Citation Nr: 0810500 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-05 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran served on active duty from November 1987 to November 1991. This matter came to the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that rating decision, in pertinent part, the RO denied service connection for a cervical spine disability, and the veteran's disagreement with that decision led to this appeal. The veteran testified before a Decision Review Officer at a hearing held at the RO in January 2005. The Board remanded the claim in November 2005, and it is now before the Board for further appellate consideration. FINDING OF FACT There is no evidence of a chronic cervical spine disability in service, nor is there competent evidence of arthritis of the cervical spine within the first post-service year; the preponderance of the evidence is against finding a causal relationship between the veteran's service or any incident of service and his current cervical spine disability. CONCLUSION OF LAW A cervical spine disability was not incurred in service nor may arthritic changes of the cervical spine be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VA duty to notify and assist Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. See 38 C.F.R. § 3.159. These notice requirements apply to all five elements of a service connection claim: veteran status; existence of a disability; a connection between the veteran's service and the disability; degree of disability; and the effective date of any award of benefits. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In this case, in a letter dated in December 2002, prior to the initial adjudication of the veteran's service connection claim, the RO explained to the veteran that to establish entitlement to service-connected compensation benefits, the evidence must show three things: (1) an injury in service, a disease that began in or was made worse in service, or an event in service causing injury or disease; or, evidence of presumptive condition within a specified time after service; (2) a current physical or mental disability; and (3) a relationship between his current disability and an injury, disease, or event in service. The RO explained that medical evidence or other evidence showing he has persistent or recurrent symptoms of disability would be reviewed to see if he had a current disability or symptoms of disability. The RO also stated that a relationship between current disability and an injury, disease, or event in service was usually shown by medical records or medical opinions; the RO also explained that the relationship was presumed for veterans who have certain chronic diseases that become manifest within a specific period of time after discharge from service. In the December 2002 letter, the RO notified the veteran that he should complete and return release authorizations for private medical records that he thought would support his claim. The RO pointed out that the veteran had mentioned records from L.M, a chiropractor, and requested that he send his records or complete and return an enclosed release authorization form and VA would request them. The RO notified the veteran that he should tell VA about any additional information or evidence that he wanted VA to try to get for him. The RO requested that the veteran send the information describing additional evidence or the evidence itself. The RO stated that it would make reasonable efforts to help the veteran get such things as medical records, employment records, or records from other Federal agencies. In addition, in a letter dated in December 2005, the Appeals Management Center (AMC) notified the veteran it was working on his claim for service connection for a cervical spine disability and again outlined what the evidence must show to support a service connection claim. The AMC provided the veteran with notice of what evidence VA would obtain including relevant records from a Federal agency and relevant records not held by a Federal agency, including private medical records, provided he furnished enough information about his records so that VA could request them. The AMC emphasized to the veteran that it was his responsibility to make sure VA received all requested records that were not in the possession of a Federal department or agency. The AMC requested that the veteran let VA know if there was any other evidence or information that he thought would support his claim and requested that he send any evidence in his possession that pertains to his claim and had not previously been considered. The AMC requested that the veteran send any medical reports he had and specifically requested that he provide release authorizations for information from any doctors and/or hospitals concerning any treatment he had received, to include treatment he received from Dr. L.M., to whom he had referred. In addition, in an August 2006 letter, the AMC notified the veteran that when VA found disabilities to be service connected, it assigned a disability rating and an effective date. The AMC described the kind of evidence considered in determining a disability rating and an effective date and provided examples of the evidence the veteran should identify or provide with respect to a disability ratings and effective date. In view of the foregoing, the Board finds that the veteran was effectively informed to submit all relevant evidence in his possession and that he received notice of the evidence needed to substantiate his service connection claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005); see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). As to timing of notice, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that timing-of-notice errors can be "cured" by notification followed by readjudication. Mayfield v. Nicholson, 444 F.3d 1328, 133-34 (Fed. Cir. 2006) (Mayfield II); see Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) ("The Federal Circuit specifically mentioned two remedial measures: (1) The issuance of a fully compliant [section 5103(a)] notification, followed by (2) readjudication of the claim."); Pelegrini v. Principi, 18 Vet. App. 112, 122-24 (2004) ("proper subsequent VA process" can cure error in timing of notice). The most recent notice regarding the service connection claim was given to the veteran in August 2006, and the AMC thereafter readjudicated the merits of the veteran's service connection claims and issued a supplemental statement of the case (SSOC) in October 2007. The United States Court of Appeals for Veterans Claims (Court) has held that a SSOC that complies with applicable due process and notification requirements constitutes a readjudication decision. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III); see also Prickett v. Nicholson, 20 Vet. App. 370 (2006) (holding a Statement of the Case that complies with all applicable due process and notification requirements constitutes a readjudication decision). As the SSOC complied with the applicable due process and notification requirements for a decision, it constitutes readjudication of the claim. As a matter of law, the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Mayfield III, citing Mayfield II, 444 F.3d at 1333-34. As to the duty to assist, service medical records are in the file, and the veteran has been provided a VA examination with a medical opinion relative to his claim. The veteran submitted medical records and letters from private doctors, and he testified at the January 2005 hearing. At the hearing, the veteran testified that while in service he expressed complaints about his upper back and testified that he meant he had pain in his neck. The veteran testified that X-rays of his neck were taken in 1991 while he was stationed in Manheim, Germany. In response to a request from the RO, the National Personnel Records Center provided original service medical records for the veteran, which on inspection, are originals of copies of service medical records the veteran had submitted previously. The NPRC stated specifically that these were all service medical records that it had for the veteran. The AMC also requested service medical records, including X-ray reports, directly from the U.S. Army Health Clinic, Mannheim, Germany; in June 2007 that facility replied it had no records for the veteran and advised any further request be made to NPRC. The AMC had previously advised the veteran of the request and also told him it was ultimately his responsibility to make sure VA received this evidence. Neither then, nor after he was informed of the negative reply from the Army Health Clinic in Mannheim, has the veteran indicated that he has or knows of any additional information or evidence pertaining to his claim. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the veteran relative to the claim decided here, and thus, no additional assistance or notification is required. The veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, 4 Vet. App. 384, 392-94 (1993). Legal criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service there is required a combination of manifestations in service sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for arthritis may be granted on a presumptive basis if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Background and analysis At the January 2005 hearing, the veteran testified that as to injury of his neck in service, he would tell health care providers in service that it was his upper back that was bothering him instead of calling it his neck. He said that he had worse problems with his low back so that was what would be addressed by examiners. The veteran testified that around the beginning of 1991 he told the doctors that there was something wrong with his upper back because it was getting worse and that some X-rays were taken and he was told he had a pinched nerve. He also testified that in approximately July 1991, he was taking a drive shaft off of a vehicle and the drive shaft fell on his forehead, his head went backwards, and he bumped the back of his head into the ground. He said he went to the dispensary and had a bump and cut on his forehead and started feeling the pain was a lot worse. In his arguments regarding his claim, the veteran has asserted that in service he complained several times of pain in is low back "radiating up his back" and of pain in his upper back with numbness in both his arms. He states these are the symptoms he had in service, and with those arguments the veteran submitted copies of selected service medical records, which he states show complaints in 1988 and show he was still having pain and numbness in 1991. The veteran submitted a copy of a July 1988 emergency room record showing he was seen with complaints of severe right ear pain and neck pain with a bump on his neck. Review of that record shows that the veteran complained of right ear pain for the past three days and that after examination the diagnosis was otitis externa, right ear. The veteran was continued on antibiotics, which the record shows had been started when he visited the dispensary with right ear complaints earlier that day. The veteran also submitted a screening note of acute medical care showing that in February 1991, he was seen with complaints of pain in his low back that radiated up the spine. He said he usually felt this when exercising, doing sit-ups or back stretches. He also complained of cramps in his arms and legs in the morning. The chronological record of the same date shows the assessment after clinical examination was back pains, and the veteran was prescribed medication and a 14 day profile for no sit-ups. The clinical examiner noted that X-rays showed possible slight narrowing at L1-L2, but said he would await official reading. The veteran also submitted the February 1991 X-ray report ordered because of low back pain occasionally radiating upward; in that report the radiologist stated there was no significant abnormality. In addition, the veteran submitted a screening note of acute medical care dated in April 1991. The veteran complained of increased back pain with pain around his waist and numbness in both arms. The page the veteran submitted shows that the examiner noted slight spasm in the right upper back and said there was 5/5 strength in both upper extremities. It was noted that that veteran had previously been seen in March 1991 and reference was made to that note. It was not submitted by the veteran, but review of the service medical records show that the assessment was mechanical low back pain. The Board has reviewed the veteran's service medical records and finds no reference to any complaint, finding, or diagnosis concerning the veteran's neck or cervical spine. This includes the specific service medical records the veteran submitted as supporting his claim. With respect to his hearing testimony, the service medical records include a July 1991 entry showing the veteran was seen with complains of being hit in the head with a "dry shaft." The veteran complained of slight dizziness with no visual problems or loss of consciousness. On examination, he had a lump above his right eyebrow and a small laceration with minimal bleeding. He was referred to a physician's assistant who after examination, made the assessment of a 2-centimetr superficial laceration of the right forehead. He cleaned the laceration and applied a steri-strip. He prescribed pain medication, an ice pack, and light duty for the rest of the day. There was no mention of neck complaints at that time or in any other medical record. At the veteran's separation physical examination in September 1991, the examiner evaluated the veteran's neck as normal. VA medical records show that in March 2001, the veteran was seen with complaints of headaches and neck and back pain occurring as frequently as every two or three days. He also said he sometimes also had cramping in both legs and numbness of the hands and wrists. He reported these symptoms had been going on for the past 11/2 years and happened mostly at work. The physician stated that on musculosketal examination the cervical, thoracic and lumbar spine were not deformed and were nontender. There was no palpable trigger, and range of motion was intact at the shoulders, elbows and wrists. The assessment included chronic back pain. The veteran submitted reports from El Paso Orthopaedic Surgery Group & Center for Sports Medicine dated from September 2000 to September 2004. They show that in September and October 2000, the veteran was seen with complaints of low back pain, and the diagnosis was sprain lumbar region. In October 2001, the veteran underwent an evaluation by T.K., M.D., who noted the veteran complained of neck pain, back pain, arm pain, leg pain, chest pain, and hand pain. The veteran stated that all the symptoms began when he was in the military but had been aggravated by work. He stated that he had had problems with his neck and back for more than ten years. The veteran provided VA records, which the physician noted showed benefits had been awarded for impairment of the thoracic and lumbar spine. On examination in October 2001, Dr. T.K. stated the cervical spine demonstrated restricted range of motion in all planes, and there was mild tenderness to the paraspinal musculature. He noted that X-rays taken at Del Sol approximately a week earlier had shown some narrowing of the disc space at C4 and C5. X-rays of the cervical spine on the day of the examination demonstrated reversal of the normal lordotic curvature; no fractures were noted. The diagnosis after clinical examination and review of the X-rays was sprain of neck, chronic. Dr. T.K. recommended a program of therapy and said the veteran's work might be aggravating his condition as it required a lot of repetitive activities. A magnetic resonance imaging (MRI) study of the cervical spine done by Texas Imaging Services/Open MRI in mid- October 2001 showed central disc protrusion at C3-C4 indenting the cord. There was a tiny disc protrusion at C5- C6, which the radiologist said did not appear to be mechanically significant. There was annular bulging with effacement of the cerebrospinal fluid anterior to the cord at C4-C5. When he was seen by Dr. T.K. in late October 2001, the veteran's complaints included neck pain. Dr. T.K. said that examination of the cervical spine demonstrated tenderness over the paraspinal musculature. He noted that review of the mid-October 2001 MRI of the cervical spine demonstrated central disc protrusion at C3-C4 and a small protrusion at C5-C6. The diagnosis reported by Dr. T.K. was cervical herniated disc. When the veteran retuned in late November 2001, Dr. T.K. stated that the veteran had been followed for multiple complaints including chronic cervical sprain; after examination, he continued the diagnosis of neck sprain. In April 2002, Dr. T.K. noted that the veteran had persistent symptoms including pain in the neck. VA medical records show that when the veteran was seen for an initial physical therapy assessment in December 2002, the veteran reported he was not working currently due to neck and back pain. He said his cervical pain was 8 on a scale of 10 and his lumbar spine pain was 7 on a scale of 10. The veteran stated his symptoms had been present since 1990. He said he was currently receiving private therapy at a chiropractor's clinic and wished to continue with that. In a May 2003 letter, S.P., M.D., who specializes in neurological surgery and disorders of the low back, head, and neck, stated he first evaluated the veteran in April 2003. He noted that the veteran was seen with regard to pain and paresthesias with cramping sensation of the hands and wrists with numbness and tingling of the forearms, as well as a history of neck pains and a history of low back pains that had been present before. As to the neck pains, they were described as being off and on, and the veteran reported that his work required frequent neck motion and lateral hyperextension or hyperflexion of the cervical spine. The physician said the veteran's major important pain appeared to be related to the forearms, both wrists and hands, with hyperextension, cramping and pains from the wrists to the forearm as well as motion of the wrists and hands. The veteran said that during his military service he had some transient low back and neck pains of no major significance. After examination, Dr. S.P. said that overall in his opinion the veteran suffered from residual cervical myofascial pains as well as bilateral early carpal tunnel syndrome. Later in the letter, the physician noted a previous cervical spine MRI disclosed expected multiple degenerative changes without any true evidence of herniated disc. He also noted that recent cervical spine X-rays were negative for any fractures, subluxations, or any other pathology. The physician prescribed medication and recommended rotation of activities. In a letter dated in June 2003, Dr. S.P. noted that the veteran reported that with the use of conservative symptomatic treatment and measures, his pain had improved and was basically related to repetitive motion. He said the previous musculoskeletal pain involving the cervical and upper thoracic area, including the shoulder blade muscle group, had subsided on a substantial basis. At a routine VA clinic appointment in June 2003, the veteran complained of chronic "entire back" pain. He reported he had recently seen Dr. S.P. and had relief from the prescribed medications. In November 2003, the veteran was seen in the orthopedic clinic with complaints of chronic neck pain with recent worsening of symptoms, which had waxed and waned. The veteran correlated the worsening of his symptoms with his job duties as a mail handler. An MRI was planned. In January 2004, MRI films were interpreted for VA at William Beaumont Army Medical Center. The radiologist stated there were small posterior osteophytes on the inferior plate of C3 and C4. He said that at C3-C4 there was moderate spinal canal stenosis secondary to a disc osteophyte complex with no neural foraminal stenosis. At C4-C5, there was moderate spinal canal stenosis secondary to a disc osteophyte complex, with mild bilateral neural foraminal stenosis. At C5-C6, there was mild narrowing of the spinal canal secondary to a small posterior osteophyte, but there was no significant neural foraminal stenosis. In a note titled Ortho Consult Results dated in February 2004, the physician reported the diagnosis of mild bilateral foraminal stenosis at C4-C6. At a VA examination in August 2006, the veteran stated he started having problems with his neck when he was on active duty in 1989. He said that while he was performing his military duties as a mechanic, he started noticing some pain to his neck. The veteran said this pain was so mild he never reported this to a military physician. The veteran said that at his retirement physical in 1991, he reported this to the military physician, but never received any medical treatment for this condition. At the VA examination, the veteran stated that over the years his neck condition progressively worsened and he denied having any accidents or trauma to his neck during those years. The veteran complained of constant severe neck pain and said he would have flare-ups of the pain. He said that activities and conditions that made his neck pain worse were repetitive use of his hands or any strenuous chores, but sometimes when he felt better he could do some strenuous activities like digging with a shovel. At the examination, the physician said the veteran showed obvious positive Waddell testing for nonorganic signs of pain basically manifested by overreaction for the examination. After clinical examination and review of August 2006 X-rays and the January 2004 MRI study, the diagnosis was chronic neck strain secondary to mild degenerative disc disease of the cervical spine with no evidence of radiculopathy. The physician who conducted the August 2006 VA examination stated that he reviewed the veteran's claims file, including service medical records and post-service VA and private medical records. The physician said that after review of the record and physical examination of the veteran, it was his medical opinion that the veteran's chronic neck strain with secondary degenerative disc disease of the cervical spine is "less likely not secondary to his military service." The physician said he based his opinion on the records in military service in which the veteran never complained about his neck, and the physician emphasized that although there was evidence that the veteran complained about his low back and other problems in service, he never complained about his neck. The physician said that besides that, there is evidence in the record that the veteran started complaining about his neck intensively in 2001, but at that time imaging studies of the neck showed only minimal narrowing of C3 and C4 and no more problems. He said in his opinion that the veteran's condition since then had followed the normal progress of the disease with progression of his degenerative osteoarthritis from minimal degenerative disease in 2001 to now being moderate to severe according to the most recent MRI report. As is shown by the medical evidence outlined above, there is medical evidence that the veteran has a current cervical spine disability, which has been diagnosed as chronic neck strain with degenerative disc disease. The veteran reports that he had neck pain starting in service and that it has continued since then, but this is not supported by any corroborating evidence. The service medical records include no complaint or finding concerning the veteran's cervical spine and on only one occasion mention the veteran's neck, which was when the veteran complained of ear pain and neck pain and was diagnosed as having right ear otitis externa. The absence of any treatment records or diagnosis relating to a cervical spine disability in service or for many years thereafter is significant evidence against the claim. The Federal Circuit has determined that a significant lapse in time between service and evidence of post-service medical treatment may be considered as part of the analysis of a service connection claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In addition, there is no medical evidence that suggests a causal relationship between any current cervical spine disability and any incident of service, including being hit in the head when a drive shaft fell off a vehicle. The Board acknowledges that the veteran is competent to report symptoms during and since service, but the crucial medical nexus that relates his current cervical spine disability to service or symptoms that started in service is missing. The Board has considered the veteran's statements of recurrent episodes of neck pain, but such statements do not serve as competent evidence of a relationship between his current cervical spine disability and service or any incident of service. In this regard, the Board notes that the record does not show, nor does the veteran contend, that he has specialized education, training, or experience that would qualify him to provide medical opinions. It is now well established that a lay person such as the veteran is not competent to opine on medical matters such as diagnoses or etiology of medical disorders, and this veteran's opinion that his current cervical spine disability had its onset in service or is causally related to any incident of service is therefore entitled to no weight of probative value. See, e.g., Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board also notes that a veteran's assertions, no matter how sincere, are not probative of a medical nexus between the claimed disability and an in-service disease, injury, or event. See Voerth v. West, 13 Vet. App. 118, 120 (1999). His statements are not, therefore, probative of the etiology of his current cervical spine disability or its relationship to service. The only medical evidence as to etiology of the veteran's cervical spine disability is squarely against the claim. The VA physician who examined the veteran in August 2006 reviewed the entire record with the service medical records and VA and private medical records, including those in which the veteran gave a history of neck pain since 1990 when he was in service. Based on his examination of the veteran and review of the record, the physician concluded the veteran's cervical spine disability is not related to his military service not only because there were no neck complaints in service but also because there was what the physician described as only minimal degenerative disease in cervical spine when the veteran first sought medical care for neck pain in 2001 (which was 10 years after the veteran's separation from service). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); also see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Under the circumstances, the claim must be denied. ORDER Service connection for a cervical spine disability is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs