Citation Nr: 1754200	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  10-38 794	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for a lumbosacral spine disability.

2.  Entitlement to service connection for a cervical spine disability.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The Veteran had active service from June 1977 to September 1983.  He also had additional service in the U.S. Army Reserves from November 1976 to June 1977 and from 1984 to 2005.

This case has a long and complex procedural history.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which determined that, as new and material evidence had not been received, a previously denied claim of service connection for a lumbosacral spine disability (which the RO characterized as degenerative disc disease lumbar spine with spondylolisthesis of L4-5 and herniated nucleus pulposus (HNP) at L4-5 (claimed as low back condition)), would not be reopened.  The RO also denied, in pertinent part, the Veteran's claims of service connection for a cervical spine disability (which was characterized as cervical spondylosis, status post-op cervical fusion X 2 (claimed as neck injury)) and entitlement to a TDIU.  The Veteran disagreed with this decision in September 2009.  He perfected a timely appeal in September 2010 and requested a videoconference Board hearing.  This hearing was held at the RO before the undersigned Acting Veterans Law Judge in June 2012.  A copy of the hearing transcript has been added to the record.

In December 2012, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development.  The Board noted initially in its December 2012 remand that an official service department record relevant to the Veteran's lumbar spine disability which existed at the time of the most recent final denial of the Veteran's claim of service connection for a lumbosacral spine disability in a June 2006 Board decision had not been associated with the claims file until after June 2006.  The Board also noted that this issue would be reviewed de novo and not on the basis of new and material evidence.  See Board remand dated December 4, 2012, at pp. 2.  The Board also recharacterized the other issues on appeal as stated on the title page.

In April 2014, the Board again remanded this matter to the AOJ for additional development.  The Board found that a March 2013 VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) and VA neck (cervical spine) conditions DBQ were not adequate for VA purposes.  See Board remand dated April 14, 2014, at pp. 3-4.  The Board directed that the AOJ obtain an addendum opinion concerning the contended etiological relationships between the Veteran's cervical spine disability, lumbosacral spine disability, and active service.  The Board requested that the examiner who provided this addendum opinion address specific record evidence in his or her opinion.  Id., at pp. 4-6.

In February 2015, the Board again remanded this matter to the AOJ for additional development.  The Board found that a June 2014 addendum opinion, obtained in response to the prior remand issued in April 2014, was inadequate for VA purposes.  See Board remand dated February 6, 2015, at pp. 4-5.  The Board directed that, on remand, the AOJ make arrangements for a complete file review and opinions from a specialist in orthopedic medicine concerning the contended etiological relationships between the Veteran's cervical spine disability, lumbosacral spine disability, and active service.  The Board again requested that the specialist who provided these opinions address specific record evidence in his or her opinions.  Id., at pp. 6-8.

In December 2015, the Board again remanded this matter to the AOJ for additional development.  The Board noted initially that the AOJ had not yet complied with the terms of the prior remand issued in February 2015.  Specifically, the Board found that, although the AOJ cited to a report dated on April 9, 2015, when it readjudicated the Veteran's claims in an April 2015 Supplemental Statement of the Case (SSOC), this report was a duplicate copy of a report previously of record and dated in May 2014.  See Board remand dated December 8, 2015, at pp. 4.  The Board concluded that this appeal should be remanded again so that the AOJ could obtain a copy of the actual report completed on April 9, 2015, and associate it with the claims file.  Id., at pp. 4-5.

Most recently, the Board remanded this appeal in November 2016 to the AOJ for compliance with the Board's previous remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2012).

The Board notes that, while the currently appealed claims were at the AOJ following the most recent remand in November 2016, the Veteran initiated an appeal with respect to the issue of waiver of overpayment of VA disability compensation in the amount of $26569.02 based on a change in the status of his dependents.  It appears that the AOJ continues to work on this issue.  Because this issue has not yet been certified for appellate review by the AOJ, it is not before the Board at this time.

As is explained below in greater detail, the issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED again to the AOJ.  VA will notify the Veteran if further action is required on his part.


FINDING OF FACT

The record evidence shows that the Veteran's current lumbosacral spine disability and cervical spine disability are not related to active service.




(CONTINUED ON THE NEXT PAGE)
CONCLUSIONS OF LAW

1.  A lumbosacral spine disability was not incurred in or aggravated by active service nor may arthritis of the lumbosacral spine be presumed to have been incurred in service.  38 U.S.C. § 1110, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).

2.  A cervical spine disability was not incurred in or aggravated by active service nor may arthritis of the cervical spine be presumed to have been incurred in service.  38 U.S.C. § 1110, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran contends that he incurred disabilities of the lumbosacral spine and of the cervical spine during active service.  He specifically contends that he injured his lumbosacral spine and cervical spine while carrying boxes during active service and when a heavy box fell on his back and neck in service.

Factual Background and Analysis

The Board finds that the preponderance of the evidence is against granting the Veteran's claims of service connection for a lumbosacral spine disability and for a cervical spine disability.  As noted above, the Veteran essentially contends that he injured his back and neck during active service and experienced continuous lumbosacral spine and cervical spine disability since his service separation.  The record evidence does not support his assertions regarding an etiological link between his current lumbosacral spine disability or cervical spine disability and active service.  It suggests instead that, although the Veteran currently experiences lumbosacral spine and cervical spine disability, neither of these disabilities is related to active service.  

Looking to the service records, the Board notes initially that the Veteran's available service treatment records show that clinical evaluation of the back and neck was normal at his enlistment physical examination in November 1976 prior to his entry on to active service in June 1977.  On outpatient treatment in June 1979, the Veteran complained of neck pain for one week.  Objective examination showed a reasonable amount of movement and range in the neck with only "slight" pain centered on the entire back of the neck and radiating to the upper back muscles.  The diagnosis was pulled muscle.  In July 1979, the Veteran complained of back pain which had lasted for 1 year.  Objective examination showed no pain, discoloration, edema, or poor dislocation.  X-rays were negative.  On a "Back and Hip Evaluation" dated on January 6, 1981, the Veteran complained of low back pain secondary to lifting.  His low back pain was sharp and had moved to the cervical area with occasional radiation down his arms to his fingers.  He reported that his low back pain had started 3 weeks earlier.  He injured his back 2 years earlier playing basketball.  Objective examination showed an active range of motion within normal limits with "all motions hurt," a guarded gait and "head motions," a passive range of motion within normal limits, forward head posture, slight spasm in the bilateral cervical paravertebral muscles, no scoliosis, slight lordosis, tenderness over the upper trapezius muscles bilaterally, motor strength within normal limits, and intact sensation.  The assessment was bilateral upper trapezius spasm.  The Veteran was prescribed a course of outpatient physical therapy and returned to duty.  On outpatient physical therapy on January 12, 1981, the Veteran reported no change in his symptoms and also had pain in the lower back area.  Objective examination showed active range of motion within normal limits, no spasm, tenderness over the spinous process from L2-S1, and negative straight leg raising.  The assessment was mild facet syndrome.  Significantly, nothing relevant was noted on clinical evaluation of the Veteran at a periodic physical examination in February 1982.  The Veteran also declined to undergo a separation physical examination in August 1983.

The post-service evidence includes, for example, a private magnetic resonance imaging (MRI) scan of the cervical spine taken in March 1999 showed degenerative disc disease.  Similarly, a private MRI of the Veteran's lumbosacral spine taken in August 2001 showed degenerative disc disease.  A subsequent lumbosacral spine MRI taken in September 2002 showed "a very small focal central herniated nucleus pulposus" in the Veteran's lumbosacral spine.

On VA spine examination in May 2005, the Veteran's complaints included intermittent low back pain which had been severe "for the last couple of years."  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  The Veteran was unable to walk very far or sit for very long without low back pain.  His low back pain "occasionally radiates up the spine."  He reported that his back got stiffer and weaker from repetitive use.  Physical examination showed mild paraspinous muscle tenderness and a normal gait.  Range of motion testing showed forward flexion "limited by pain to 85 degrees."  There was no change in range of motion on repetitive testing.  The diagnosis was herniated nucleus pulposus (HNP) at L4-5 with L4-5 spondylolisthesis and degenerative disc disease at L5-S1.

MRI scans of the Veteran's lumbosacral spine taken in May 2003, February 2004, and in November 2005 all were essentially unchanged from September 2002.

On VA spine examination in June 2009, the Veteran's complaints included worsening constant low back pain which he rated as 9/10 on a pain scale and constant neck pain which he rated as 10/10 on a pain scale (or the worst imaginable pain).  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  The Veteran was unable to do any prolonged sitting, standing, walking long distances, running, heavy lifting, or bending due to his low back pain.  A history of cervical spine surgery and multiple lumbosacral spine MRIs was noted.  The Veteran had trouble turning his head while driving due to his neck pain.  Physical examination of the cervical spine showed "some tenderness over the posterior cervical area," equal deep tendon reflexes, and no loss of sensation.  Range of motion testing of the cervical spine showed forward flexion "limited by pain to 40 degrees."  There was no additional limitation of motion on repetitive testing.  Physical examination of the lumbosacral spine showed mild tenderness to palpation, normal deep tendon reflexes, and no loss of sensation.  Range of motion testing of the lumbosacral spine showed forward flexion "limited by pain to 75 degrees."  There was no additional limitation of motion on repetitive testing.  The diagnoses were degenerative disc disease of the lumbar spine with spondylolisthesis of L4-5 and HNP at L4-5 and cervical spondylosis, status-post cervical fusion times two.

A private MRI scan of the Veteran's cervical spine taken in February 2012 showed multi-level degenerative changes.  A private MRI scan of the Veteran's lumbosacral spine taken in May 2012 showed prominent posterior disc herniation at L5-S1

Because the Board previously found the March 2013 VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) to be inadequate for VA adjudication purposes in the April 2014 remand, the findings from that examination report will not be repeated here and were not relied upon in adjudicating the Veteran's currently appealed claims.

VA MRI scan of the Veteran's cervical spine taken in September 2013 showed myelomalacia and probable cord edema at C4-5 secondary to a broad-based disk osteophyte complex with central disk protrusion.

Because the Board previously found the May 2014 VA clinician's opinion to be inadequate for VA adjudication purposes in the February 2015 remand, this opinion will not be repeated here and was not relied upon in adjudicating the Veteran's currently appealed claims.

A private MRI scan of the Veteran's cervical spine taken in May 2014 showed status-post surgical changes at C3-C7, degenerative changes at C3-4, a central soft protrusion at C4-5, and mixed biforaminal protrusions at C7-11 and associated facet hypertrophy.  The Veteran had cervical spine surgery (spinal fusion) in September 2014 at a private hospital.  A private MRI scan of the Veteran's lumbosacral spine taken in January 2015 showed grade 1 anterolisthesis at L4-5 and broad-based disc displacement at L5-S1 with spina bifida occulta.  A private computerized tomography (CT) scan of the Veteran's cervical spine taken in August 2015 showed moderate cervical kyphosis, prior spinal fusion surgery, and fractures of the surgical screws at C6.  The Veteran had cervical spine surgery in September 2015 to repair the failed surgical hardware (fractured surgical screws).

In a January 2017 opinion, a VA clinician opined that a review of the Veteran's medical records showed that he had several back strains in active service but they did not match up cumulatively with the Veteran's later spinal problems beginning in approximately 2005-2006.  This clinician concluded that, since the cumulative in-service spine problems "or even one isolated event" in service did not match up with the Veteran's current back disability, it was less likely than not that this disability was related to active service.  This clinician noted that the Veteran's post-service spinal problems (or events) "do provide better evidence of an association" to the current back disability.

In a separate opinion also dated in January 2017, a VA clinician opined that, although the Veteran was seen for neck or cervical strains in his teens and early 20s, these incidents "do not match up well with being [the] nexus or causation of cervical issues that required fusion at 2 levels in 1999" many years after the Veteran's service separation.  This clinician noted that the Veteran "had other trauma after [service] exit far more likely to result in" his cervical spine degenerative disc disease "and [the] need for fusion."  Thus, this clinician opined that it was less likely than not that the Veteran's current cervical spine (or neck) disability was related to active service.  The rationale for this opinion was that the Veteran's in-service events do not cumulatively or even as an isolated incident match up with cervical degenerative disc disease and the need for 2-level spinal fusion when the Veteran was age 40.

In a May 2017 opinion, a different VA clinician opined that, following a review of the Veteran's medical records, to include specific evidence mentioned in the Board's November 2016 remand, it was less likely than not that the Veteran's current neck and back disabilities were related to active service.  This clinician agreed with the prior opinions and rationale provided by a different VA clinician in January 2017.  The rationale also was that there was insufficient evidence of a clinical correlation between the Veteran's current neck and back disabilities and active service or any incident of service.

The Veteran contends that his current lumbosacral spine disability and his current cervical spine disability are related to active service.  However, he has not demonstrated the knowledge and expertise necessary to provide an opinion as to the question of medical causation in order to competently address whether his back and spine diagnoses are elated to service.  See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer).  Here, the cause of arthritis or a herniated disc is a question outside of the realm of knowledge of a layperson using his/her senses.  Furthermore, his statements regarding onset and continuity of symptoms are not found to be credible due to inconsistencies with other pertinent information regarding post-service injury.  See, e.g., June 2012 Board Transcript (denying any post-service injuries to the back or neck); March 2000 private treatment record of Dr. Bryant (noting the Veteran had "initially undergone anterior cervical diskectomy and arthrodesis on 11/29/1999, secondary to a workers' compensation injury").

Here, the competent record evidence provided by the medical professionals does not support his assertions regarding an etiological link between any current lumbosacral spine disability or cervical spine disability and active service.  It shows instead that, although the Veteran has complained of and been treated for a variety of neck and back disabilities since his service separation and has had repeated cervical spine surgeries in recent years, neither his current neck disability nor his current back disability is related to active service.  Multiple VA clinicians provided negative nexus opinions concerning the contended etiological relationships between the Veteran's current neck disability, his current back disability, and active service.  The May 2017 VA clinician even reviewed specific evidence cited by the Board in its November 2016 remand when he provided his negative nexus opinions.  All of these opinions were fully supported.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  Simply put, the probative evidence weighs against finding that his currently claimed disorders are related to service, including the treatment he received for complaints therein.  In summary, the Board finds that service connection for a lumbosacral spine disability and for a cervical spine disability is not warranted.

The Board finally finds that service connection for arthritis of the lumbosacral spine or for arthritis of the cervical spine also is not warranted on a presumptive basis as a chronic disease.  See generally 38 C.F.R. §§ 3.307, 3.309.  The Board notes initially that arthritis is considered a chronic disease for which service connection is available on a presumptive basis.  Id.  The record evidence does not show that the Veteran experienced arthritis in either the lumbosacral spine or the cervical spine during active service or within the first post-service year (i.e., by September 1984) such that service connection is warranted for either of these disabilities on a presumptive basis as a chronic disease.  

Thus, the Board finds that service connection for arthritis of the lumbosacral spine or for arthritis of the cervical spine is not warranted.


ORDER

Entitlement to service connection for a lumbosacral spine disability is denied.

Entitlement to service connection for a cervical spine disability is denied.


REMAND

The Veteran also contends that his service-connected disabilities, alone or in combination, preclude his employability.  He specifically contends that he was forced to stop working in approximately 2006 and has been unable to obtain employment since that time due to the occupational limitations imposed on him by his service-connected disabilities.  

The Board acknowledges initially that the Veteran currently meets the scheduler criteria for a TDIU.  See 38 C.F.R. § 4.16(a) (2017).   Unfortunately, although the VA examinations of record address the impact of certain of the Veteran's service-connected disabilities on his employability, there is only limited information concerning whether these disabilities, alone or in combination, preclude his employability.  Thus, the Board finds that, on remand, the Veteran should be scheduled for appropriate examination to determine the impact of his service-connected disabilities, alone or in combination, on his employability.

The AOJ also should attempt to obtain the Veteran's updated treatment records.

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain all VA and private treatment records which have not been obtained already.

2.  Schedule the Veteran for appropriate examination to determine whether his service-connected disabilities, alone or in combination, render him unable to secure or follow a substantially gainful occupation.  The claims file should be provided for review.  The Veteran should be asked to provide a complete medical and employment history, if possible.

The examiner is asked to specify the occupational limitations associated with the Veteran's service-connected disabilities.  A complete rationale must be provided for any opinions expressed.  If any requested opinion(s) cannot be provided without resorting to speculation, then the examiner must explain why this is so.

The examiner is advised that service connection is in effect for generalized anxiety disorder, peptic ulcer disease, and bilateral pes planus.

3.  Readjudicate the appeal.   

The appellant has the right to submit additional evidence and argument on the matter or matters 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.A. §§ 5109B, 7112 (West 2014).



______________________________________________
K. GIELOW
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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