Citation Nr: 1031268 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 07-14 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a chronic condition to account for neck pain. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 Regional Office (RO) in Winston-Salem, North Carolina rating decision, which denied the claim on appeal. The Veteran had a hearing before the undersigned Veterans Law Judge in March 2009. A transcript of that proceeding has been associated with the claims file. The Veteran's case was remanded by the Board for additional development in May 2009. The case is once again before the Board. The Board notes that the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for passive aggressive personality disorder, claimed as nervousness, headaches, and tension, was also remanded in the Board in May 2009 for the issuance of a statement of the case (SOC) on the issue. In that regard, a November 2009 rating decision found that new and material evidence had been received with respect to tension headaches, and that decision also granted service connection for tension headaches. The RO appears to have considered this a full grant of the claim on appeal as to the tension headaches. A Statement of the Case dated in December 2009 further determined that new and material evidence had not been submitted with respect to the claim of service connection for a personality disorder, claimed as nervousness. The Veteran did not subsequently perfect an appeal of that issue by submitting a VA Form 9 or its equivalent. Thus, this matter is not presently on appeal. FINDING OF FACT The preponderance of the evidence of record does not establish that the Veteran has a current diagnosis of a chronic condition to account for neck pain that is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A chronic disability to account for neck pain, was not incurred in or aggravated by service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, the Department of Veteran's Affairs (VA) has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in March 2006 and July 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The July 2009 letter explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. VA medical records are in the file. In that regard, the Board notes that the May 2009 Board remand requested that additional medical records be obtained and associated with the claims file. Such development was completed. Records from the Social Security Administration (SSA) have also been obtained from the Veteran and associated with the claims file. While the Board acknowledges that all SSA records may not be included in the claims file, the Board finds that such records are not necessary to the adjudication of the case. As will be discussed, the SSA administrative law decision found that after March 31, 1986, the Veteran's neck pain was not severe and, indeed, the Veteran acknowledges that after that time he has not experienced significant neck pain. As such, the Veteran is not prejudiced by the Board reaching a decision in this matter. Private medical records identified by the Veteran have also been obtained, to the extent possible. In that regard, during the Veteran's March 2009 Board hearing he noted that he sought treatment after service for the problems he considers to include his neck; however, the records were unavailable. The Veteran's service treatment records are in the claims file. The Board acknowledges that during the March 2009 Board hearing, the Veteran questioned whether all service treatment records had been obtained and submitted additional treatment records. These records were essentially duplicative of records already in the file and there is no objective evidence of additional outstanding service treatment records. The Veteran has not otherwise identified records that he felt would be of assistance in adjudicating his claim or otherwise requested that VA obtain additional records. 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 claims, as defined by law. See 38 C.F.R. § 3.159(c)(4). VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As noted above, this case was remanded in May 2009, in part, to afford the Veteran a VA examination for his neck. In compliance with the remand instructions, the Veteran was afforded a VA examination in August 2009. At the examination, the examiner considered the Veteran's claims of experiencing neck pain and spasms and becoming addicted to Valium for the neck spasms. The examiner concluded, however, that the Veteran's current neck complaints were less likely than not related to the complaints for which the Veteran received treatment in service. As will be discussed in greater detail below, the examiner's opinion was based on review of the claims file and available medical records, the Veteran's reported history, his current symptoms, a physical examination, and contemporaneous x-rays. The examiner provided a sufficient rationale for the expressed opinion. The Board, therefore, finds the VA examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2009). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). The above provision is inapplicable in this case, as there is no competent evidence of a diagnosis of arthritis of the cervical spine at any time during service or within one year of service, nor does the Veteran so allege. To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran claims that he developed anxiety problems in service that were associated with muscle pain and spasms in his neck and tension headaches, for which he was prescribed Valium, and that the neck problems continued after service for some years. The Veteran concedes that he does not have significant neck problems at this time. The Veteran's service treatment records indicate that he had normal spine and psychiatric examinations on induction and separation. At separation, the Veteran reported that he was in good health and denied a history of frequent or severe headaches or any other persistent medical problems. In November 1972, however, the Veteran reported feeling highly nervous, with headaches, dizziness, heart racing, and difficulty sleeping. The examiner's impression was anxiety and he was prescribed Valium. In February 1973, the Veteran was seen for tension headaches and prescribed Fiorinal and Valium. The Veteran was seen again in March 1973 and was provided more Valium and Fiorinal. In April 1973, the Veteran reported headaches in the back of his neck. The examiner noted the Veteran's previous treatment for tension headaches with Valium and Fiorinal. The examiner refilled the Veteran's Fiorinal. Later in April 1973, the Veteran's Valium was refilled. Shortly after leaving service, the Veteran brought a claim for service connection for a nervous condition and headaches. During the subsequent VA examination in August 1973 the Veteran noted a primary complaint of headaches and intermittent nervousness, but failed to report any associated neck pain or spasms. In June 1978, the Veteran was examined again at which time he reported ongoing treatment for headaches and anxiety reaction. The Veteran's current symptoms included headaches, muscle spasms from the back of the neck down the back, and a nervous condition. The examiner diagnosed headaches of questionable etiology and anxiety reaction. An August 1991 SSA administrative law decision found that the Veteran had a substance abuse history and withdrawal symptoms of anxiety, depression, tinnitus, headaches, and neck pain that constituted "severe" impairments from July 10, 1981 to March 31, 1986, but not thereafter. The administrative law judge noted that prior to March 31, 1986, the Veteran reported Valium dependency and after stopping Valium use he experienced tinnitus, anxiety, depression, nonradiating headaches, and neck cramps partly relieved by Fiorinal and Tylenol. After March 31, 1986, however, the Veteran reported no further problems with neck cramps and, as such, was not a "severe" impairment after March 31, 1986. In August 2009, the Veteran was afforded a VA examination for his neck. The examiner noted review of the claims file and medical records. At that time, the Veteran reported that he experienced headache onset in service, accompanied by his neck drawing backwards. He received medical treatment and was prescribed Valium and Fiorinal for six months. The Veteran continued treatment with this medication through a private physician after service. The Veteran asserted that he became addicted to the Valium and when he stopped using the medication he was hospitalized for several days. The Veteran reported daily, moderate flare-ups of neck problems, specifically neck stiffness and muscle spasms, lasting for several hours. On examination, the range of motion of the Veteran's cervical spine was 0 to 50 degrees of forward flexion, 0 to 30 degrees of extension, 0 to 40 degrees of left and right lateral flexion, 0 to 40 degrees of left lateral rotation, and 0 to 35 degrees of right lateral rotation. There was no decreased range of motion on repetition. There was no objective evidence of pain, but there was evidence of guarding. Contemporaneous x-ray did not show any bony abnormality of the cervical spine. The examiner diagnosed neck pain with no pathological diagnosis. Based on an interview of the Veteran, review of the claims file and medical records, diagnostic testing, and physical examination, the examiner concluded that it was less likely as not that the Veteran's current neck problems were caused or aggravated by the headaches in the neck or anxiety disorder for which he received Valium treatment. As to rationale, the examiner noted that while the Veteran was seen on multiple occasions for headaches and other problems in service that on only one occasion was there any notation involving the Veteran's neck. Significantly, the sole service treatment record noting the neck did not note any abnormalities found on examination with respect to the neck. Moreover, the Veteran's discharge physical did not mention neck problems. Finally, after service the Veteran was afforded a VA examination in August 1973 for his claim for nervousness and headaches. The record does not reflect that at that time the Veteran complained of neck problems. The Veteran was also afforded a VA examination in August 2009 with the same examiner for his headaches. At that time, the examiner diagnosed tension headaches and opined that they were most likely caused by or a result of the headaches that the Veteran experienced in service. The examiner noted multiple in- service complaints of and treatment for anxiety and headaches and that his current headaches most resemble tension headaches, which was the type of headache he was diagnosed with in the military. As such, the current headaches were most likely a continuation of those in the military. As noted above, the Veteran subsequently was service-connected for his tension headache disorder in November 2009. The threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the Veteran's sincere belief in his claim of a cervical spine disability that began in military service and was exacerbated by his dependence on Valium, as explained above, the competent medical evidence of record does not show the Veteran to have a current neck disability. Moreover, the Board notes that the Veteran reported during the March 2009 Board hearing that his neck problems had largely resolved decades previously, after overcoming his addiction to Valium. Thus, there may be no service connection for this claimed disability on a direct basis. Moreover, even were the Veteran to have an underlying disability of the neck, his claim would still fail as he has not established the required nexus between any current neck problems and some incident of military service. For the Veteran to succeed on his claim, there must be competent evidence that his current neck problems are related to his military service. See Savage v. Gober, 10 Vet. App. 488, 495- 98 (1997). Such evidence is lacking here, and, in fact, the only relevant medical opinion determined that a relationship between any current neck problems and his military service was unlikely, to include any associated psychiatric or headache disorders. The Board finds the August 2009 VA examiner's opinion credible and probative, including a sufficient rationale for the stated conclusion. The opinion was based on an interview of the Veteran, review of the claims file and medical records, and physical examination and diagnostic testing. The examiner specifically concluded that it was less likely as not that any current neck problems were related to the Veteran's in-service psychiatric and headache problems. The examiner noted that the Veteran had multiple treatments for psychiatric and headaches, but that in only one instance had he mentioned his neck. At that time, moreover, no specific neck problems were noted, other than a headache in the neck. Nor were neck or psychiatric problems noted on separation from service. The Board has considered the August 1991 Notice of Administrative Law Judge Decision from the SSA. Initially, the Board notes that as there are significant differences in the definition of disability under the SSA and VA systems, SSA determinations are not binding on VA. Holland v. Brown, 6 Vet. App. 443, 448 (1994). However, since there are also significant similarities between the two systems, the Board must provide the basis for disagreeing with or not accepting a finding of disability by the SSA. Id. In this case, the Board acknowledges that the SSA decision found that the Veteran's problems, including anxiety, headaches, and neck pain, were severe impairments between July 30, 1981 and March 31, 1986. The decision, however, relates only to the period noted immediately above and does not address the existence of a disability during the applicable appellate time period or that the etiology of any disability began during the Veteran's military service. Significantly, the SSA decision found that the Veteran did not have a "serious" impairment of the neck after March 31, 1986, or approximately two (2) decades prior to the filing of the Veteran's claim. As noted, this is consistent with the Veteran's own recent admission that his neck complaints had largely resolved. The Board acknowledges the Veteran's assertions that he developed neck problems at the same time as developing anxiety problems and headaches. Certainly, the Veteran can attest to factual matters of which he had first-hand knowledge and symptoms experienced through the senses, and his testimony in that regard is entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In general, however, a layperson is not competent to diagnose a medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a diagnosis of a neck disability or opining as to a link between neck problems and psychiatric problems or headaches. Thus, the Veteran's statements regarding any such diagnosis or link are much less probative than the conclusions of the VA health care specialist discussed above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). First and foremost, service connection requires a diagnosis of a current disability. In this case, the greater weight of the evidence is against finding that he has a current disability. Without a current diagnosis, service connection is not warranted. Moreover, the most probative evidence of record is against finding any relationship between the Veteran's current neck problems and his psychiatric problems and headaches. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claim. As such, the benefit- of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a chronic condition to account for neck pain is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs