Citation Nr: 1300124 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 09-26 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a cervical spine disorder. WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied his claim of entitlement to service connection for a neck disorder. The Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO in November 2008 and before the undersigned Veterans Law Judge during a March 2011 Travel Board hearing. Copies of the transcripts have been associated with the claims file. The Board notes that the Veteran initially appointed the Texas Veterans Commission as his representative. However, in October 2010, the Veteran subsequently filed a VA Form 21-22 appointing the Disabled American Veterans (DAV) as his representative. Subsequently, the Texas Veterans Commission represented the Veteran at the March 2011 Board hearing. The Board sent the Veteran a letter in December 2011 requesting that he clarify his representation and informing him that the Board would assume that he wished to represent himself and to no longer be represented by a Veterans Services Organization if he did not reply to the letter. As no reply was received from the Veteran, the Board assumes that the Veteran wishes to represent himself. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder ." FINDING OF FACT A current cervical spine disorder did not have its onset during active service or become manifest within the first post-service year, and the Veteran's current cervical spine disorder is not the result of an event, injury, or disease incurred in active service. CONCLUSION OF LAW A cervical spine disorder was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the VCAA duty to notify was satisfied by a letter sent to the Veteran in March 2007 with regard to the remaining claim of entitlement to service connection for a cervical spine disorder. The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision by the RO in October 2007. The duty to assist was also met in this case. All pertinent service treatment records, service personnel records, VA treatment records, and private treatment records have been obtained and associated with the file. A VA examination with respect to the issue on appeal was obtained in May 2012. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is adequate, as it is predicated on a full reading of the private and VA medical records in the Veteran's claims file. It considers all of the pertinent evidence of record and the statements of the appellant, and the examiner provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The available records and medical evidence have been obtained in order to make adequate determinations as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. 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). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, such as arthritis, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In his October 1972 service enlistment examination report, the Veteran's neck and spine were marked as normal. Service treatment records indicated that the Veteran sought treatment for neck pain in April 1975 and May 1975. On physical examination, there was no swelling, deformity, or limitation of motion. He was noted to exhibit a small amount of tenderness of the trapezius muscle group and some muscle spasm on the right side of the neck. In May 1975, the examiner listed a diagnosis of muscle strain. He was also treated following a fall down stairs at home in June 1975 for head injury and contusions of the face. In his February 1977 service separation examination report, the Veteran's neck and spine were again marked as normal, and the Veteran was noted to assert that he was in good health. Post-service treatment records show complaints of continued neck pain. Specifically, the Veteran submitted a letter dated in December 1994 from the Texas Department of Criminal Justice Health Services Division which provided that he was seen by the General Surgery Clinical at the TDCJ Hospital in Galveston, Texas, in March 1993. Pain medication and a return appointment were ordered by the surgeon. He was seen by a neurologist in April 1993 and again in November 1993 with complaints of pain and stiffness in the wrists, hand, and back. Thereafter, the Veteran was referred to the orthopedic clinic and was seen in January 1994. In February 1994 and June 1994, he was again treated for complaints of neck, hand, and arm pain. VA treatment records reflected that the Veteran complained of neck pain with radiating pain in his right upper extremity in February 2007 where he was referred to neurology for a possible MRI. A February 2007 VA X-ray report listed an impression of mild cervical spondylosis at C5-C6 and C6-C7. A May 2007 nerve conduction velocity and electromyography (NCV/EMG) study of right cervical paraspinal areas and right upper extremity did not reveal evidence of radiculopathy but showed evidence of mild sensorimotor axonal peripheral neuropathy. A June 2007 VA neurological consultation reflected complaints of neck pain and numbness. The Veteran reported that neck stiffness began in 1997 and numbness in the right arm, from the shoulder down to the hand, began in 2005. The sensations were noted to occur originally intermittently and then later become constant. The examiner listed an assessment of evidence of peripheral polyneuropathy and probable cervical radicular irritation. The examiner ordered an MRI that was later cancelled in January 2008 after the Veteran failed to schedule the requested MRI testing after repeated attempts to contact him. The Veteran continued to complain of neck pain with radiating pain into his upper right extremity. In May and June 2008, the Veteran complained of neck pain, and it was recommended that he continue taking his pain medication as well as be referred to neurology for evaluation. A September 2008 VA treatment note showed that the Veteran was issued a home cervical traction unit. In a March 2009 VA neurology clinic treatment note, the Veteran was diagnosed with peripheral polyneuropathy and degenerative cervical spine disease with multilevel cervical spondylosis which was greatest at C5-6. He was also noted to have moderate right carpal tunnel syndrome and moderate right ulnar neuropathy at the elbow. Additional VA treatment records dated from 2009 to 2012 showed continued complaints of neck pain. A June 2009 VA cervical spine X-ray report revealed degenerative changes of the cervical spine as well as intervertebral space narrowing. A July 2009 VA NCV/EMG study revealed no evidence of a right cervical radiculopathy but was consistent with peripheral neuropathy. In May 2011, the Veteran complained of chronic pain in neck that radiated to the right side of arm and the examiner noted findings of cervical radiculopathy. A June 2011 MRI report revealed moderate degenerative changes of the cervical spine. In October 2011, the Veteran complained of chronic neck pain localized to the lower cervical spine with no radiation, numbness, or weakness. The examiner listed an assessment of cervical degenerative joint disease. An April 2012 VA cervical spine X-ray report listed an impression of moderately significant degenerative remodeling change mid/lower cervical spine at C5-6 and C6-C7 predominantly. Treatment records dated in April and May 2012 treatment record detailed that the Veteran suffered a sprain/strain of the neck/upper back after a mvc (motor vehicle collision) in April 2012. Additional treatment records dated in 2012 showed that the Veteran was receiving continued chiropractic treatment for his neck and showed assessments of cervical degenerative joint disease with radicular symptoms. In a May 2012 VA Neck Disability Benefits Questionnaire (DBQ) examination report, the examiner listed a diagnosis of degenerative disc disease of cervical spine. After reviewing the claims file and examining the Veteran, the examiner opined that "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner provided a detailed rationale for his opinion, noting that the claims file did not indicate that the Veteran had any chronic neck condition while in the service. He acknowledged in-service treatment notes documenting neck problems but noted that those records did not indicate any serious injury but instead suggested an acute condition involving minor muscle strain without any indication of cervical disc disease. The examiner further noted that the Veteran did not report any neck pain at the time of his in-service fall in 1975 or for the remaining two years while he was still on active duty. He concluded, based on his review of the file and clinical experience, that there was no medical evidence found to support that a chronic neck condition originated in service. During the November 2008 DRO hearing, the Veteran testified that he injured his neck during service when he was hit in the head by a gun in 1976. He asserted that he sought in-service treatment for his neck and had suffered from consistent neck pain since his in-service injury. During the March 2011 Board hearing, the Veteran testified that he sustained two in-service injuries, one when he was hit in the head by a gun turret and another when he fell down some stairs. He asserted that he injured his neck and sought treatment during service. The Veteran further contended that his current problems occurred from his in-service injuries. He also indicated that his VA doctor had told him that his current neck problems resulted from a prior neck injury. His spouse discussed her daily activities in helping the Veteran with his neck pain. As an initial matter, the Board notes that the post-service VA treatment records did reflect findings of current cervical spine disorders, including degenerative cervical spine disease with multilevel cervical spondylosis and stenosis. The Board also finds that the Veteran is competent to report a history of neck pain after injuries during service. Service treatment notes also specifically documented complaints of neck pain in April and May 1975 and treatment after a fall injury in June 1975. However, a finding of a nexus between the Veteran's current cervical spine disorder and in-service events is not shown. In this case, complaints of neck pain were first shown many years after separation from active service and cannot be presumed to have been incurred during service. The Board also notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The record also includes no competent medical opinion establishing a causal relationship between the post-service treatments for a cervical spine disorder to any established event in service, including in-service treatment for neck pain or fall injuries. The Veteran has not identified or even alluded to the existence of any such opinion. In fact, the May 2012 VA examiner specifically opined that it was less likely than not (less than 50 percent probability) the current neck disorder was incurred in or caused by the in-service injury, event, or illness. The Board acknowledges the Veteran's contentions that his current cervical spine disorder is related to his competently and credibly asserted in-service neck injury as well as his documented in-service treatment for neck pain and fall injury in 1975. Although the Veteran and his spouse might sincerely believe that his current cervical spine disorder is related to events during service, as a layperson, their statements are not competent evidence of a medical opinion regarding the etiology of his cervical spine disorder. See Barr, 21 Vet. App. at 307 (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). The Board also recognizes that service connection may be granted on the basis of continuity of symptomatology. 38 C.F.R. § 3.303(b). In this case, the Veteran has stated that he had neck problems during active duty and thereafter. The Board recognizes that the Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Furthermore, he can attest to lay-observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, in this case, the Board finds that the Veteran's statements are not credible with respect to the onset of his reported symptoms. Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted). In this case, the VA examiner's May 2012 opinion that the Veteran's current cervical spine disorder is not related to those conditions that the Veteran experienced during active duty "hangs together" in a consistent manner with the other evidence of record and renders it more believable and convincing. Although the Veteran can attest to having neck problems during service and thereafter, he is not competent to state that these symptoms are his currently diagnosed cervical spine disorder. Indeed, the service treatment records, while showing complaints of neck pain and an isolated notation of muscle strain, are completely absent for any indication or documentation of a cervical spine disorder. In addition, there is no documentary evidence to show that the Veteran received treatment for a cervical spine disorder until 1993 at the earliest, more than 12 years after his separation from active duty. Although he appears to be sincere in his belief as to service connection, in light of these factors, the Veteran's current statements to the effect that he has experienced continuous symptomatology since active service are not deemed to be credible. The absence of documented complaints or treatment for many years following his military discharge is more probative than his current recollection as to symptoms experienced in the distant past. See Curry v. Brown, 7 Vet. App. 59 (1994). Thus, the Board finds that service connection based on continuity of symptomatology is also not warranted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(b). In light of the cumulative record discussed above, the criteria to establish entitlement to service connection for the cervical spine disorder has not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a cervical spine disorder is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs