Citation Nr: 1141822 Decision Date: 11/09/11 Archive Date: 11/21/11 DOCKET NO. 08-39 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for residuals of a cervical spine injury, to include upper bilateral extremity nerve damage. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from June 1970 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied service connection for residuals of a neck injury. The issue was recharacterized to better reflect the evidence of record and the allegations of the Veteran. In a January 2011 decision, the Board denied entitlement to service connection for a lumbar spine disability; this decision is final, and no further question remains on appeal with respect to that issue. The issue of service connection for a cervical spine disability was remanded for further development. The Veteran requested an RO hearing, and such was scheduled. The Veteran, however, failed to report for the hearing without explanation or attempt to reschedule. The request is therefore considered withdrawn. 38 C.F.R. § 20.704(d) . FINDING OF FACT Currently diagnosed cervical spine degenerative disc disease and neurological manifestations of the upper extremities were not first manifested during active duty service, and the competent and credible evidence of record is against a finding that the current disability is related to service. CONCLUSION OF LAW The criteria for service connection of residuals of a cervical spine injury, to include upper bilateral extremity nerve damage, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). A November 2006 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). Multiple VA examinations were conducted and required opinions obtained, to include recent examinations to clarify prior opinions; the Veteran has not argued, and the record does not reflect, that these examinations are inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Examiners reviewed the claims file, considered accurate histories, and rendered requested opinions with supporting rationale. The recently obtained examinations complied fully with the Board's January 2011 remand directives. There is no indication in the record that any additional evidence relevant to the issue decided is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Evidence Service treatment records (STRs) reveal that a June 1970 entrance examination shows a normal clinical evaluation of the spine. The Veteran fell down a flight of stairs in February 1971 during an earthquake and was temporarily unable to move from the neck down. It was determined that no organic illness existed, and conversion reaction was diagnosed. In March 1971, the Veteran was diagnosed with psychoneurotic conversion reaction; medical discharge was recommended. The clinician noted that approximately two weeks after the February 1971 injury, the Veteran was hypnotized and experienced an "almost complete relief of symptoms, to the point where [the Veteran] was completely ambulatory." A March 1971 medical board examination contains a normal clinical evaluation of the spine. The clinician noted a recent bicycle accident. An April 12, 1971 treatment record shows that the Veteran complained of neck pain. There was no spasm or spinal tenderness. The diagnosis was cervical myelitis. An April 20, 1971 internal medical examination showed muscle spasm trapezius and paravertebral muscle, right greater than left; mild tenderness, right lower quadrant. X-rays showed flattening and reversal of normal curves of the spine. The diagnoses included (1) subclinical idiopathic steatorrhea due to gluten sensitivity; (2) pre-osteoporosis with normal cerum Calcium due to (1); and (3) psychoneurotic conversion reaction. On May 18, 1971, the Veteran was involved in a motor vehicle accident. The Veteran complained of back and neck pain. There was moderate cervical spasm. He could not voluntarily flex, but extension was to 80 degrees. There was full range of motion of both arms with no numbness or tingling, and good strength. There was mild tenderness over the right lower paraspinal muscles with spasm. X-rays of the cervical spine were within normal limits. The diagnosis was "sprains, acute [illegible]." The Veteran was hospitalized for two days. Diathermy was recommended upon discharge. The Veteran was treated four times for neck pain prior to his October 1971 discharge. In June 1971, there was full range of motion of the neck, with no spasm. The diagnosis was resolving neck strain. In July 1971, he complained of a sore neck. There was a spasm over the right paraspinal muscle, but no tenderness. The diagnosis was muscle spasm, and the Veteran was given a cervical collar. On July 20, 1971, the physical evaluation board returned the case for an orthopedic evaluation regarding the Veteran's May 1971 "whiplash injury," finding that it could not determine the degree of impairment, if any, resulting from that injury. An August 1971 orthopedic consultation record shows that the Veteran had a "steady diminution in neck symptoms" and used a cervical collar only occasionally. He reported an occasional catch in the neck with certain motions, but the majority of the time he had no neck symptoms. Range of motion and contour of the neck were normal. There was normal muscular development in the neck and shoulder girdle. There were no areas of tenderness. Function, strength, sensation and reflexes in the upper extremities were normal. X-rays of the cervical spine were normal. The impression was "history of mild cervical strain with satisfactory resolution of symptoms and no evidence of permanent impairment." The clinician wrote: "There is nothing to suggest that this patient ever had a 'severe whiplash injury' as mentioned in the letter returned by the Physical Evaluation Board. It appears that he had a mild cervical strain due to an automobile accident and that he is recovering normally from this. Suggested profile is U-1. No further treatment is indicated." At a post-service VA psychiatric examination in February 1974 in connection with a compensation claim for a psychiatric disability, the Veteran's history of neck injury in service was accurately reported, but the Veteran denied any current problems associated with such. He did describe some in-service hand tremors, which resolved following hypnosis, and indicated they recurred sporadically since. April 2001 private treatment records from Dr. FAH, a chiropractor, show that the Veteran reported numbness in his hands since early 1980, some 9 years post-service. He also complained of pain across his shoulders and at the top of his shoulders. His prior medical history included (1) a 1959 motor vehicle accident; (2) a 1971 in-service motor vehicle accident, which resulted in neck spasms and a brief hospitalization; (3) a 1974 /1975 post-service motor vehicle accident, with no apparent injury; and (4) a 1992/1993 post-service motor vehicle accident, which resulted in whiplash and neck pain. The Veteran reported that he had received chiropractic care "off and on over years" since the 1992/1993 accident. Upon physical examination, there was lateral scoliosis with apparent left cervical curvature, left thoracic curvature, right lumbar curvature, right head tilt, right shoulder high, right ilium high. X-rays showed (1) "atlas moved obliquely anterior, superior and right along the convergence of left condyle; and obliquely anterior, superior and left along the convergence of the right condyle"; (2) discogenic spondylosis C5-C6; (3) cervical hypolordosis; and (4) narrowing IVD at C3-C4. The chiropractor diagnosed neurological interference to the spinal cord and nerves due to subluxation of Atlas vertebra. An October 2002 medical report from Dr. FAH shows that the Veteran was involved in a February 2002 post-service motor vehicle accident. The history reported by the Veteran included neck pain and left hand numbness. The doctor wrote: "Onset after accident, had been feeling good. Exacerbation of condition." The diagnosis was subluxation of C1 vertebra, sprain/strain of soft tissue in an area compromised by discogenic spondylosis. Nerve interference to spinal cord and nerves." As for whether the 2002 accident was a contributing factor to the Veteran's condition, the doctor wrote: "Prior to accident patient was capable of being symptom-free. As yet, complaints persist." A June 2007 VA treatment record shows that the Veteran gave a history of C5-C6 fusion and a hand tremor; there is no evidence of a fusion in the claim file. In September 2007, he gave a history of cervical radiculopathy. The December 2007 VA examination report shows that the Veteran reported neck problems. He did not recall any orthopedic difficulty prior to service, or later during service. He reportedly was able to perform his duties during the last three months of service "as far as his orthopedic status was concerned." He was "still feeling quite good" one year after discharge; his hands were not numb. The Veteran related that his first difficulty of a bone or joint nature was numbness in both hands in the late 1970's, although "he wonder[ed] if he had some of it earlier than that." The numbness had persisted, involved all ten fingers at various times, and was reportedly his worst problem. Flare-ups occurred with various manual activities. The Veteran complained of occasional neck pain of eight years' duration. Flare-ups occurred with manual activities and prolonged sitting. The examiner noted that STRS state that the neck pain had "occurred for awhile" during service, although the Veteran did not recall this. The examiner reviewed the STRs, including those concerning the May 1971 motor vehicle accident and the February 1971 earthquake, and noted that these injuries had involved "neck symptoms" but made no mention of hand numbness. Upon physical examination of the neck, range of motion was 75 degrees rotation, 35 degrees lateral bending, 40 degrees flexion, and 40 degrees extension. There was some mild pain with these movements that was bothersome. There was a mild muscular tenderness at the posterior neck and at both trapezius muscles. Sensation was decreased in both hands, mostly at the radial three digits, but it frequently involved all five digits of each hand. The ulnar nerve was tender at both elbows. Carpal tunnel signs were positive at both wrists. The examiner diagnosed muscular strain superimposed on degenerative instability, and noted that he was adding the numbness as a diagnosis because of overlapping symptoms and "because the numbness might have started in the military." He determined that the cervical nerve roots were "probably okay" and that the numbness was "probably from peripheral causes." There was evidence of cubital tunnel syndrome and carpal tunnel syndrome. Peripheral neuritis was also a possibility. The examiner wrote "Neurologic consultation would be necessary if Regional Office needs more information." The examiner opined that the return of neck symptoms and the hand problems are "less likely than not" related to service. He reasoned that the onset of the present symptoms occurred so long after military that it seems unlikely that the present situation is related to service. However, with respect to the hand problems, the examiner stated that he "would defer to Neurology if their opinion is different than mine." In January 2008, the VA examiner provided an addendum after reviewing X-rays. There was cervical disc degeneration at several levels, worst at C5-6. The examiner stated that his December 2007 diagnosis with respect to the neck and hands remained the same. In light of the December 2007 VA examiner's comments regarding the necessity of a neurological examination, VA neurological and orthopedic examinations were conducted following remand. At the February 2011 VA spine examination, the examiner reviewed the claims file and accurately recounted the Veteran's medical history as reflected in his records. The Veteran reported that he had left the military due to mental problems; he described neck pain following a car accident, but did not report upper extremity problems began during service. There may have been some symptoms at the end of or immediately following service. However, he reported definitive numbness of the hands beginning in 1978, and neck pain in the early 1990's. He cited three post-service motor vehicle accidents. The Veteran currently complained of mild neck discomfort several times a week, as well as numbness of both upper extremities from the elbow to the hands. His left hand was worse; he had broken the left arm as a child. Physical examination revealed range of motion of 65 degrees right rotation, 60 degrees left rotation, 25 degrees lateral flexion bilaterally, and flexion and extension to 35 degrees each. Mild posterior muscular tenderness was noted. The left hand demonstrated some diminished sensation and a slightly positive carpal tunnel sign. The examiner diagnosed chronic muscular strain superimposed on degenerative instability and probable peripheral nerve difficulty. The conditions were probably worsened by chronic tension or depression. X-rays conducted later showed worsening disk degeneration at multiple cervical levels; the diagnoses were confirmed. The examiner opined that the Veteran's in-service neck injury had healed completely. The current neck problems did not develop until 20 years after service, and were not likely related to the in-service motor vehicle accident or otherwise to military service. With regard to the upper extremity symptoms, the examiner opined that a relationship to service was probably not related to the military, as there was a gap in time between the injury during the in-service car accident and the onset of chronic symptoms. A VA neurological evaluation was also conducted. The claims file was reviewed, and the examiner accurately noted the Veteran's medical history, including the May 1971 motor vehicle accident in service and the resolution of symptoms soon after. Objective testing showed bilateral moderately severe carpal tunnel syndrome, worse on the left; mild left elbow ulnar neuropathy; and mild chronic left C7 radiculopathy. X-rays showed mild to moderate progressive degenerative disc disease. These conditions manifested as numbness of the hands. The examiner opined that the Veteran's current neurological problems were not related to the in-service motor vehicle accident. The diagnosed mild muscular cervical strain resolved completely in service. Updated VA treatment records, through September 2011, document continued orthopedic complaints, but include no opinions regarding causation relevant to the appeal. Analysis Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is 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(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. While there was a documented in-service neck injury, the Veteran's statements and the medical evidence of record clearly demonstrate that the associated problems resolved completely prior to separation from service. There was no recurrence of those problems until many years after service; the occurrences followed additional accidents and injuries. No doctor has opined that the in-service accident caused or aggravated his current condition. VA doctors, the only providers to opine, have, in fact, specifically excluded such a relationship. The February 2011 orthopedic examiner stated that the Veteran would have developed his current disability had he never been in the military. The competent medical opinions of record are based on accurate histories and complete examinations, and are supported by well reasoned rationales which refer to the established facts. Consistent with the remand instruction of the Board, neither VA examiner considered the February 1971 complaints following a fall during an earthquake as the Board found that such was not a neck injury but, rather, a psychological symptom. The sole opinion of record relating current symptoms to service is that of the Veteran. However, the Veteran is not competent, as a layperson, to offer an opinion on a question involving specialized knowledge or training. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This is not a situation where a clear cause and effect relationship is subject to observation and report by a layperson. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Moreover, the Veteran has never reported continuity of symptoms, which he could competently observe. He has consistently reported the resolution of problems in service, and this is supported by the medical evidence of record. He has always reported a gap in time between service and the recurrence of symptoms (or initial occurrence of new symptoms) and did not file a claim for service connection until 2006, almost 35 years after discharge. An extended post-service period without medical complaint can be considered as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for residuals of a cervical spine injury, to include upper bilateral extremity nerve damage, is not warranted. ORDER Service connection for residuals of a cervical spine injury, to include upper bilateral extremity nerve damage, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs