Citation Nr: 0813550 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-20 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a neck disability, including as secondary to service-connected disability of disk bulge at L4-L5 with pseudoarthrosis of S-1 on the left and mechanical low back strain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fleming, Associate Counsel INTRODUCTION The appellant had initial active duty training from June 2000 to November 2000 and served in the Nebraska Army National Guard from July 1999 to July 2004, including a period of active duty for training from August 4, 2001 to August 18, 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In that decision, the RO denied a claim for service connection for a neck disability, including as secondary to service-connected disability of disk bulge L4-L5 with pseudoarthrosis of S-1 on the left and mechanical low back strain. The appellant testified before a Decision Review Officer (DRO) at a hearing at the RO in October 2006, and before the undersigned Veterans Law Judge (VLJ) during a videoconference hearing in March 2008. Transcripts of both hearings are associated with the claims file. During the March 2008 hearing with the undersigned VLJ, the appellant stated that she wished to withdraw from appeal her claims for higher ratings for her service-connected left knee and left hip disabilities. In light of the appellant's statement, the Board considers the identified claims to be withdrawn and no longer in appellate status. FINDING OF FACT The appellant does not have a neck disability attributable to military service; a neck disability was not caused or made worse by service-connected low back disability. CONCLUSION OF LAW The appellant does not have a neck disability that is the result of disease or injury incurred in or aggravated during active military service; a neck disability is not proximately due to, or the result of, service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2007); 71 Fed. Reg. 52744-47 (Sept. 7, 2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to render a decision on the claim on appeal has been accomplished. In this respect, through August 2005 and March 2006 notice letters, the appellant received notice of the information and evidence needed to substantiate her claim. Thereafter, the appellant was afforded the opportunity to respond. Hence, the Board finds that the appellant has been afforded ample opportunity to submit information and/or evidence needed to substantiate her claim. The Board also finds that the August 2005 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO also notified the appellant that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. It requested that the appellant identify any medical providers from whom she wanted the RO to obtain and consider evidence. The RO also requested that the appellant submit evidence in her possession in support of her claim. Also regarding VA's notice requirements, the Board notes that, in the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held that proper VCAA notice should notify the appellant of: (1) the evidence that is needed to substantiate the claim, (2) the evidence, if any, to be obtained by VA, and (3) the evidence, if any, to be provided by the claimant; and (4) VA must make a request that the claimant provide any evidence in the claimant's possession that pertains to the claim. As indicated above, the four content-of-notice requirements have been met in this case. The Board notes that although notice regarding an award of an effective date or rating criteria was not provided until after the initial adjudication of the appellant's claim, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the appellant was supplied with notice pursuant to Dingess/Hartman via the March 2006 notice letter. The Board thus does not now have such issues before it. Consequently, a remand for additional notification on these questions is not necessary. The Board also notes that while the complete notice required by the VCAA was not necessarily timely provided, "the appellant [was] provided the content- complying notice to which [s]he [was] entitled." Pelegrini, 18 Vet. App. at 122. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. Here, the available portion of the appellant's service medical records have been associated with the claims file, including a record of the appellant's treatment immediately following her August 2001 in-service injury that forms the basis for the claim at bar. The Board notes that service medical records from January 2004 to April 2004 were requested but found to be unavailable. A formal finding of unavailability was entered into the record in February 2005, and the appellant was notified via letter of the unavailable records that same month. Additionally, records of private and VA medical care that the appellant has received since her separation from service have been associated with the file. The appellant was provided with VA medical examinations in September 2004, December 2004, June 2005, July 2005, June 2006, April 2007, and October 2007. Otherwise, neither the appellant nor her representative has alleged that there are any outstanding medical records probative of her claim that need to be obtained. The Board notes that the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when there is: (1) evidence of a current disability; (2) evidence establishing an in-service event, injury or disease, or a disease manifested in accordance with presumptive service connection regulations occurred that would support incurrence or aggravation; (3) an indication that the current disability may be related to the in-service event; and (4) insufficient evidence to decide the case. The Board notes that the record includes a substantial amount of medical evidence, including multiple VA medical examinations addressing the appellant's cervical spine disability in detail. The Board concludes that a current examination is not needed, as the medical evidence of record is sufficient to decide this case. Here, the only evidence indicating that current disability is linked to in-service injury is the appellant's own lay statements; the private medical opinion submitted by the appellant in October 2006 addresses only a secondary causal link between service- connected disability and the appellant's cervical spine strain. In view of the objective evidence of record discussed in detail below, the Board finds that the appellant's assertions in the face of this objective evidence are unsupported by the medical evidence and thus do not trigger VA's duty to provide an examination. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (in determining whether lay evidence is satisfactory, the Board may properly consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the appellant). Further, although the appellant's report of VA medical examination in July 2005 does not provide an etiological opinion as to a direct relationship between an August 2001 in-service injury and neck disability, addressing only whether the in-service injury itself could have resulted in the neck disability. The Board finds, however, that no such development is warranted. The evidence of record, which includes service medical records and treatment records from 2001 through the present, as well as multiple VA examinations, including a general medical examination in September 2004 at which the appellant described a number of physical problems related to the in-service injury, but made no reference to her neck, is sufficient to make a decision in this matter. See McLendon, 20 Vet. App. at 84-86. Although the Board has considered the appellant's and her representative's request for an additional VA examination in light of her contentions and the requirements set forth in McLendon, the Board concludes that the medical evidence and VA examinations of record are sufficient competent medical evidence to decide the claim, and an additional examination is not necessary. See 38 C.F.R. § 3.159 (c)(4). The Board thus concludes that the duty-to-assist requirements are satisfied. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis The Board first notes that the appellant has claimed service connection for neck disability both on a direct basis to service and as secondary to service-connected disability of disk bulge L4-L5 with pseudoarthrosis of S-1 on left and mechanical low back strain (low back disability). The Board will thus consider both theories of entitlement. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. This includes a disability made chronically worse by service- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre- aggravation baseline level of disability for the non-service- connected disability before an award of service connection based on aggravation may be made. This had not previously been VA's practice, which strongly suggests that the change amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the appellant's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. The appellant has contended that her currently diagnosed cervical strain is due to an August 2001 incident during active duty for training in which she fell and injured her right knee. Alternately, the appellant claims that the cervical strain has resulted from her service-connected low back disability. Relevant evidence of record consists of the available service medical records, private and VA treatment records from 2001 to the present, and reports of the multiple VA examinations. The appellant has also submitted an October 2006 statement by a private chiropractor offering an opinion as to the etiology of the cervical spine problems. A review of the appellant's available service medical records reflects documentation of the August 2001 in-service injury, in which she fell on a confidence course during training and injured her right knee. Review of the relevant service medical records reveals that the appellant did not complain of pain to her neck at the time of her injury. Review conducted in July 2003 pursuant to the appellant's medical retention hearing documented the appellant's ongoing treatment for a low back disability, but made no mention of any neck pain or disability. The records of post-service private and VA treatment, including both ongoing treatment at a pain management clinic and a December 2001 hospitalization for pain in the low back, hips, and right knee, are likewise silent as to complaints of or treatment for neck pain. A VA medical examination was conducted in June 2005 pursuant to the appellant's April 2005 claim of a neck disability related to the August 2001 in-service injury. Report of that examination specifically addresses the claim of a neck disability and notes that the appellant had not previously complained of or been treated for neck pain. The examiner recorded her complaints at the time of examination of pain, stiffness, and popping in the neck that were relieved somewhat by epidural injections the appellant received to treat the lumbar spine. Radiological examination revealed a normal cervical spine. The examiner diagnosed the appellant with cervical spine strain but offered no opinion as to its etiology. Records of a subsequent VA examination in July 2005 reflect the examiner's conclusion that the appellant's cervical spine strain was not related to any incident in service or to any service-connected condition. The report indicates that the appellant reported no history of trauma to her neck and suggested to the examiner that the pain may be caused by her sleep patterns instead. Radiological examination revealed no evidence of fracture, dislocation, or significant arthrosis of the cervical spine. The examiner did not conduct a physical examination, as he concluded that the appellant's cervical spine strain was not related to her service- connected low back disability. Report from the examination documents that the examiner discussed with the appellant his conclusion that it is not "plausible to draw a correlation between the lumbar spine and cervical spine condition," a conclusion with which the appellant is noted to have agreed. Reports from subsequent VA examinations in June 2006, April 2007, and October 2007, as well as VA examinations in September 2004 and December 2004, make no mention of the appellant's complaints of pain in the cervical spine. In fact, at the September 2004 general medical examination, the appellant is noted to have denied receiving treatment for any medical conditions not identified at the time of the examination. In each of these examinations, the appellant is noted to have complained of multiple physical problems, but made no reference to problems with her neck or cervical spine. The Board notes further that the appellant has submitted no medical or other evidence documenting any cervical spine disability dated prior to the filing of her claim for service connection in April 2005. In fact, the report of a June 2005 VA medical examination is the first medical evidence in the record documenting any neck problem whatsoever. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for neck disability, including as secondary to service-connected low back disability. The Board notes at the outset that the appellant has submitted no medical or other evidence documenting any neck disability dated prior to the filing of her claim for service connection for a neck disability in April 2005. The Board considers this fact to weigh against her claim of having had problems with her neck since the August 2001 injury. In fact, the first time the appellant identified any neck problems whatsoever to a medical professional was during her June 2005 VA examination, two months after first filing her claim. Here, notwithstanding the appellant's current diagnosis of cervical spine strain, a review of the relevant medical evidence does not reflect competent medical evidence linking the cervical strain either to the August 2001 incident or to the in-service back injury. Hence, an essential requirement for service connection is not met. The Board finds the medical evidence in the appellant's service medical records to be persuasive that she made no complaints of, and was not treated for, neck pain or a neck disability following the August 2001 injury or at any time thereafter while in service. The Board further finds that the appellant's post-service private and VA medical records support the finding that the appellant did not complain of, and was not treated for, any neck pain or disability prior to the April 2005 filing of her claim. Documentation of the appellant's April 2004 claims for service connection and subsequent September 2004 and December 2004 VA medical examinations, at which no disorder or abnormality of the neck was noted or diagnosed, also weighs against the appellant's claim of having had an ongoing neck disability from the time of her in-service injury. The Board concedes that the appellant's June 2005 VA examination confirms a diagnosis of cervical spine strain but concludes that there is no competent medical evidence relating that disorder to service or to her service-connected low back disability. The appellant's August 2001 in-service injury was not shown to have involved the appellant's neck. After that time, the evidence of record is devoid of any complaints or objective medical evidence of a disability until June 2005, several months after the appellant initially filed the claim for service connection for a neck disability. The Board points out that for nearly 4 years the appellant did not seek treatment for or reference any neck problems, which she now asserts are related to the injury she suffered in service. It is clear, as discussed above, that although the appellant has been treated since service for a multitude of health problems resulting from the August 2001 injury, a neck disability is not among the problems for which she has been treated. Additionally, the post-service private and VA medical records reflect no neck complaints during the appellant's ongoing treatment since 2001, and the September 2004 and December 2004 VA medical examinations were likewise negative for any neck complaints or problems. The appellant's history as reported to the VA examiner in June 2005, after she filed her claim for service connection, is accorded less weight than the records, or absence thereof, suggesting no neck disability prior to that time. Further, as discussed above, it is apparent that the appellant did not previously report having neck problems when she had the opportunity during the 2004 VA examinations. It would seem that if the appellant had had ongoing neck complaints, she would have at least commented on them during the September 2004 general medical review. The Board finds that the private and VA medical records and the September 2004 and July 2005 VA examinations support the finding that the appellant's neck disability is not related to her August 2001 in-service injury. The Board thus concludes that no neck disability is related to in- service injury. The Board has considered the statement by the appellant's chiropractor in October 2006, submitted in support of the theory of secondary service connection. However, the Board notes that the doctor gives no clear basis for her opinion, addressing instead an apparent leg length inequality that "places stress on the spine and causes spasms of the muscles," which can "cause subluxations which are present in the entire spine." There is no clear etiological link present in this statement between the appellant's service- connected low back disability and her cervical spine disability; nor is there any indication that the doctor examined the appellant or reviewed her medical records in rendering the opinion. The Board thus finds that the October 2006 private chiropractor's opinion regarding a possible relationship between the appellant's in-service injury and her current neck disability is speculative in nature and, as such, of no probative weight. In so finding, the Board notes that service connection may not be based on speculation or remote possibility. See 38 C.F.R. § 3.102; Obert, 5 Vet. App. at 33; Tirpak, 2 Vet. App. at 611; see also Davis v. West, 13 Vet. App. 178, 185 (1999); Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996). In this case, the private chiropractor apparently could not confirm the etiology of the appellant's disability without resorting to speculation; therefore, this medical opinion does not have the required degree of medical certainty required for service connection. See Hinkle v. Nicholson, 19 Vet. App. 465 (2005) (medical opinions based on speculation are entitled to little, if any, probative value); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). The strongest evidence in favor of the appellant's claim is the speculative opinion she submitted, which opinion is equivocal and seems to attribute a neck disability to leg-length discrepancy that has caused muscle spasms, not to the service-connected low back disability. This is far outweighed by the medical evidence both during and after service, which shows no complaints of or treatment for a neck disability prior to the filing of the claim. Additionally, there is no other medical evidence that relates the appellant's current cervical spine strain to her in- service injury; indeed, the only probative opinion of record-the July 2005 report of VA medical examination- clearly weighs against such a finding. The evidence of record, especially the absence of any complaints in the appellant's medical records of pain in her neck prior to the filing of her current claim, outweighs any suggestion by the appellant or speculation by her chiropractor. Consequently, the Board finds that the preponderance of the evidence is against this claim. With respect to the appellant's claim, the Board has considered the appellant's hearing testimony and written contentions. The Board notes that although the appellant is competent to report symptoms, she does not have medical expertise and therefore cannot provide a competent opinion regarding diagnosis or causation of her disability. As a layperson without the appropriate medical training or expertise, the appellant is simply not competent to provide a probative opinion on a medical matter-such as whether a current disability exists or whether there is a relationship between a disability and service or service-connected disability. See Bostain v. West, 11 Vet. 124, App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). As such, the appellant's assertions, alone, cannot provide a basis for a grant of service connection. For all the foregoing reasons, the appellant's claim for service connection for cervical spine strain must be denied. In reaching this conclusion, the Board has considered the provisions of 38 U.S.C.A. § 5107(b); however, as the preponderance of the evidence is against the appellant's claim, such statute is not for application in this instance. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for neck disability is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs