic found no evidence for injury on the contralateral side of the body or above and below the initial injury. Based on the foregoing, the Board finds service connection for a cervical spine disability must be denied. Significantly, the Veteran's first complaints in the record regarding his neck are in 2011, more than seven years following his release from active duty service, which weighs heavily against his claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that the passage of many years between discharge from active service and the continuity of symptomatology or medical documentation of a claimed disability are factors that tend to weigh against a claim for service connection). Further, the Board finds that the Veteran's statements to medical providers have been inconsistent, and therefore, lack credibility. In this regard, the Board has the authority to assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not afforded to each piece of evidence contained in the record, and every item of evidence does not hold the same probative value. Gilbert v. Derwinski1 Vet. App. 49, 56 (1990). Further, the Board is permitted to weigh a claimant's lay statements against the absence of contemporary medical evidence. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); Buchanan v. Nicholson, 451 F.3d 1331. 36-37 (Fed. Cir. 2006). However, it must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The absence of a record of an event which would ordinarily have been recorded gives rise to a legitimate negative inference that the event did not occur. A.Z. v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013). The Board concludes that if the Veteran had actually injured his cervical spine during active duty, and experienced symptoms since then, that he would have informed providers of such at the time of treatment. See A.Z., 731 F.3d at 1315; see also Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (holding that a lack of notation where it would be expected, to include during treatment or examination, is noteworthy). The Board bases these findings on the fact that a Veteran's statements (or lack thereof) for treatment purposes to medical providers are of heightened reliability, because a declarant has a strong motive to tell the truth in order to receive proper diagnosis and treatment; therefore, they are more probative than subsequent statements made for compensation purposes. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). As noted above, only x-rays of the lumbar spine were taken at the time of the May 2003 slip and fall, and the Veteran did not voice any cervical spine complaints during active duty. Had the Veteran complained of neck pain at the time of the May 2003 incident, the Board finds that providers would have documented the Veteran's complaints in the record and that x-rays of the cervical spine may have been taken. See Buczynski, 24 Vet. App. at 224. In July 2004 and April 2005, the Veteran sought treatment for low back symptoms but made no mention of any neck symptoms. Similarly, at a December 2008 treatment appointment, the Veteran again endorsed complaints of low back pain and indicated he had experienced these symptoms in the past. He indicated he had chronic low back pain since 2003 after falling downstairs while on active duty; he made no mention of any cervical spine symptoms the examiner only performed lumbar spine x-rays. The first mention in the record that the Veteran injured his cervical spine during the May 2003 fall was at a February 2011 treatment appointment, in which he indicated he experienced neck pain since the fall. Thus, the Board finds the Veteran's statements that he injured his neck during service and experienced symptoms since then are inconsistent, and therefore, not credible. Thus, the August 2017 opinion on direct service connection, which bases the negative opinion on a lack of treatment in the record is probative, despite the Veteran's assertions he injured his neck and experienced symptoms since then. While the Board acknowledges that examiners must take into account a claimant's lay statements, here, the Board has found the Veteran's statements regarding the claimed injury and symptoms to be not credible, and therefore, have very little probative value. Further, the August 2017 opinions regarding secondary service connection contain a rationale for the conclusion reached. Based on the foregoing, the Board finds service connection must be denied. The preponderance of the evidence weighs against a finding that the Veteran's current cervical spine disability began during or is etiologically related to service (or that degenerative changes manifested within one year of separation from active duty) and also weighs against a finding his cervical spine disability is secondary to any of his service-connected disabilities. To the extent that private medical records indicate the Veteran injured his neck in 2003 during the same fall in which he injured his back, the Board finds this does not support the Veteran's claim. See, e.g., June 2014 private treatment note. Significantly, the bare transcription of lay statements, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Rather, the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [an] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that general conclusions based on history furnished by appellant and unsupported by clinical evidence are inadequate). Based on the foregoing, service connection for a cervical spine disability must be denied. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Substantial Compliance with Prior Remand Directives This claim was first before the Board in April 2015 when it was remanded for additional development. Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to verify the Veteran's periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) and obtain the Veteran's private treatment records as well as any records of medical treatment during any periods of ACDUTRA or INACDUTRA. The Veteran's medical records are associated with the evidence of record, yet the AOJ did not attempt to verify any periods of ACDUTRA or INACDUTRA. However, the Board finds that the AOJ's failure to do so constitutes harmless error and that to remand for strict compliance with its prior remand directives would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). This is so because the Veteran has claimed he injured his neck during his active duty service in May 2003 and not during any period of ACDUTRA or INACDUTRA. In the context of Reserve or National Guard service, service connection may only be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 C.F.R. § 3.6. The Veteran has not claimed he experienced any disease or injuries during ACDUTRA or INACDUTRA service that would warrant consideration here; moreover, the service treatment records do not document any diseases or injuries which suggest his cervical spine disability may be related to his National Guard service. Notably, the Board also directed the AOJ in its April 2015 remand directives to afford the Veteran with examinations with respect to his claims, and these were performed in August 2017. Thus, the Board finds that the AOJ has substantially complied with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that only substantial compliance, not strict compliance, is required with the Board's prior remand directives). In November 2019, the Board again remanded this claim for issuance of a Supplemental Statement of the Case (SSOC) to consider additional evidence added since the last SSOC, which was accomplished in March 2021. Based on the foregoing, the Board finds that with respect to the issues decided herein, there has been substantial compliance with its prior remand directives. See Stegall, 11 Vet. App. at 271. Accordingly, this claim is properly before the Board for adjudication. Additional Consideration The Board acknowledges that the Veteran's representative requested copies of the August 2020 examination reports as well as "copies of engagement letters and C&P exam inquiries made to the examiners and the examiners' curricula vitorum, to include information related to their education, experience, training, and qualifications." See April 2021 Correspondence. The August 2020 examination reports were provided to the representative in August 2021. With regard to the representative's request for the curricula vitae of the examiners, copies of examination inquiries and engagement letters, the Board finds this request does not fall under VA's duty to assist. Moreover, the representative has not made any specific or implied claims that any of the examiners were unqualified or not competent to perform examinations for compensation purposes; the Veteran has not made any such assertions either. Thus, the Board finds no harm to the Veteran or the merits of his claims in not providing his representative with this requested information which, as previously noted, does not fall under VA's duty to assist. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for costochondritis is remanded. 2. Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability prior to February 7, 2019, and a rating in excess of 40 percent thereafter is remanded. The Veteran is claiming higher ratings are warranted for his costochondritis and lumbar spine disability. The Veteran's representative has argued that extraschedular consideration is warranted because these disabilities cause marked interference with employment. See February 2011 Statement. The Veteran has also submitted paperwork from his employer showing his absences from work as well as documentation of leave taken under the Family Medical and Leave Act (FMLA). See, e.g., Documents Received in February 2011, September 2015, January 2016, February 2016, September 2018, and January 2019. The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). Here, the Board finds the evidence suggests that extraschedular ratings may be warranted, and therefore, these claims should be referred to the VA Director of the Compensation and Pension Service for consideration under 38 C.F.R. § 3.321(b)(1). While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the electronic claims file. (CONTINUED ON NEXT PAGE) 2. Following completion of step 1, refer the Veteran's claims to the VA Director of the Compensation and Pension Service for consideration of extraschedular ratings. 38 C.F.R. § 3.321(b)(1). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.