Citation Nr: 1301487 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 06-31 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for neck disability. 2. Entitlement to service connection for a disability of the left or right hip. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from November 1959 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied the Veteran's claims for service connection for disabilities of the knees, hips, neck and low back. In October 2010 the Board remanded the claims for further development. The VA Appeals Management Center (AMC) continued the previous denials in an April 2011 supplemental statement of the case (SSOC). In October 2011 the Board denied entitlement to service connection for a right knee disability and remanded the remaining issues for further development. In a September 2012 rating decision, the AMC granted service connection for left knee arthritis and degenerative disc disease of the lumbar spine. To the Board's knowledge, the Veteran has not yet disagreed with any element of that decision. These claims have accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). FINDINGS OF FACT 1. A current neck disability is not the result of a disease or injury during the Veteran's active military service. 2. A current hip disability is not the result of a disease or injury during the Veteran's active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability are not met. 38 U.S.C.A. §§ 1110, 1112(a), 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The Veteran does not have a neck disability that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1112(a), 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA); Pub. L. No. 106-475, 114 Stat. 2096 (2000), requires that VA provide notice and assistance to claimants in order to aid in substantiating their claims. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 200 & West Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (2012). The provisions of 38 C.F.R. § 3.159 were revised, for claims pending on or after May 30, 2008, to remove the requirement that VA tell claimants to provide any evidence in the claimant's possession that pertains to the claim. See See 73 Fed. Reg. 23353-56 (April 30, 2008). Through a notice letter dated in September 2004, the RO notified the Veteran of the information and evidence needed to substantiate his claim. The September 2004 notice letter told the Veteran what evidence was needed to substantiate the claims, told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C. F.R. § 3.159(b)). In a November 2009 letter, the Veteran received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination. The timing deficiency as to the Dingess notice was cured when his claims were readjudicated in the April 2011 and September 2012 supplemental statements of the case, following the issuance of the November 2009 letter. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The evidence in the claims file includes private treatment records, statements of the Veteran, and service personnel records. The Board notes that in March 2009, the RO issued a Formal Finding of Federal Records Unavailability with respect to the Veteran's service treatment records (STRs). The Veteran was notified of this issue a letter dated February 2009 and in the Board's October 2011 decision. Destruction of service medical records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). Where service medical records are missing, VA also has a duty to search alternate sources of service records. Washington v. Nicholson, 19 Vet. App. 362 (2005). In this case VA made multiple requests for the service treatment records from the National Personnel Records Center (NPRC) and VA's records management system. In November 2005 NPRC erroneously told the Veteran that it did not have his records because they had previously forwarded them to VA. NPRC had; however, previously told VA that it did not have the Veteran's records and never indicated to VA that it was forwarding service treatment records. VA did obtain service personnel records and ask the Veteran for any records in his possession. He reported that he did not have any such records. The Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate the claims being decided herein, including efforts to obtain service treatment records that are apparently unavailable. In light of evidence that the records are unavailable there is no reasonable possibility that the missing records may be located or recovered, and thus no useful purpose would be served in remanding this matter for more development. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of this issue has been consistent with said provisions. The October 2010 Board remand was intended to afford the Veteran VA examinations and obtain a medical opinion. The Board found the resulting medical opinions to be inadequate, and sought to remedy these deficiencies by way of its October 2011 Remand, the Veteran was afforded a VA examination in November 2011, the report of which is contained in the claims file. The November 2011 VA examination report contains sufficient evidence by which to decide the claim. The opinion contained therein addresses the relationship between the claimed neck and hip disabilities and service. They were based on an accurate history, including extensive consideration of the Veteran's reports. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the VA examination report is adequate. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In his August 2004 claim, the Veteran contended that service connection for his hip disability could be established as either directly incurred in service or as secondary to knee problems. VA has not afforded the Veteran an examination and medical opinion with regard to the theory of secondary service connection. Although the Veteran was provided notice as to how to substantiate entitlement to service connection on a secondary basis; he has not submitted any further evidence with regard to the theory of secondary service connection. His contention, standing alone, is insufficient to trigger VA's duty to provide a medical examination or obtain a medical opinion with regard to secondary service connection. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). II. Analysis Service connection will be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b) (2012), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); 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) there is 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 v. Gober, 10 Vet. App. 497, 495-96 (1997). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). Lay evidence may serve to support a claim for service connection by supporting the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated 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, supra (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 any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (such as arthritis) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service; or if shown in service and at any time thereafter. 38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.303(b), 3.307(a)(3); 3.309(a) (2012). Neck Here, the Veteran contends that he experienced neck pain following an in-service motor vehicle accident in which he also injured his (now service connected) low back. See VA examination report dated November 2011. He has also stated that he experienced a gradual onset of pain around 1975. See VA examination report dated January 2011. There are no records of any treatment prior to February 2000. Private treatment records beginning in February 2000, document the Veteran's complaints of right hip pain, but do not mention his neck. In his August 2004 claim, the Veteran contended that "all conditions and injuries occurred during my military service and are documented in my Service Medical Records." The Veteran was afforded a VA examination in January 2011 at which time the examiner interviewed him and reviewed his medical history, including his report of a slow onset of neck pain which developed around 1975. At that time, the Veteran reported that he did not recall exact treatment for this condition during military service. The examiner noted that the Veteran's wife reported that the Veteran had been seen by a chiropractor during the 1970's. The Veteran reported chronic neck pain following his military discharge, which was treated by a chiropractor with manipulation. Upon examination of the neck, the examiner noted pain, stiffness, lack of endurance, decreased range of motion, and daily flare-ups of symptomatology. X-rays of the neck conducted contemporaneous with the examination revealed multi-level mild to moderate degenerative changes. The examiner diagnosed "cervical degenerative joint and disc disease without clinical evidence of radiculopathy." As to the question of medical nexus, the examiner stated that "[t]he Veteran's STRs are not available in the Veteran's [claims] file; therefore, I cannot determine whether the Veteran's neck condition is related to military service." As noted in the October 2011 Board Remand, the opinion expressed by the January 2011 VA examiner was inadequate, because the examiner relied on the absence of supporting medical records without considering the Veteran's statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In Jones v. Shinseki, 23 Vet. App. 382 (2010) that in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. The opinion expressed by the January 2011 VA examiner is; therefore of little probative weight. Pursuant to the October 2011 Board Remand, the Veteran was afforded another VA examination in November 2011. At that time, the examiner noted the Veteran's report that he developed neck pain following an in-service motor vehicle accident in which he also injured his back. The Veteran reported pain and loss of motion dating from the in-service accident. The Veteran also indicated that he now gets sharp pains in the neck, which run into the back of his head. He indicated that he did not recall any specific treatment for his neck symptomatology during his military service. With respect to the question of medical nexus, the examiner concluded "[i]t is less likely as not that the Veteran's current claimed neck condition is related to his service." The examiner noted that "[t]he Veteran's service medical records are unavailable for review, and [the] opinion is based on Veteran's history, imaging, and pertinent medical literature regarding degenerative disease of the cervical spine." The examiner explained, "[o]n review of the history of the neck problem, there are inconsistencies in the Veteran's report. He reported to a previous examiner that he was uncertain of when this started, and recalls only conservative treatment. He reports to this examiner that he had neck pain following an incident in which the jeep in which he was riding struck some uneven terrain and he suffered neck pain as a result." The examiner continued, "[h]is x-rays do demonstrate some degree of degenerative disease of the cervical spine, although review of available medical records...[is] silent with respect to this complaint. Even allowing for benefit of the doubt to the Veteran, his history that is provided per him is inconsistent, and current medical records are silent with respect to ongoing complaints." The examiner further observed that, "[h]is occupation as a meat cutter would be expected to play a role in this problem as well, given that this position requires operating meat saws, and cutting and wrapping products, and it would be expected that anyone in that occupation would be spending considerable time with head bent forward, leading to degenerative disease of the neck. His injury history is also inconsistent with the radiographic findings." The examiner concluded, "[t]herefore it is concluded that it is less likely as not that the Veteran's current claimed neck condition is related to service." In a December 2011 addendum, the VA examiner additionally explained that "[t]he opinions rendered are based on historical reports by the Veteran, private medical records and other documents as provided by the [claims] file, as well as, imaging done by the VA at the previous compensation and pension examination...in January 2011 . . . [S]ervice treatment records are not reviewed due to unavailability of those records." The November 2011 VA examination report with medical opinion was based upon review of the record and analysis of the Veteran's entire history, including his medical history as to his currently diagnosed neck disability. Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). There is no other relevant medical opinion of record. The Veteran has provided competent reports that he injured his neck or began to experience neck pain in service and that the symptoms have continued since. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). If deemed credible, his statements could serve to establish both an in-service injury and a link between that injury and service. Id. The Veteran's reports; however, have, as the most recent examiner pointed out, varied as to the onset of his symptoms in service and when examined by a private physician as recently as May 2003, the findings referable to the neck were normal and there were no recorded neck complaints. The Veteran has reported treatment at Sutter North Medical Foundation for all of his claimed disabilities beginning in January 1979, but the available records from that facility do not show treatment for a neck disability. In addition, while the Veteran's spouse recalled that the Veteran had seen a chiropractor in the early 1970's, there is no indication that this treatment was for a neck disability. Given the variations in the Veteran's reports and the contradictory contemporary medical records; the Board finds the reports of in-service incurrence and continuity of symptoms to lack credibility. Although the Veteran is shown to currently have a chronic disease, osteoarthritis, the record does not show that disease to a compensable degree within one year of service. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012) (providing that a compensable rating for arthritis requires X-ray evidence of arthritis). In addition there is no evidence that arthritis was identified in service. Although the Veteran has reported pain in service, he has not reported that arthritis was identified and there is no other evidence to that effect. Hence, service connection would not be warranted on a presumptive basis. The most probative evidence consists of the November 2011 VA examination and December 2011 addendum. The most probative evidence is against the claim. As such the preponderance of the evidence is against the Veteran's claim, reasonable doubt does not arise, and his claim of entitlement to service connection for a neck disability is denied. See 38 U.S.C.A § 5107(b) (West 2002). Hips Private treatment records show that the Veteran was seen in February 2000 with a complaint of right hip pain that had been going on for "quite some time." It was noted that this had been of gradual onset without trauma. No more specific history was recorded. X-rays were interpreted as showing osteoarthritis of both hips, slightly worse on the left. A private treatment record dated in July 2002, reports a "long history" of right hip pain. It was noted that there was osteoarthritis in both hips, but that it was worse on the right. As noted, the Veteran contended in his claim for benefits that a hip disability should be service connected on a direct and secondary basis. He acknowledged that the service treatment records might not document these disabilities. He also reported that he had worked as a meat cutter prior to retiring in 1995; and that the hip disabilities had not interfered with this employment. It was noted that the Veteran had subsequently undergone bilateral hip replacements. At the initial VA examination in January 2011, the Veteran reported that bilateral hip pain began "around the late 1960's," and according to the examiner, that he "may have been treated conservatively with aspirin" while on active duty. The examiner provided a similar opinion with regard to the hip disabilities as she did with regard to the neck, and the opinion with regard to the hips is similarly inadequate. Dalton. At the November 2011 VA examination, the examiner noted that hip replacements had been performed in July 2002 and November 2003. The examiner concluded that the current hip disabilities were less likely as not related to service. In support of this opinion, he noted that the Veteran had been unable to report a specific injury, and that his history on examination was "very vague." The history provided to previous VA and private examiners was also found to be vague. The examiner found it significant that the Veteran had been able to work for many years as a meat cutter, and been required to lift heavy boxes; and commented that it would "not be unexpected" that this employment would lead to the development of arthritis. As with the neck disability claim, the Veteran's reports of symptoms in service and a continuity since; are competent evidence of in-service disease or injury and of a link between service and the current neck disability. The credibility of his reports is weakened by the lack of specificity and his expressed uncertainty as to whether he was even treated. In this regard the Veteran was apparently not sure whether he was given aspirin in service. In the private treatment records, beginning in February 2000, the Veteran reported a history related to the right, but not the left hip. It does not seem credible that the Veteran would not have reported ongoing left hip symptoms when examined for complaints related to the right hip, and undergoing evaluations that included the left hip. Because of the vagueness of his reports, and the contrast between the Veteran's current reports and the history recorded when seen for right hip complaints, the Board finds his reports of a continuity of symptomatology to not be credible. Although the Veteran is also shown to currently have osteoarthritis of the hips, the record also does not show that disease to a compensable degree within one year of service. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. In addition there is no evidence that arthritis was identified in service. Although the Veteran has reported pain in service, he has not reported that arthritis was identified and there is no other evidence to that effect. Hence, service connection would not be warranted on a presumptive basis. The November 2011, examination and opinion is the most probative evidence with regard to the hip claims. There is essentially no competent and credible evidence linking the current hip disabilities to service. As such, the preponderance of the evidence is against the claim. Reasonable doubt does not arise and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a disability of the left or right hip is denied. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs