Citation Nr: 1007364	
Decision Date: 02/26/10    Archive Date: 03/05/10

DOCKET NO.  00-11 305	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York


THE ISSUE

Entitlement to service connection for a neck disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Layton, Associate Counsel




INTRODUCTION

The Veteran served on active duty from March 1981 to January 
1985.

This appeal to the Board of Veterans' Appeals (Board) arose 
from a May 1997 rating decision in which the RO denied 
service connection for a neck condition on the basis that 
there was no medical evidence showing that the Veteran had a 
current neck condition.  Within the appeal period, the 
Veteran submitted a statement in which he identified four 
private healthcare providers who had treated him for his neck 
condition.  As such, that rating decision did not become 
final.  See Muehl v. West, 13 Vet.App. 159 (1999).

After receipt of private treatment records, in a January 1999 
rating decision, the RO found that the claim for service 
connection for degenerative disc disease (DDD), C5 through 
C7, remained denied.  In September 1999, the Veteran filed a 
notice of disagreement (NOD).  A statement of the case (SOC) 
was issued in December 1999.  A supplemental SOC (SSOC) was 
issued in March 2000.  In the March 2000 SSOC, the RO stated 
that the Veteran had been notified of the January 1999 rating 
decision by letter dated February 9, 1999.  The RO pointed 
out that the normal appeal period passed on February 9, 2000; 
however, as additional evidence was received in November 
1999, an SSOC was being issued to consider that evidence.  
The RO went on to state that the veteran would have to submit 
an appeal within 60 days.  The Veteran filed a substantive 
appeal (via a VA Form 9, Appeal to the Board of Veterans' 
Appeals) in May 2000, within 60 days of issuance of the March 
2000 SSOC.

In a March 2001 decision, the Board denied service connection 
for a neck disability.  The Veteran, in turn, appealed the 
Board's decision to the United States Court of Appeals for 
Veterans Claims (Court).  In a June 2003 single-judge Order, 
the Court determined that, because VA failed to satisfy its 
section 5103(a) duty-to-notify requirements, the March 2001 
Board decision would be vacated and remanded for further 
proceedings consistent with the Order.

The Secretary appealed the Court's decision to the United 
States Court of Appeals for the Federal Circuit (Federal 
Circuit).  In an April 2004 Order, the Federal Circuit 
vacated the Court's June 2003 Order, and remanded the matter 
to the Court for further proceedings consistent with the 
Federal Circuit's decision in Conway v. Principi, 353 F. 3d 
1369 (Fed. Cir. 2004).

In a July 2004 order, the Court again vacated the Board's 
March 2001 decision denying service connection for a neck 
disability, noting that VA failed to comply with notification 
requirements.  In regard to prejudicial error, the Court 
noted that, "because the appellant has not had the 
opportunity to benefit from and react to the notices that the 
Secretary was and is obligated to provide, any conclusion by 
the Court that the appellant is not prejudiced would be pure 
speculation."  See July 2004 Order, at 4.  Judgment was 
entered by the Court in August 2004.

In March 2008, the Federal Circuit summarily affirmed the 
Court's judgment and returned the case to the Board.  In 
February 2009, the Board remanded the Veteran's claim to the 
RO, via the Appeals Management Center (AMC) in Washington, 
DC, for further action.  After completing the requested 
development, the AMC continued the denial of the claim (as 
reflected in a November 2009 SSOC) and returned the matter on 
appeal to the Board for further consideration.


FINDINGS OF FACT

1.  All notification and development actions needed to fairly 
adjudicate the claim on appeal have been accomplished.

2.  While service treatment records show that the Veteran was 
injured in connection with a motor vehicle accident in 
April 1982, no chronic neck disability was demonstrated 
during active service.

3.  A neck disability was first diagnosed after the Veteran's 
discharge from service, and the only medical opinions to 
directly address  question of whether there exists a medical 
nexus between the Veteran's current neck disability and 
service tend to weigh against the claim.


CONCLUSION OF LAW

The criteria for service connection for a neck disability are 
not met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 
2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist
	
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 
(West 2002 & Supp. 2009)) includes enhanced duties to notify 
and assist claimants for VA benefits.  VA regulations 
implementing the VCAA were codified as amended at 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009).

Notice requirements under the VCAA essentially require VA to 
notify a claimant of any evidence that is necessary to 
substantiate the claim(s), as well as the evidence that VA 
will attempt to obtain and which evidence he or she is 
responsible for providing.  See, e.g., Quartuccio v. 
Principi, 16 Vet. App. 183 (2002) (addressing the duties 
imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  
As delineated in Pelegrini v. Principi, 18 Vet. App. 112 
(2004), after a substantially complete application for 
benefits is received, proper VCAA notice must inform the 
claimant of any information and evidence not of record (1) 
that is necessary to substantiate the claim(s); (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 her or his possession that pertains to the 
claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).

The Board notes that, effective May 30, 2008, 38 C.F.R. § 
3.159 has been revised, in part.  See 73 Fed. Reg. 23,353-
23,356 (April 30, 2008).  Notably, the final rule removes the 
third sentence of 38 C.F.R. § 3.159(b)(1), which had stated 
that VA will request that a claimant provide any pertinent 
evidence in his or her possession.

VA's 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 effective date of 
the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006).

VCAA-compliant notice must be provided to a claimant before 
the initial unfavorable decision on a claim for VA benefits 
by the agency of original jurisdiction (in this case, the 
RO).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled 
American Veterans v. Secretary of Veterans Affairs, 327 F.3d 
1339 (Fed. Cir. 2003).  However, the VCAA notice requirements 
may, nonetheless, be satisfied if any errors in the timing or 
content of such notice are not prejudicial to the claimant.  
Id.

An April 2009 post-rating letter provided notice to the 
Veteran regarding what information and evidence was needed to 
substantiate the claim for service connection for a neck 
disability, as well as what information and evidence must be 
submitted by the Veteran, and what information and evidence 
would be obtained by VA.

The Board notes that the VCAA letter was sent after the 
initial rating decision, which, in this case, makes sense, as 
the rating action on appeal preceded enactment of the VCAA.  
Moreover, after issuance of the April 2009 letter, and 
opportunity for the Veteran to respond, the November 2009 
SSOC reflects readjudication of the claims.  Hence, the 
Veteran is not shown to be prejudiced by the timing of VCAA-
compliant notice.  See Mayfield v. Nicholson, 20 Vet. App. 
537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 
370, 376 (2006) (the issuance of a fully compliant VCAA 
notification followed by readjudication of the claim, such as 
in a SOC or SSOC, is sufficient to cure a timing defect).

The Board notes that the Veteran has not been provided 
specific notice regarding disability ratings and effective 
dates.  However, because the Board herein denies the claim 
for service connection, no disability rating or effective 
date is being, or will be, assigned.  Accordingly, there is 
no possibility of prejudice to the Veteran under the notice 
requirements of Dingess/Hartman.

The record also reflects that VA has made reasonable efforts 
to obtain or to assist in obtaining all relevant records 
pertinent to the matter on appeal.  Pertinent medical 
evidence associated with the claims file consists of service, 
and private treatment records, and the reports of 
February 1987, and June 2000 VA examinations.  Also of record 
and considered in connection with the appeal are various 
written statements provided by the Veteran, and by his 
representative, on his behalf.  The Board also finds that no 
additional RO action to further develop the record is 
warranted.

In summary, the duties imposed by the VCAA have been 
considered and satisfied.  Through various notices of the RO, 
the Veteran has been notified and made aware of the evidence 
needed to substantiate the claim, the avenues through which 
he might obtain such evidence, and the allocation of 
responsibilities between himself and VA in obtaining such 
evidence.  There is no additional notice that should be 
provided, nor is there any indication that there is 
additional existing evidence to obtain or development 
required to create any additional evidence to be considered 
in connection with this claim.  Consequently, any error in 
the sequence of events or content of the notice is not shown 
to prejudice the Veteran or to have any effect on the appeal.  
Any such error is deemed harmless and does not preclude 
appellate consideration of the matter, at this juncture.  See 
Mayfield, 20 Vet. App. at 543 (rejecting the argument that 
the Board lacks authority to consider harmless error).  See 
also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 
1998).

II.  Analysis

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by service.  
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service 
connection may be granted for any disease diagnosed after 
discharge from service when all the evidence, including that 
pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d).

Considering the claim for service connection in light of the 
above, the Board finds that the claim must be denied because 
the preponderance of the evidence establishes that the 
criteria for service connection for a neck disability are not 
met.

Service treatment records reflect that the Veteran sustained 
injuries in a motor vehicle accident in April 1982.  He was 
riding as a passenger and was thrown against the dashboard 
and windshield and later complained of neck pain.  
Examination revealed tenderness at C4-5.  X-rays of the 
cervical spine showed no evidence of misalignment or fracture 
and interspaces appeared maintained.  Service examination 
reports from September and October 1984 are negative for any 
signs, symptoms, or diagnoses of a neck disorder.  The 
Veteran noted in an October 1984 Report of Medical History 
that he did not have any swollen or painful joints; 
arthritis, rheumatism, or bursitis; or recurrent back pain.  
A December 1984 separation examination report revealed no 
significant abnormality of the neck or upper extremities.

On VA examination in February 1987, the Veteran complained of 
generalized aching in the neck with occasional numbness in 
the fingers of the right hand.  The cervical spine was 
nontender.  Range of motion showed forward flexion to 65 
degrees, backward extension to 45 degrees, lateral flexion to 
30 degrees and rotation to 30 degrees.  X-rays of the 
cervical spine revealed no soft tissue, joint or bony 
abnormality.  The clinical impression was cervical strain.

Private medical treatment records dated in April 1995 show 
the Veteran was evaluated for complaints of left neck, 
shoulder and arm discomfort including some numbness in the 
lower arm and hand on the radial aspect.  The examiner 
reported the Veteran was not aware of any injury related to 
these symptoms.  The examiner also reported the Veteran's 
history was significant for a low back injury 10 years ago, 
but that it was totally unrelated to his present symptoms.  
The clinical assessment was questionable neuritis.

In a medical opinion dated in May 1995, neurologist M.G.D., 
M.D. stated that he evaluated the Veteran for left arm 
numbness.  X-rays showed some degenerative changes at C5 
through C7.  There was a foraminal encroachment at both 
levels more on the left than right.  The Veteran denied any 
injury to the neck or arm.  The clinical impression was 
double crush syndrome involving a left C6 radiculopathy and 
minimal carpal tunnel syndrome.  He had radiating 
paresthesias, absent biceps and brachial radialis reflexes, 
and mild weakness and denervation in the biceps all 
supporting the C6 radiculopathy.

In a statement dated in September 1996, the Veteran indicated 
that recently he developed "numb spots" in his left arm and 
sought treatment from a neurologist who told him that he was 
developing arthritis in his neck.  The Veteran stated that 
since he had suffered no injuries of even a minor nature 
since service, his present symptoms could only have been 
caused by the accident.

Private treatment reports from Highland Hospital show the 
Veteran underwent physical therapy from May 1998 to December 
in 1998.

Records from R.A.S., M.D. show the Veteran was evaluated for 
chronic neck ache and episodic arm symptoms between June and 
October 1999.  Dr. S. noted the Veteran's injury in service 
stating that he went on to have chronic low level neck pain.  
The examiner recommended magnetic resonance imaging (an MRI) 
because of the Veteran's previous significant trauma and 
residual symptoms.  The MRI showed C5-6 disc spur complex to 
the left, which narrowed the central canal and foramen.  
There were similar but less severe findings at C6-7 to the 
right.  There were no abnormal signals in the spinal cord.  
The clinical impression was history of myeloradiculopathy.  A 
letter from C. B.-C. dated in November 1999 indicates that 
she did not examine the Veteran but that he was evaluated 
initially by a nurse practitioner and subsequently referred 
to Dr. S.

On VA examination in June 2000, the Veteran's history of 
injury in service was noted in detail.  The Veteran reported 
that following the accident he continued to complain of 
tenderness in the neck area and that subsequent X-rays were 
always negative.  He did well following service discharge in 
1985 until 1996 when he was bending over at work and noticed 
some numbness in the left arm.  He was referred to a 
neurologist who did a variety of EMG studies, which indicated 
possible neuropathy.  In 1997, he had a recurrence of 
numbness in his left arm as well as some spotty numbness in 
portions of his right upper extremity.  An MRI was 
significant for a C5-6 disc spur complex to the left, which 
now is a central canal and foramina.  There were similar but 
less severe findings at C6-7 to the right.  There were no 
abnormal signals to the spinal cord.  The Veteran reported 
that he had been seen intermittently between 1997 and 1999, 
but further diagnosis or therapeutic procedures had not been 
done.

The Veteran had no neck pain but did have weakness, 
stiffness, fatigability and lack of endurance.  He was not 
presently under treatment for his neck condition.  He stated 
that he did not have any flare-ups of his neck condition and 
did not use crutches, a brace or a cane.  There was no 
history of surgery.  The only reported injury was that of the 
motor vehicle accident in 1982.  The Veteran worked as a 
computer engineer and stated that bending over the computer 
led to some fatigue in his neck after a period of several 
hours.  He did not mention any disabilities as far as daily 
activities were concerned.

On objective examination, neck flexion was to a full 30 
degrees, backward extension was to approximately 20 degrees, 
lateral flexion was to 40 degrees and rotation was to 50 
degrees.  The diagnosis was per MRI, C5-6 disc spur complex 
to the left with narrowing of the central canal and foramina 
similar to the less severe findings on C6-7 to the right.  
The examiner opined that based on the fact that there were no 
abnormalities initially or for the next two years while the 
Veteran was in the service, and also based on the fact that 
radiculopathy symptomatology did not surface until 1996, he 
could not say with any degree of certainty that the Veteran's 
current cervical spine condition was related to the motor 
vehicle accident in 1982.

The evidence of record clearly establishes that the Veteran 
has a current neck disability.  However, the record simply 
fails to establish that his neck disability is medically 
related to any incident of service.

As indicated, service treatment records show that the Veteran 
was evaluated for neck pain following a motor vehicle 
accident in April 1982.  However, such problems apparently 
were acute and transitory in nature and resolved with 
treatment, as there are no subsequently dated medical records 
on file reflecting further complaints, evaluation or 
treatment during the remaining months of service.  Medical 
examination reports from September and October 1984 indicate 
that the Veteran had a normal neck.  Additionally, the report 
of the Veteran's 1984 separation examination is negative for 
any residual disability.  Thus, in this case, the medical 
evidence does not show that the Veteran had a chronic neck 
disability during active military service.

As reflected by various medical records The Veteran has 
asserted a continuity of his neck symptoms since his in-
service accident.    In a June 1999 letter, Dr. S noted that 
the Veteran suffered an accident in the military in 1985, 
after which he had a chronic low level neck ache.  
Additionally, the Veteran told a VA examiner in June 2000 
that he continued to complain of tenderness in his neck area 
after his in-service accident.  

The Board recognizes that the Veteran he is competent, as a 
layperson, to report that about which he has personal 
knowledge.  See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 
(1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).   
Here, the Veteran's assertions of continuity of symptoms, 
while competent, are simply not credible.  Although the 
Veteran told doctors in June 1999 and June 2000 that he had 
neck pain since his April 1982 accident, he recorded on his 
October 1984 Report of Medical History that he did not have 
any swollen or painful joints; arthritis, rheumatism, or 
bursitis; or recurrent back pain.  The Board additionally 
notes that the Veteran's first recorded complaints of neck 
strain appear in a February 1987 VA examination report-two 
years after the Veteran left active duty.  The lack of 
recorded complaints following the in-service accident through 
two years after the Veteran's separation from active duty 
coupled with his contradictory assertions make his statements 
regarding continuity of symptomatology not credible.

The Board further notes that there is no medical opinion 
evidence to support a finding that there exists a medical 
nexus between current neck disability and service.  Post 
service, the record reflects a diagnosis of cervical strain 
in February 1987; however, the physician who rendered the 
diagnosis did not indicate that the cervical strain was 
related to the Veteran's active duty.  Significantly, the 
only medical opinions to directly address the medical nexus 
question, collectively, tend to weigh against the claim.  In 
April 1995, the Veteran's private physician stated that the 
Veteran's injury in service was totally unrelated to his 
current neck symptoms.  Also, the VA examiner in June 2000 
noted that no abnormalities were seen initially or for the 
next two years while the Veteran was in service and that the 
radiculopathy symptoms did not surface until 1996.  The 
examiner opined that he could not say with any degree of 
certainty that the Veteran's neck disorder was related to the 
motor vehicle accident in 1982.  Thus, the February 1987 and 
June 2000 opinions do not support the claim, and the 
April 1995 opinion weighs against the claim.  

The Board further points out that neither the Veteran nor his 
representative has presented  n actual, existing medical 
opinion that even suggests that there exists a medical nexus 
between the Veteran's current neck disability and the 
Veteran's military service.  The Board notes that the 
June 1999 letter from Dr. S. includes a notation that the 
Veteran suffered an accident in the military in 1985, after 
which he had a chronic low level neck ache.  However, this 
notation was made only in the history portion of the letter, 
and no further comment by Dr. S. was provided.  Thus, careful 
examination of the letter reveals that Dr. S. was not 
expressing a medical nexus opinion, but merely recounting the 
Veteran's own reported history of his in-service accident and 
alleged continuity of symptoms.  As such, this notation, 
without more, simply does not constitute competent evidence 
of the required nexus.  See LeShore v. Brown, 8 Vet. App. 
406, 409 (1995)) (evidence that is simply information 
recorded by a medical examiner, unenhanced by any additional 
medical comment by that examiner, does not constitute 
'competent medical evidence, and a bare transcription of a 
lay history is not transformed into "competent medical 
evidence" merely because the transcriber happens to be a 
medical professional medical professional). As such, the fact 
that a veteran's own account of the etiology of his 
disability was recorded in his medical records is not 
sufficient to support a claim for service connection.  Id.

Finally, as for any direct assertions by the Veteran and/or 
his representative that there exists a medical nexus between 
current disability and the Veteran's military service, such 
evidence provides no basis for allowance of the claim.  As 
indicated above, the matter on which this claim turns is 
within the province of trained medical professionals.  
See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).  As the 
Veteran and his representative are not shown to be other than 
laypersons without the appropriate medical training and 
expertise, neither is competent to render a probative 
(persuasive) opinion on such a medical matter.  See, e.g., 
Bostain v. West, 11 Vet. 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").  Hence, the lay assertions in this 
regard have no probative value.

For all the foregoing reasons, the Board finds that the claim 
for service connection for a neck disability must be denied.  
In reaching this conclusion, the Board has considered the 
applicability of the benefit-of-the-doubt doctrine.  However, 
as the preponderance of the evidence is against the claim, 
that doctrine is not applicable.  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

Service connection for a neck disability is denied.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs