BVA9503051 DOCKET NO. 92-55 400 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a cervical spine disability, secondary to the veteran's service-connected low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Grace Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from January 1947 to June 1966. This appeal arises from rating decisions of June 1991 and December 1991 of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). That office denied a total rating for individual unemployability and service connection for a cervical spine disability secondary to the veteran's service-connected recurrent low back pain, respectively. The claim was remanded by letter in April 1992 for the purpose of providing the veteran an opportunity to testify at a personal hearing prior to adjudication of the claim. The veteran was afforded a personal hearing before a hearing officer at the RO in May 1992. A hearing was held on February 17, 1993, at the Board of Veterans' Appeals (Board) before C. W. Symanski. In June 1994, the claim was again remanded for further medical development. While on remand, the claim for a total rating for individual unemployability was granted, effective from November 1990. Therefore, that issue is no longer before the Board and is not reflected on the title page. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his accredited representative assert, in essence, that the veteran's cervical spine disability is secondary to his service-connected low back disability. The veteran believes that his numerous low back surgeries have had an impact on his cervical spine. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim as to service connection for a cervical spine disability secondary to his service-connected low back disability is well grounded. FINDING OF FACT The veteran's claim for service connection for a cervical spine disability secondary to his service-connected lumbar spine disability is not plausible as he has submitted no evidence showing that his cervical spine disability was caused by his low back disability. CONCLUSION OF LAW The appellant has not submitted a well-grounded claim for service connection for a cervical spine disability as being secondary to his service-connected low back disability. 38 U.S.C.A. §5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question as to the issue of entitlement to service connection for a cervical spine disability, secondary to the veteran's service-connected low back disability is whether the veteran has presented evidence of a well-grounded claim; that is, one that is plausible. If not, the appeal must fail and there is no duty to assist him further in the development of his claim as such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Tirpak v. Derwinski, 2 Vet.App. 609 (1992). For the reasons discussed below, the Board finds that the veteran's claim is not well grounded. Under applicable criteria, service connection is warranted for any disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. It is the veteran's assertion that his cervical spine disability is the result of his service-connected low back disability. The veteran maintains that his numerous lumbar spine surgeries have had an impact on his cervical spine, thus causing his cervical spine disability. A review of the record reveals that the veteran is service connected for recurrent low back pain with degenerative changes and history of recurrent lumbosacral strain, status post laminectomy. He was granted a 60 percent evaluation, effective from February 1987. In May 1988, an orthopedic summary note dated April 1988 from Chusakdi Suwansirikul, M.D., was submitted to VA. Dr. Suwansirikul indicated, in pertinent part, that the veteran complained of severe neck and back pain with radiation to the right buttock and right lower extremity for approximately six months prior to his hospital admission of March 1988. He also indicated that the veteran had experienced chronic low back pain for approximately 20 to 30 years and underwent laminectomy and diskectomy for the first time in May 1986, without improvement. The second operation of his low back was noted to be in November 1986, with some relief of those symptoms. Approximately six months' prior to admission, he experienced severe neck and low back pain which was aggravated by movement of the spine. Physical examination revealed marked spasm and tenderness at the paravertebral muscles and marked limitation of neck and back movement in all directions, especially forward bending. Dr. Suwansirikul found no definite sensory impairment and no definite neurological deficits in both upper extremities. X-rays of the cervical spine revealed cervical spondylosis with disc or spur indentation over the cul-de-sac at C3-4, C4-5 and suspected at C5-6. A CT scan of the cervical and lumbar spine showed focal central herniated disc of C5-6 and C4-5 and first degree spondylolisthesis of L4-5 with postoperative laminectomy at L4-5. The provisional diagnosis was cervical spondylosis and recurrent low back pain with herniated disc and lumbar stenosis. During hospitalization the veteran underwent a wide laminectomy from L3 to L5 with exploration of the nerve roots at L3 to L5 and post posterolateral fusion from L3 to L5 using bone graft from posterior right sacroiliac area. No cervical spine treatment was performed. Dr. Suwansirikul made no findings relating the veteran's cervical spine spondylosis to his low back disability. In December 1988, the veteran underwent an orthopedic disability evaluation for compensation and pension purposes by Dr. Suwansirikul. The veteran's chief complaint was severe neck and back pain with radiation to the right buttock and right lower extremity for approximately two years. The examiner gave a past history of a laminectomy and diskectomy of the lower lumbar vertebrae in May 1986 with no definite improvement. In November 1986 there was exploration of the lumbar nerve roots at the previous surgical area with slight improvement of the symptoms. In March 1988 a wide laminectomy from L3 to L5 and posterolateral fusion from L3 to L5 using bone graft was performed. The immediate postoperative period was satisfactory. Approximately six months after the March 1988 wide laminectomy, the symptoms of the neck and back rapidly deteriorated, especially numbness on the right side of the body. His daily activities were markedly limited and he could not climb stairs, sit for more than 15 minutes, or walk more than 100 meters, even with support. Orthopedic physical examination revealed the veteran was unable to stand up straight and walked with a limping gait, although he used a cane for support. The level of the right shoulder on standing was about 2 centimeters lower than the left. There was listing of the vertebral column, especially the thoracolumbar spine. There was marked spasm and tenderness of the paravertebral muscles and marked limitation of neck and back movement in all directions, especially forward bending. X-rays of the cervical spine showed normal alignment with straightening curve. Hypertrophic spurs were noted which encroached some intervertebral foramina such as right C3-4, C5-6, and left C6-7. There were narrow disc spaces between C3-4, C5-6, and C6-7 noted. X-rays of the lumbosacral spine revealed anterior subluxation of L4 over L5 in the first degree. Evidence of laminectomy of L4 with paravertebral soft tissue calcification, suspicious bone graft, bending of the thoracolumbar spine, narrow disc spaces, and narrow disc space of L4-5 was noted. There was no bony destruction seen. The diagnoses were cervical spondylosis and lumbosacral back problems. The examiner stated that due to the severe deteriorating back condition and the above-mentioned symptoms, it was his opinion that it would be extremely unwise and detrimental to the veteran's health to seek gainful employment. Dr. Suwansirikul did not attribute the veteran's cervical spine disability to his service-connected lumbosacral spine disability. Hospitalization reports in addition to disability evaluation reports dated December 1988 and September 1989 were received from Dr. Suwansirikul and were essentially the same reports as his December 1988 orthopedic disability evaluation for VA. None of the reports submitted by Dr. Suwansirikul related the veteran's cervical spine disability to his service-connected lumbar disability. In August 1990, a report of attending physician was received from P. Gaskins, M.D., which indicated, in pertinent part, that the veteran was status post lumbar surgery times three, with fusion in 1988, and now had chronic pain with permanent decreased sensation in ambulatory ability. Dr. Gaskins indicated that the veteran's current symptoms were neck pain with headaches with blackout spells associated with pain and numbness from the waist down. His diagnosis was chronic moderately severe pain. Dr. Gaskins indicated that it was his opinion that the veteran's impairment was serious and that he was likely unable to work. VA outpatient treatment records from 1990 to 1994 were associated with the claims folder and reflect treatment primarily for the veteran's cervical spine and low back disabilities. In November 1991, the veteran underwent a VA compensation and pension examination. He gave a history of a two-year complaint of neck pain radiating into his head with some radiation into his arms. He indicated that this pain caused him to blackout and to have numbness in both arms. The veteran stated that he felt like the pain was the result of his low back pain because after his low back surgery, he began to have increasing cervical pain without history of injury or trauma. Physical examination of the cervical spine showed diffuse tenderness over the entire shoulder girdle and neck with no palpable spasm. The veteran stated that he hurt all over. Range of motion of the neck was flexion accomplished to 30 degrees, with 30 degrees of extension and 30 degrees of lateral rotation. X-rays of the cervical spine showed variable degenerative disc disease throughout the cervical spine from C2-C7. Changes were most marked at C4-C7 where there was spondylosis present at C6-C7. The diagnostic impression was cervical spine pain. The examiner stated that the veteran may have well had cervical spine pathology, but he was unable to relate it to the veteran's low back condition and certainly not to his low back surgery. It was the examiner's opinion that the veteran's cervical spine pathology was most likely a separate process and not caused by his low back condition. In May 1992, the veteran had a hearing before a hearing officer at the RO. At this hearing, he indicated that it was his opinion that, after his third lumbar operation, he began to have cervical spine pain. He felt that his cervical spine area was aggravated by the loss of two discs and fusion of the lower spine. He indicated that he had been receiving treatment by the VA in the pain clinic. He also indicated the problems he had that resulted from his cervical spine and lumbar spine disabilities. In February 1993, a hearing was held before C. W. Symanski, who is the member of the Board rendering the final determination in this claim and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). The veteran testified at this hearing that it was his contention that the numerous surgeries of his lumbar spine had an impact on his cervical spine area. The veteran indicated that the cervical spine disability started in approximately 1988. He also indicated that two discs were bulging and protruding and abutting his spinal column. He claimed use of a cervical collar. He indicated that his doctor in Thailand had told him that the neck problem was caused by the lower back problem. He was advised during the hearing that obtaining a statement from that doctor would be evidence favoring his claim; however, in his response to this advice he intimated that no such statement would be forthcoming. (Hearing transcript pp. 9-12). Also associated with the claims folder are medical records from the Presbyterian Orthopedic Hospital which consist of a CT scan of the lumbar spine dated July 1993, an MRI of the cervical spine dated September 1993, and a lumbar diskogram of July 1994. None of the findings related the veteran's cervical spine disability to his service-connected lumbar spine disability. In August 1994, the veteran underwent a VA neurological and orthopedic examination of the lumbar spine. No findings related to his cervical spine disability were made. A July 1994 letter in support of the veteran's claim was received in August 1994 by VA from James E. Pugh, M.D. Dr. Pugh indicated that the veteran had been seen several times in his office for neurological evaluation of severe chronic back pain and lower extremity pain. He related the veteran's past history of several lumbar laminectomies and a required spinal fusion procedure at L4-L5. He also noted that he recently referred the veteran to a neurosurgeon who advised against surgery for a small left L3-4 lateral disc herniation. Dr. Pugh provided a medical summary of the veteran's low back pain and bilateral leg pain. He made no findings related to the veteran's cervical spine disability. As previously stated, it is the veteran's contention that his numerous surgeries of the lumbar spine had an impact on his cervical spine, which resulted in his cervical spine disability. However, this statement is not substantiated by the medical evidence of record. None of the medical evidence of record substantiates the veteran's claim that his cervical spine disability is proximately due to his service-connected lumbar spine disability. In fact, the only medical evidence of record which gives an opinion as to the relationship between the veteran's cervical and lumbar spine disabilities was made by a VA examiner at a November 1991 VA orthopedic examination. It was that examiner's opinion that the veteran had cervical spine pathology, but he was unable to relate it to the veteran's low back condition and certainly not to his low back surgery. The examiner stated that it was his opinion that the veteran's cervical spine pathology was likely a separate process and not caused by his low back condition. Although the veteran claims that his doctor in Thailand (Dr. Suwansirikul) indicated to him that his cervical spine disability was caused by his lumbar disability, the United States Court of Veterans Appeals (Court) has held that an appellant's statement of what a doctor told him does not constitute the requisite medical evidence of a medical diagnosis or medical causation/etiology to hold that a claim is well grounded. Robinette v. Brown, No. 93-985 (U. S. Vet. App. September 12, 1994). To sustain a well-grounded claim, the veteran must provide more than a bald allegation; supporting evidence demonstrating that the claim is plausible is required. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Although the veteran clearly believes that his cervical spine disability is proximately caused by his service-connected lumbar disability, his assertion, with nothing more, is insufficient to establish a well-grounded claim. The Court has held that lay testimony offering medical opinions or diagnoses is not sufficient to establish a well grounded claim. Espiritu v. Derwinski, 2 Vet.App. 492(1992). As this claim is not well grounded, the Board does not have jurisdiction to adjudicate it. Boeck v. Brown, 6 Vet.App. 14(1993). ORDER The claim for service connection for a cervical spine disability secondary to the veteran's service-connected low back disability is dismissed. C. W. SYMANSKI Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.