Citation Nr: 1418472 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 12-15 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for cervical spine disorder, including osteoarthritis, degenerative disc osteophyte complex disorder, and radiculopathy. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1980 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction over this matter is currently with the RO in Roanoke, Virginia. The issue has been recharacterized as reflected on the cover page given the nature of the Veteran's claim and the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim pursued by a claimant includes any diagnosis that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In October 2012, the Veteran presented testimony relative to the appeal at a Board hearing held before the undersigned Veterans Law Judge in Roanoke, Virginia (i.e., a Travel Board hearing). A transcript of the Board hearing has been associated with the physical claims file. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran has current cervical spine osteoarthritis and degenerative disc osteophyte complex disorder with radiculopathy. 2. There was no in-service injury or disease of the cervical spine. 3. Symptoms of cervical spine osteoarthritis were not chronic in service. 4. Symptoms of cervical spine osteoarthritis were not continuous after service separation. 5. Cervical spine osteoarthritis did not manifest to a compensable degree within one year following separation from service. 6. The Veteran's current cervical spine osteoarthritis and degenerative disc osteophyte complex disorder with radiculopathy are not related to service. CONCLUSION OF LAW Cervical spine osteoarthritis, degenerative disc osteophyte complex disorder, and radiculopathy were not incurred in service and may not be presumed to have incurred in service. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and the representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status, (2) existence of a disability, (3) a connection between a veteran's service and the disability, (4) degree of disability, and (5) effective date of the disability. Id. In a September 2009 notice letter, the RO apprised the Veteran of the information and evidence necessary to substantiate the claim for service connection for degenerative disc osteophyte complex disorder with radiculopathy, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The VCAA notice letter included provisions for disability ratings and for the effective date. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim in December 2009, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, Social Security Administration disability benefit records, the October 2012 Board hearing transcript, and the Veteran's statements. The Veteran was afforded a VA examination, administered by QTC Medical Services, in November 2011 to examine the cervical spine. The VA examiner reviewed the claims file, interviewed the Veteran about past and current symptomatology, and conducted a physical examination of the spine, including neurological testing. The VA examiner provided diagnoses, observations, and all required opinions, along with supporting rationale. Accordingly, the Board finds that the November 2011 VA (QTC) examination report and medical opinion is adequate and no further medical examination or opinion is needed. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, osteoarthritis - a form of arthritis - qualifies as a "chronic disease" under 38 C.F.R. § 3.309(a). See Dorland's Illustrated Medical Dictionary 1344 (32d ed. 2012) (noting that "osteoarthritis" may also be called "degenerative arthritis" or "degenerative joint disease"). "Degenerative joint disease, or osteoarthritis, is defined as arthritis of middle age characterized by degenerative and sometimes hypertrophic changes in the bone and cartilage of one or more joints and a progressive wearing down of apposing joint surfaces with consequent distortion of joint position usually without bony stiffening." Webster's Medical Desk Dictionary 501 (1986). See Giglio v. Derwinski, 2 Vet. App. 560, 561 (1992) (nonprecedential decision citing medical authority to show that degenerative joint disease is a form of arthritis); Greyzck v. West, 12 Vet. App. 288, 291 (1999) (nonprecedential decision recognizing Stedman's Medical Dictionary 9, 1267 (26th ed.1995) for the proposition that "degenerative joint disease" and "degenerative arthritis" are forms of arthritis subject to presumptive service connection). For chronic diseases under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. 498; Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau, 492 F.3d at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection Legal Analysis for Cervical Spine Disorder The Veteran asserts that cervical spine disorder and radiculopathy are the result of a neck injury sustained in service. Specifically, the Veteran contends that an off-base accident involving an M-80 firecracker (smoke bomb) burned his neck and resulted in present day symptoms including neck pain and numbness. See October 2012 Board hearing transcript at 3, 7-9. Initially, the Board finds that the Veteran has current cervical spine osteoarthritis and degenerative disc osteophyte complex disorder with radiculopathy. Cervical spine osteoarthritis with degenerative disc disease was diagnosed during the November 2011 VA examination following X-ray testing and neurological examination. Although the November 2011 VA examiner did not diagnose degenerative disc osteophyte complex disorder with radiculopathy, this diagnosis was provided by VA following a September 2005 MRI. See October 2006 VA treatment note. Cervical radiculopathy is also noted in the medical evidence included in the September 2011 Social Security Administration disability benefit notification letter. On review of all the evidence, lay and medical, the Board finds that there was no in-service injury or disease of the cervical spine. Service treatment records from January 1981 reflect that the Veteran received emergency care and treatment for burn wounds on the right side of the neck following an incident involving a smoke bomb at a club. The Veteran's hearing testimony asserts that this was the injury that caused pain from fire that penetrated inside the neck. See id. at 5. While this incident resulted in burns to the skin along the Veteran's right neck and shoulder, the January 1981 emergency care note does not indicate cervical musculoskeletal involvement, and follow-up treatment notes are similarly silent as to any cervical spine injury. A treatment note from May 1981 notes complaint of right shoulder pain. The Veteran awoke with pain, and the service medical clinician attributed the pain to an unknown etiology. Complaints of back pain in March 1982 were attributed to a muscle spasm, but it was not made clear what part of the back/spine was affected, and the neck was not mentioned. The June 1983 service separation examination includes a normal clinical evaluation of the spine, and the Veteran denied a history of recurrent back pain, neuritis, paralysis, or any other indication of a cervical spine disorder on the accompanying June 1983 report of medical history. The service treatment records, which appear to be complete, reflect that the Veteran was treated for other disorders during service, of which he did complain and seek treatment, though he did not report a cervical spine injury or complain of a cervical spine disorder. Such disorders include knee pain, hand pain, an arm injury, a groin rash, burning upon urination, and appendicitis. Similarly, the Veteran disclosed a history of pain or pressure in the chest, leg cramps, and broken bones in the June 1983 report of medical history. Thus, in consideration of the other evidence included in the service treatment records, it is likely that any cervical spine injury or problems would have been mentioned and/or detected during service. As a result, the absence of any in-service complaint, finding, or reference to treatment for a cervical spine injury weighs against finding an in-service cervical spine injury or disease. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-18 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran's failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). In this context, the Board finds that symptoms of cervical spine osteoarthritis were not chronic in service. As noted above, service treatment records, including the June 1983 service separation examination and report of medical history, do not include any complaint, finding, or reference to treatment for a cervical spine injury or disease. The Veteran has not asserted, in either the October 2012 Board hearing testimony or other statements to VA, that symptoms of cervical spine osteoarthritis were chronic in service. In contrast, the Veteran testified that neck pain from the smoke bomb incident "eventually healed," that he continued to work for two more years in service, and did not experience symptoms again until 2006. See October 2012 Board hearing transcript at 7. Thus, on review of the evidence, lay and medical, the weight of the evidence is against finding that symptoms of cervical spine osteoarthritis were chronic in service. Similarly, the Board finds that symptoms of cervical spine osteoarthritis were not continuous after service separation. The Veteran testified that he sustained a neck injury after service while working in 2006 as a painter. See id. at 5. The Veteran described the pain as similar in nature to the pain he experienced in service, but that the radiating symptoms were new. See id. at 8-9. Symptoms were reported to be "on and off" before the 2006 injury, and the Veteran testified that he began seeking treatment after the 2006 injury when the symptoms became constant and more severe. See id. at 10-11. The Veteran testified that there were no other neck injuries between the in-service smoke bomb incident and the 2006 injury. See id. at 12. The Board finds that the Veteran is competent to report the history of cervical spine disorder symptoms including neck pain and numbness. See, e.g., Clyburn v. West, 12 Vet. App. 296, 301 (1999) (veteran is competent to testify regarding continuous knee pain since service). However, the Board finds that the history provided by the Veteran, particularly the statement regarding "on and off" neck pain and numbness before 2006, is not credible. First, this history is inconsistent with post-service medical treatment evidence, which reflect an absence of symptoms of a neck or cervical spine disorder for over 20 years after separation from service in July 1983. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Review of post-service treatment records do not show that the Veteran presented with complaints of neck pain, numbness, or any other symptoms of a cervical spine disorder until 2005, or that the Veteran gave a history that includes either an in-service neck injury, neck disorder symptoms since service, or neck disorder symptoms prior to 2005. VA treatment records show that the Veteran presented for treatment of "chronic" left arm numbness in September 2005 and reported numbness in the right arm and neck in October 2005. Second, this history is inconsistent with the history provided by the Veteran to VA medical examiners for treatment purposes. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other earlier lay statements that he had not received any wounds in service). The November 2011 VA examination report reflects that the Veteran indicated onset of symptoms including neck stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness in October 2006. October 2006 was also the onset date of back pain and numbness indicated by the Social Security Administration in its review of the Veteran's claim for disability benefits. Thus, on review of all the evidence, lay and medical, there is no credible evidence to support a finding that symptoms of cervical radiculopathy were "on and off" between the in-service smoke bomb incident and the October 2006 work-related neck injury. Instead, the evidence tends to show that the symptoms of neck pain and numbness did not arise until September 2005 at the earliest, or nearly 22 years after service separation. Accordingly, on review of all the evidence, lay and medical, the weight of the evidence is against finding that symptoms of cervical spine osteoarthritis were continuous after service separation. Within this same context, the Board finds that cervical spine osteoarthritis did not manifest to a compensable degree within one year of service separation. As noted above, cervical spine osteoarthritis was not diagnosed until the November 2011 VA examination, over 28 years after service separation in July 1983. As the evidence shows no chronic symptoms of cervical spine osteoarthritis in service, continuous symptoms of cervical spine osteoarthritis after service separation, or manifestation of cervical spine osteoarthritis within one year of service separation, the Veteran is not entitled to service connection on a presumptive basis. 38 C.F.R. § 3.303(b), 3.307, 3.309; Walker, 708 F.3d at 1338-40. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine; however, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against this theory of the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Regarding the theory of direct service connection, the weight of the evidence is against finding that either current cervical spine osteoarthritis or degenerative disc osteophyte complex disorder with radiculopathy is related to service. In addition to the evidence discussed above, the medical evidence includes conflicting medical opinions on the question of the likely date of onset of a cervical spine disorder. The November 2011 VA examiner opined that the "current cervical spine condition did not begin while on active duty but developed post discharge of 24 year [sic] due to aging and is therefore not a result of military service." The VA examiner's opinion considered service treatment records, post-service treatment records, a medical history provided by the Veteran, and a physical examination. The examination report lays out a detailed medical history which notes no diagnoses related to the cervical spine in service. In contrast, a January 2011 letter from a VA physician includes the opinion that neck pain, tingling and numbness complaints associated with cervical radiculopathy "are more probable than not related to [the Veteran's] 1981 active duty bomb injury." The letter states that the Veteran "required frequent periodic care for new associated neck pain which later deteriorated into frank radiculopathic signs and symptoms." This VA physician provided care at the Chronic Pain Clinic where the Veteran was treated for those symptoms. When comparing these medical opinions, the Board notes again that post-service medical treatment records tend to show that symptoms of current cervical spine radiculopathy began in October 2006, following the Veteran's work-related neck injury. Thus, the January 2011 letter, which describes "frequent periodic care" for neck pain associated with the 1981 smoke bomb incident, is not grounded in facts supported by the record. See Prejean, 13 Vet. App. at 448-49. On the other hand, the November 2011 VA examination report contains an accurate history that notes an onset of symptoms of cervical radiculopathy over 20 years after separation from service in July 1983. Because the November 2011 VA medical opinion is based on an accurate factual history and the January 2011 letter is based on the inaccurate factual assumption of "frequent periodic care" that has not been discussed by the Veteran and which is not reflected in the medical evidence of record, the Board attributes more probative weight to the November 2011 VA medical opinion. See Bloom, 12 Vet. App. at 187; Hernandez-Toyens, 11 Vet. App. at 382. For the reasons discussed above, the Board finds that the weight of the lay and medical evidence is against finding that either the current cervical spine disorders, including osteoarthritis, degenerative disc osteophyte complex disorder, and radiculopathy, are related to service. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for cervical spine disorder, including osteoarthritis, degenerative disc osteophyte complex disorder, and radiculopathy, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs