Citation Nr: 1118924 Decision Date: 05/17/11 Archive Date: 05/26/11 DOCKET NO. 09-21 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1992 to December 2004. He received the Bronze Star Medal, Army Commendation Medal, and Combat Infantryman Badge This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Buffalo, New York. In that decision, the RO denied entitlement to service connection for a compression fracture of the cervical spine. FINDING OF FACT The Veteran had neck pain and stiffness in service and there is post-service continuity of symptomatology demonstrating a nexus between a current neck disability and the in-service symptoms. CONCLUSION OF LAW The criteria for service connection for a neck disability are met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). As the Board is granting the claim for service connection for a neck disability, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2010). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b) (West 2002); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). VA medical records reveal that the Veteran has been diagnosed as having various neck disabilities. For example, a March 2009 VA examination report indicated a diagnosis of advanced degenerative disc disease of the cervical spine, status post healed compression fracture of C-5. Thus, current neck disabilities have been demonstrated. There is also evidence of in-service neck injury and of a continuity of symptomatology linking those symptoms to the current neck disability. The Veteran has reported and his service treatment records reflect that he was treated for neck pain in June 1995 following a parachuting accident in which he was dragged 30 feet. X-rays of the neck revealed a possible muscle spasm and he was diagnosed as having a sternocleidomastoid strain. He was subsequently treated for neck pain, stiffness, and pressure in November 1996 and December 2003 and he reported a 20 month history of neck pain during the December 2003 evaluation. The Veteran's June 2005 service connection claim, VA examination reports dated in September 2005, and VA treatment records dated from October 2006 to January 2007 indicate that he reported neck pain and intermittent numbness of the left upper extremity. Examinations revealed limitations in rotation and side bending of the neck due to forward head posture and a painful and tender mid-cervical spine. MRIs revealed disc abnormalities, spinal canal stenosis, neural foraminal narrowing at the C5-C7 levels, a compression fracture of the C-5 vertebral body, kyphosis of the lower cervical spine, and an annular bulge at the C4-5 intervertebral level. Diagnoses of degenerative disc disease of the cervical spine with occasional left upper extremity radiculopathy, arthritis, and an old compression fracture at C-5 were provided. A July 2008 VA examination report indicates that the Veteran reported neck pain that radiated to the left shoulder and arm. The pain began following the in-service parachuting accident and had gradually increased in severity in the years since that time. He had difficulty with lifting, pushing, and pulling, particularly with repetitive activity of the left upper extremity. Neck pain was also caused by sitting and traveling in a car and he had difficulty sleeping due to pain. Flare ups of neck pain occurred daily with activity. Examination revealed limited range of neck motion with pain at the extremes of motion. The Veteran was diagnosed as having advanced degenerative intervertebral disk disease of the cervical spine secondary to a compression fracture at C-5, spinal canal stenosis, and marginal osteophytes at the C4-C7 levels. The March 2009 VA examination report reveals that the Veteran reported progressively worsening neck pain ever since the in-service neck injury in 1995. The pain occurred constantly on a daily basis, radiated to the shoulders, and was aching in nature. Flare ups occurred on a weekly basis and were caused by sleeping at the wrong angle and prolonged driving. He also experienced decreased motion of the cervical spine, stiffness, and spasms. Examination of the neck revealed guarding, pain with motion, and limitation of motion of the cervical spine. A diagnosis of advanced degenerative disc disease of the cervical spine, status post healed compression fracture of C-5 was provided. The nurse practitioner who conducted the March 2009 VA examination opined that the currently diagnosed compression fracture was not likely ("less likely as not") caused by or a result of the in-service parachuting injury in 1995. She reasoned that X-rays of the cervical spine taken after the in-service injury were negative for any fractures and there appeared to be minimal effort during range of motion testing conducted during the VA examination. Also, while there was evidence of degeneration of the cervical spine and herniation after service, there was no evidence of any neck disability other than a neck spasm while in service. The March 2009 opinion is entitled to little probative weight because the examiner only discussed the evidence of a neck spasm in service, but did not acknowledge or discuss the diagnosed sternocleidomastoid strain in service or the treatment for ongoing neck pain, stiffness, and pressure in service following the 1995 injury. Also, it does not appear as if the examiner considered the Veteran's reports of progressively worsening neck symptoms in the years since service in formulating her opinion. A medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Furthermore, the examiner's opinion only addressed the diagnosed compression fracture and no opinions were provided as to the etiology of any of the other currently diagnosed neck disabilities. The Veteran is competent to report symptoms of his neck disability, such as pain, as well as a continuity of symptomatology. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Furthermore, his reports are generally consistent with the evidence of record and there is nothing to explicitly contradict them. The contemporaneous record supports the Veteran's reports of ongoing neck symptoms after service. Therefore, the Board finds that his reports are also credible. The weight of the evidence reflects that the Veteran experienced a neck injury in service, he has been diagnosed as having a current neck disability, and there has been a continuity of symptomatology since service. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for the currently diagnosed neck disability have been met. 38 U.S.C.A. § 1110, 5107(b); 38 C.F.R. § 3.303. ORDER Entitlement to service connection for a neck disability is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs