99-11 589
99-11 589
Board of Vet. App.Jan 31, 2017Background
- Veteran served in the Marine Corps, Jan 1961–Jan 1965; claim for cervical spine service connection filed June 1999; lumbar spine service-connected and rated 60% since Feb 2, 1998.
- Procedural history: initial RO denial (May 2000), Board denials, remand after CAVC JMR (2007), multiple Board remands and development through 2016; VA examinations obtained and considered adequate.
- Service treatment records (1961–1965) show normal spine at entry and separation; lumbar complaints present in service but no cervical complaints or diagnosis in service or within one year post-service.
- First objective cervical imaging/diagnosis appears in 1991 and later records/surgery in the 1990s–2000s; no continuous symptomatology from service shown.
- Multiple VA examiners (2009, 2016) opined cervical disorder is less likely than not related to service or to the service-connected lumbar disability; no private medical nexus evidence submitted.
- For lumbar spine: examinations show reduced lumbar ROM and radiculopathy but no ankylosis; combined orthopedic + neurologic ratings do not exceed the current 60% schedular cap absent ankylosis.
Issues
| Issue | Veteran's Argument | VA's Argument | Held |
|---|---|---|---|
| Service connection for cervical spine disorder (direct or secondary) | Cervical disorder is due to service or secondary to service-connected lumbar disability | No in-service cervical condition, no diagnosis within one year, and VA medical opinions find no nexus to service or to lumbar disability | Denied — insufficient evidence of in-service injury, continuity, or medical nexus to service or lumbar disability |
| Increased rating above 60% for lumbar spine disability | Current symptoms and neurologic findings warrant >60% | No ankylosis of entire spine; ROM and neurologic findings (mild radiculopathy) do not combine to exceed 60% schedularly | Denied — criteria for >60% not met; 60% remains appropriate |
| Presumptive service connection for cervical arthritis under chronic disease rules | Cervical arthritis presumed due to service | No diagnosis or characteristic manifestations within one year of separation; no chronic disease evidence in service | Denied — presumption not triggered |
| Extraschedular evaluation under 38 C.F.R. §3.321(b)(1) | (Not specifically pursued) | Not raised nor supported by the record | Not considered/applicable |
Key Cases Cited
- Dyment v. West, 13 Vet. App. 141 (discusses substantial compliance with Board remand directives)
- Barr v. Nicholson, 21 Vet. App. 303 (standards for adequacy of VA examinations)
- Jandreau v. Nicholson, 492 F.3d 1372 (lay evidence competency to report symptoms)
- Buchanan v. Nicholson, 451 F.3d 1331 (limits of lay competency to provide medical nexus)
- Walker v. Shinseki, 718 F.3d 1331 (scope of 38 C.F.R. §3.303(b) continuity of symptomatology)
- Shedden v. Principi, 381 F.3d 1163 (elements required for service connection)
- Bernard v. Brown, 4 Vet. App. 384 (duty to assist / development standards)
- Mitchell v. Shinseki, 25 Vet. App. 32 (pain and functional loss under §4.40)
- DeLuca v. Brown, 8 Vet. App. 202 (consideration of functional loss and repeated use)
- Hart v. Mansfield, 21 Vet. App. 505 (duty to consider staged ratings)
- Yancy v. McDonald, 27 Vet. App. 484 (extraschedular evaluation standards)