Citation Nr: 1109907 Decision Date: 03/14/11 Archive Date: 03/24/11 DOCKET NO. 07-39 501 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for a chronic neck disorder. 2. Entitlement to service connection for a headache disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from January 1970 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the VARO in Waco, Texas, that denied entitlement to the benefits sought. FINDINGS OF FACT 1. The competent and probative evidence of record preponderates against a finding that the Veteran has a neck disability related to active military service or to any incident thereof, and any current cervical arthritis was not manifest within the first year following service discharge. 2. Any current headaches are not shown to be related to active military service or to any incident thereof. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic neck disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). 2. The criteria for service connection for headaches are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) codified in part at 38 U.S.C.A. §§ 5103 and 5103A, and implemented in part at 38 C.F.R. § 3.159 amended VA's duties to notify and assist claimants in developing information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b), when VA is in receipt of a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) information and medical evidence that is necessary to substantiate the claim; (2) what portion of the information and evidence VA will seek or that VA will obtain; and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. Those elements are: (1) Veteran status; (2) the 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that there has been essential compliance with the mandates of the VCAA with regard to the disabilities at issue. In a letter dated in February 2007, the Veteran was provided with notice of the information and evidence needed to substantiate his claims. He was also told what evidence VA was responsible for obtaining and what evidence VA would assist him in obtaining. With regard to the duty to assist the Veteran, under the provisions of 38 U.S.C.A. § 5103A, VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA has obtained the service treatment records and VA and private medical records. The Veteran was accorded a VA spinal examination in May 2008. Additionally, his case was referred to a VA neurologist for the purpose of obtaining an opinion, based on a review of the entire claims file, as to whether it is at least as likely as not that the Veteran's current headaches and neck problems are related to his active service, particularly his involvement in a motor vehicle accident in service in April 1970. Also, the Veteran provided testimony in his own behalf in March 2008 before a Decision Review Officer at the RO. A transcript of the proceedings is of record and has been reviewed. The Veteran was given the opportunity to provide testimony before a Veterans Law Judge in April 2010, but he failed to report. The Board therefore finds the Veteran has had ample opportunity to participate effectively in the processing of his claim by VA and VA has done everything possible to assist him in developing his claims. Accordingly, the Board finds VA has satisfied its duties to notify and assist the Veteran in developing evidence pertinent to the claims. Adjudication of the claims at this juncture, without directing or accomplishing any additional notification or development action poses no risk of prejudice to the Veteran. Barnard v. Brown, 4 Vet. App. 384, 394 (1993). Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was occurred coincident with service or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303 (a). For the showing of chronicity in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service (or than the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Service connection may also be granted for a disability first diagnosed after discharge, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, when a Veteran who has served ninety (90) days or more on active service during a period of war or after December 31, 1946, certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree of 10 percent or more within one year following service discharge. 38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a current 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Holton v. Shinseki, 557 F.3d 1362, F.3d, 1362 (Fed. Cir. 2009). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154 (a). The Veteran does not argue and the record does not show that the claimed disabilities are the result of participation in combat and therefore the combat provisions of 38 U.S.C.A. § 1154 (b) do not apply. Competency is a legal concept determining whether medical or lay evidence may be considered. In other words, this means whether the evidence is admissible as distinguished from weight and credibility. The former determines whether testimony should be heard and considered by the trier of fact, while the latter is a factual determination made as to the probative value of the evidence after the evidence has been submitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the claimant has specialized education, training or experience. Lay evidence is competent evidence provided by a person who has knowledge of facts or circumstances, and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Court, as fact finder, must determine the probative value or weight of the medical evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary of VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Factual Background and Analysis The Board has carefully reviewed all the evidence in the claims folder. The Board has an obligation to provide reasons and bases supporting its decision. There is no need to discuss in detail all the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380 (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 should 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 discuss its reasons for rejecting evidence favorable to the Veteran). The Veteran was involved in a motor vehicle accident in service in April 1970. A skull series was negative and there were no focal neurologic signs. There were no complaints or findings with regard to the neck or headaches during the remainder of service. At the time of a February 1974 general medical examination, there was no reference to complaints of findings pertaining to headaches or a neck disorder. Post service complaints and documentation of headaches and a neck disability date from the early 2000's, a time many years following service discharge. Gary L. Tunell, M.D., stated in a November 2007 communication that he had seen the Veteran in March 2005 and at the present time. The Veteran showed him pictures of the vehicular accident in 1970 and the physician opined that it "is quite likely that developed a whiplash injury." The Veteran showed the physician copies of his VA outpatient records. The physician opined that "based on the patient's progressive symptoms of neck pain and occipital headache in addition to abnormally brisk reflexes on his current exam that has developed a cervical myelopathy. I think it is more likely than not that this is secondary to the motor vehicle accident that occurred in 1970, although this is admittedly 37 years ago. The patient denies any subsequent trauma to his cervical spine that would be the source of these symptoms." In May 2008, the Veteran was accorded a VA spinal examination. A contrary opinion was expressed. The health care professional indicated that the claims file, including the private physician's opinion cited above, was available to him for review. The individual noted that the exit examination reported reflected "no mention of neck pain, headaches, or loss of consciousness." He added that regardless of what the private physician says, it is his opinion that the current degenerative disc disease "is less likely than not related to the military. There is absolutely no way of knowing that after 30 years that his degenerative disease of the cervical spine is linked to his motor vehicle accident in 1970." The case was then referred to a VA neurologist who was to review the file and express an opinion as to whether it is at least as likely as not that any current headaches or neck disability are related to the Veteran's active service, particularly the motor vehicle accident in April 1970. In November 2010, the Chief of the Neurology Service at the Central Arkansas Veterans Health Care System stated that he had reviewed the Veteran's record including his active duty records. He was aware that the Veteran claimed his disability was a result of a motor vehicle accident in April 1970 when he was rear-ended by a truck while stopped at a traffic light. The photos of the vehicle the Veteran was driving at the time revealed that the impact occurred at fairly high velocity, with substantial damage done to his car. "Claimant's recollection of the accident (while they are not documented in his military medical records) suggests that he suffered a concussion, with both retrograde and anterograde amnesia. When seen by the emergency room physician (signature illegible), at Keesler AFB in Mississippi that same day (time not recorded), he was noted to have suffered a 'brief loss...', which I interpret as brief loss of consciousness, thereby confirming my suspicion of concussion. The physician noted 'no organic signs. No focal neuro signs.' Skull series were done and were 'negative', i.e. normal. He was cleared to return to duty, and advised to return if 'symptoms persist.' Cervical spine X-rays were not done, presumably because claimant did not complain of neck pain (though that is not documented in the record). Based on the very brief medical records relating to this incident, it appears claimant did not have significant pathology of the cervical (neck) spine. Skull series are X-rays of the skull. They are totally inadequate in documenting a concussion, and only reveal a skull fracture or severe bleeding which would have caused a shift of the pineal gland, and midline structure which is normally calcified in adults (and this can be seen on X-rays). CT scans were not widely used in the early 70's, and may not have been available at Keesler AFB. The absence of neck X-rays makes the presumptive diagnosis of whiplash made by Dr. G.L.T. in 2005 problematic. Flexion and extension (forward and backward bending) views of the cervical spine would have shown abnormalities in neck posture due to muscle spasms, even if no fractures were seen. Claimant states in his letter of March 28, 2008, that 'I had headache but how frequently I do not remember, also for a long time had trouble with concentration, eye pain, and weakness or lack of energy.' Although these symptoms are consistent with post concussion syndrome, one study done on 145 patients in Belfast, Northern Ireland, and published in Lancet in 1977, found 50 percent of patients were symptom free 6 weeks after concussion, 40 percent had a few symptoms, and only 2 percent had 6 or more symptoms. Another study I am familiar with noted that only about 3 percent of patients who had a concussion related to a motor vehicle accident had any symptoms after one year. My perusal of claimant's military records between April 1970 and his discharge reveal no complaints or headache or back pain, most tellingly a report of medical history dated 11\14\1973 and signed by [an Air Force captain]. This document has a long check list of review of systems, where the following symptoms are marked as 'yes': wearing glasses; eye trouble; ear, nose and throat trouble; sinusitis; hay fever. Specifically, the following responses to 'have you ever had or have you now?' 'questions are marked as 'no': frequent or severe headaches; dizziness or fainting spells; head injury; recurrent back pain; loss of memory or amnesia. The question here does not ask any questions regarding neck pain or weakness. "The absence of symptoms of post concussion syndrome 3 1/2 years after the incident makes causal relationship of claimant's current symptoms to trauma which occurred over 40 years ago unlikely. I therefore agree with the medical opinion that the claimant's current symptomatology is less likely than not (less than 50 percent probability) related to events that occurred during his military service." The Board acknowledges the Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes through his senses. Layno v. Derwinski, 6 Vet. App. 465, 470 (1994); see also Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is not accompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Lack of contemporaneous medical records does not serve as an "absolute bar" for a service connection claim); Barr, 21 Vet. App. at 303 (The Board may not reject as not credible any uncorrobative statements merely because the contemporaneous medical evidence is silent as to complaints of treatment for the relevant condition or its symptoms). Although the Veteran asserts that he has had problems with his neck and with headaches ever since the vehicular accident in service in April 1970, after review of the entire lay and medical evidence of record, the Board finds that the weight of the evidence reflects that he did not experience continuous symptoms of neck problems or headaches for years after service separation. The Board concludes that his assertion of continuous symptomatology since active service, while competent, is not credible. His recently reported symptoms and difficulties are not consistent with the contemporaneous lay and medical evidence of record. The Board is aware of the November 2007 statement from Dr. T. However, that statement was based on history given by the Veteran and not on review of the entire claims file. The physician had copies of VA records, but there is no indication that he had access to the entire claims folder. More probative value is given to the report of examination by a VA health care professional in May 2008. That individual had the entire claims file available for review. Additionally, in November 2010, a VA neurologist had access to the entire claims file, to include the service treatment records. He opined that, based on review of the entire claims file, the absence of symptoms of post concussion syndrome 3 1/2 years after the incident made the assertion of a causal relationship of current symptoms to trauma that occurred over 40 years ago "unlikely." He opined that any current symptomatology was less likely than not related to the incident that occurred during the Veteran's military service. It is expected that statements made in conjunction with current examination are truthful because they are made with the intent of obtaining treatment or evaluation for current symptoms. The neurologist noted that at the time of report of medical history made in November 1973, the Veteran denied ever having had or having recurrent severe headaches, head injury, dizziness of any exposed chronic recurrent back pain, or loss of memory or amnesia. No reference was made to neck pain or weakness. The neurologist made specific reference to the notation by the private physician that the Veteran had whiplash and that there was an absence of neck X-ray studies done while in service. He therefore stated that the absence of these studies made the presumptive diagnosis of whiplash made by the physician "problematic." The neurologist also referred to a review of the military records between the time of the accident in April 1970 and the time of the Veteran's discharge from service and he noted that the records showed no indication of complaints of abnormalities. The neurologist provided a comprehensive discussion as to why he believes that the Veteran's current symptoms are less likely than not related to his military service. In view of the foregoing, the Board finds that the more persuasive evidence is against a finding of continuity of symptoms since service separation with regard to any current neck and headache difficulties. Accordingly, the award of service connection based on chronicity and continuity of symptomatology is not for application. 38 C.F.R. § 3.303; see Savage v. Gober, 10 Vet. App. 488, 495 (1997). Accordingly, the appeal is denied. ORDER Service connection for a chronic neck disability is denied. Service connection for headaches is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs