Citation Nr: 1222158 Decision Date: 06/25/12 Archive Date: 07/02/12 DOCKET NO. 07-21 278 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for cervical sprain and strain. REPRESENTATION Appellant represented by: Delaware Commission of Veterans Affairs ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had active military service from February 1997 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2005 rating decision, in which the RO, inter alia, denied the Veteran's claims for entitlement to service connection for headaches and cervical sprain and strain. In April 2005, the Veteran filed a notice of disagreement (NOD) as to both claims. A statement of the case (SOC) regarding these issues was issued in May 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2007. In November 2008, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing the requested action, in a November 2011 rating decision, the RO granted service connection for headaches (resolving that issue on appeal). However, the RO continued to deny the claim for service connection for cervical sprain and strain (as reflected and November 2011 supplemental SOC (SSOC)), and returned that matter to the Board for further appellate 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 involved in a motor vehicle accident in service and experienced a cervical sprain and strain (which was noted to have resolved within a month), the medical evidence does not support a finding that the Veteran has, or ever has had, a chronic disability of the cervical spine. CONCLUSION OF LAW The criteria for service connection for cervical sprain and strain are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). 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. 2011)) 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) (2011). 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 a 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, to include the AMC). 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. In this appeal, in an October 2004 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The April 2005 RO rating decision reflects the initial adjudication of the claim after issuance of the October 2004 letter. Post rating, a March 2009 letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates (in the event service connection is awarded), as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the March 2009 letter, and opportunity for the Veteran to respond, the November 2011 supplemental SOC (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this 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 an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claim remaining on appeal. Pertinent medical evidence associated with the claims file consists of service and VA treatment records, and the reports of two 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 in connection with this claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate his 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 the 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 herein decided, 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; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). 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). The Veteran contends that he is entitled to service connection for cervical sprain and strain as a result of a motor vehicle accident during service at which time he experienced cervical strain. However, considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim for service connection for cervical sprain and strain must be denied. The Veteran's service treatment records reflect that the Veteran was in an automobile accident in February 2000. Private emergency room records show that immediately following the accident, he experienced neck and back pain. He was assessed as having acute cervical and lumbar strain secondary to motor vehicle accident. Service treatment clinical notes dated one week later do show that the Veteran complained of muscoskeletal pain of the neck. Motrin was prescribed at that time. A little over two weeks later, the Veteran was again seen in follow up. At that time, he continued to report pain in the low back, as well as headaches, but his neck pain had resolved. A review of the record reveals that neck pain was not again reported at any time thereafter. Shortly after filing his initial September 2004 claim for VS benefits, the Veteran was afforded VA general medical examination. When summarizing his present symptoms to the examiner, the Veteran made no mention of complaints related to the neck. Low back pain was again reported, but nothing regarding the cervical spine. Physical examination of the cervical spine showed paraspinal muscle spasm and deformity to be absent. Flexion, extension and rotation were all painless and unrestricted. Although the examiner noted cervical sprain and strain in the diagnosis section, this appears to have been noted only as history, inasmuch as the examination notes and currently reported symptoms are entirely devoid of any mention of current symptoms or manifestations related to the cervical spine. In June 2011, following the Board's remand, the Veteran was afforded a VA/QTC examination to again attempt to ascertain the nature of any current cervical spine disability, and, if diagnosed, to determine the etiology of any such disability. The examination report includes a notation that the Veteran suggested to the examiner that he did not wish to claim a cervical spine disability (although the Board observes, parenthetically, that at no time has the Veteran withdrawn from appeal his cervical spine claim). Nonetheless, the examiner still physically examined the Veteran's cervical spine, noting that there was full range of motion and no evidence of radiating pain on movement, muscle spasm, tenderness, guarding, weakness, loss of tone, atrophy of limbs, or ankylosis. Inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry in spinal motion and normal curves of the spine. Neurological examination was also conducted and the examiner reported no sensory defects from C3-C8. The Veteran refused to submit to X-rays in conjunction with of the examination. Nonetheless, based upon his physical examination findings and discussion with the Veteran, the examiner concluded that there was no diagnosis related to the Veteran's cervical spine, because the [in-service] condition had resolved. In sum, the medical evidence does not support a finding that the Veteran has, or at ever has had, a chronic cervical spine disability. While cervical strain is clearly noted in service at the time of the automobile accident, the condition is shown to have resolved within the month following the accident, and there is no medical indication that the condition reoccurred at any time since, or that the Veteran otherwise has current cervical spine disability that had its onset in or is otherwise medically related to service. Indeed, although the examiner was not able to accomplish pertinent diagnostic testing-as indicated, the Veteran refused to have X-rays-the June 2011 examiner's conclusion weighs against a finding of current disability. Significantly, more neither the Veteran nor his representative has presented or identified or identified any contrary medical evidence-i.e., evidence that, in fact, supports a finding of current cervical spine disability that is etiologically-related to service. Finally, to whatever extent the Veteran and/or his representative attempt to substantiate the claim on the basis of lay assertions, alone, such attempt must fail. Lay assertions, without more, simply provide no basis for allowance of the claim. The Board points out that a layperson is competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran is also competent to testify about observable symptoms or injury residuals. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Veteran is competent to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370 (2002). As indicated above, however, the claim under consideration turns, fundamentally, on the matter of whether the Veteran has the disability for which service connection is sought , and, if so, whether there exists a medical relationship between such current disability and service. Diagnosis and etiology of disabilities not capable of being established on the basis of lay observation, alone, are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without appropriate medical training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on the any medical matter on which these claims turn. 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. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110; see also 38 C.F.R. § 3.310. Thus, where, as here, medical evidence does not support a finding that the Veteran has disability of the cervical spine upon which to predicate a grant of service connection, there can be no valid claim for service connection-on any basis. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consequently, the claim for service connection for cervical sprain and strain must be denied because the first essential criterion for service connection-evidence of a current disability-has not been met. For all the foregoing reasons, the Board finds that the claim for service connection for cervical sprain and strain 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 cervical sprain and strain is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs