Citation Nr: 0810523 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 05-04 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a neck disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bobby Mullins, Associate Counsel INTRODUCTION The veteran had active service from July 1972 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT The evidence establishes that the veteran does not currently suffer from a neck disorder that was caused by, aggravated by or manifested during the veteran's military service. CONCLUSION OF LAW A neck disorder was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of a letter sent to the veteran in August 2003 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the veteran of what evidence was required to substantiate the claims, and of the veteran's and the VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the AOJ. Specifically, in reference to a service connection claim, the United States Court of Appeals for Veterans Claims (hereinafter the "Court") has held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) applied to all five elements of a service connection claim, which include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the veteran's formal appeal was filed before Dingess/Hartman, and notice as to the criteria for evaluating disability and assigning an effective date following a grant of service connection was not sent in this case, this does not prejudice the veteran and is harmless error since service connection is being denied and no rating or effective date will be assigned with respect to this claimed condition. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. As will be discussed below, while there is medical evidence that the veteran suffered from neck pain in the past, there is no medical evidence indicating a current neck disability (nor is there evidence that such a disability was diagnosed in the past, manifested by pain or otherwise). The record is also missing critical evidence of an event, injury, or disease that occurred in service, so the veteran's claim for service connection for a neck disorder is also being denied on that basis. The outcome of this issue thus hinges on matters other than those which are amenable to VA examination and medical opinion. Specifically, resolution of the claim of entitlement to service connection for a neck disorder depends upon whether the veteran had a neck disease or injury in service, and if so, whether a current disability is related to such disease or injury. That latter question cannot be answered via a current medical examination or opinion, but rather on evidence such as the service medical records or evidence otherwise at least suggesting a current diagnosis and a connection between same and service. Such evidence is not of record. As explained in greater detail below, the outcome of the claim of service connection for a neck disorder hinges on what occurred, or more precisely what did not occur, during service. In the absence of evidence of in-service disease or injury, referral of this case for an opinion as to etiology would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical opinion which provided a nexus between the veteran's claimed disability and his military service would necessarily be based solely on the veteran's uncorroborated assertions regarding what occurred in service. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). Obtaining a medical nexus opinion under the circumstances presented in this case would be a useless exercise. In the absence of evidence of a current neck disability, or of the in-service incurrence of a neck injury or disease, there is no need for a medical nexus opinion. The facts of this case are different than the facts in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case there is no objective evidence of the in-service incurrence of a neck disease or injury. Under the circumstances presented in this case, a remand ordering a medical examination would serve no useful purpose. See Soyini, supra. Accordingly, the Board has determined that a medical opinion is not necessary in the instant case. Thus, the Board finds that all necessary development has been accomplished, and appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the veteran's service medical records, private medical records and VA medical records . The veteran submitted statements in support of his claim. The veteran was afforded a VA medical examination in June 2003. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Laws and regulations for service connection claims Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson lacking appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, including a diagnosis of a specific disability and a determination of etiology). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for a neck disorder The veteran contends that he currently suffers from a neck disorder, and has suffered from the disorder since falling down a flight of stairs while serving in the United States Marine Corps. The evidence against the veteran's claim is very strong in this case, however. During his 2 months and 22 days of service, the veteran never once complained of neck pain, and never received any medical treatment for his neck. The Board notes that there are complaints of back pain while the veteran was in service, but the veteran attributed this pain to falling out of a tree prior to active service. The examiner to whom the veteran reported this history also found evidence that the veteran was involved in a motorcycle accident 2 years prior to his active service. The veteran did not disclose this information prior to his acceptance into service. Immediately after the examiner learned of the pre-induction injuries to the veteran's back, the veteran was recommended for separation because he was not physically qualified for service. Before the service department followed through with the recommendation for separation, the veteran was examined in September 1972. During this examination, it was noted that x-rays of the veteran's lumbar spine revealed a deformity at L4, which was attributed to his accident prior to service. The remainder of the physical examination is described as normal, with no mention of a neck injury. Furthermore, the veteran made no mention of an incident during service in which he may have hurt his neck falling down a flight of stairs during his military service. Therefore, there is no evidence establishing that the veteran suffered from a neck injury while in service. There is however evidence that establishes that the veteran may have suffered a neck injury following his military service. Private medical reports of the Candler General Hospital dated December 1984 reveal that the veteran was in an automobile accident in November 1984, in which the van he was driving rolled several times. The reports note that the veteran was complaining of neck pain after the accident, and the etiology of the neck pain was determined to be "a consequence of this accident." It is further noted by one of the providers that treated the veteran in 1984 that the veteran had "no previous history" of neck pain prior to the November 1984 automobile accident - more than 12 years after the veteran was separated from active service. Furthermore, a VA examination from June 2003 says nothing of complaints of neck pain, or any residual neck disorder. There is complaint of a right shoulder injury, but this is directly assigned to an injury the veteran suffered on his job in March 2003. As previously discussed, there must be a medical diagnosis of a current disability for service connection to be granted. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). No such evidence exists, and service connection cannot be established without such evidence. In sum, the record is missing critical evidence of a current neck disability and of an event, injury, or disease that occurred in service, and the veteran's claim for service connection for a neck disorder is being denied on that basis. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable. The claim must be denied. ORDER Service connection for a neck disorder is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs