Citation Nr: 1303370	
Decision Date: 01/31/13    Archive Date: 02/05/13

DOCKET NO.  08-07 595	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma



THE ISSUE

Entitlement to service connection for a disability of the cervical spine.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

J. Connolly, Counsel



INTRODUCTION

The Veteran served on active duty from April 1974 to April 1978, and from July 1981 to July 1997. 

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for, in pertinent part, a cervical spine disability.  

In October 2011, the Board remanded this matter.  The case is now ready for appellate review.


FINDING OF FACT

A cervical spine disability was not manifest during either period of service, arthritis was not manifest within one year of separation of either period of service, and current cervical spine disability, diagnosed as degenerative changes and degenerative disc disease, is not attributable to or related to of either period of service.


CONCLUSION OF LAW

A cervical spine disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all five elements of a service-connection claim:  (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  VCAA letters were sent in December 2006, October 2011, and December 2011.  The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence.  The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess.

Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran's service treatment records (STRs), VA medical treatment records, and identified private medical records were obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no indication that any additional evidence, relevant to these claims, is available and not part of the claims file.  The Veteran also was provided a VA compensation examination, including for a medical nexus opinion concerning the etiology of the claimed cervical spine disorder and any potential relationship with military service in December 2011, as the Board directed when remanding the claim in October 2011.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The medical nexus opinion obtained is responsive to the determinative issue of causation, so additional examinations and opinions are not needed.  38 C.F.R. § 4.2.  See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).  And see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated).  The examination of record is adequate to address all pertinent concerns, as the claims file was reviewed for the relevant medical and other history, the Veteran examined, the findings reported in sufficient detail, and there was discussion of the underlying medical rationale, which is where most of the probative value of an opinion is derived.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  The VA examination report is thorough and supported by the record.  The records taken as a whole satisfy 38 C.F.R. § 3.326.

Furthermore, in obtaining this additional medical comment, the Board is satisfied there was compliance with this remand directive.  See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance).  See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive).

In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim."  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).


Service Connection

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, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.  

Establishing entitlement to direct service connection generally requires:  (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current 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).

In addition, arthritis will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service.  38 C.F.R. § 3.303(d).

If however chronicity (permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  Under § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Savage v. Gober, 10 Vet. App. 494-97 (1997); 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.

To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required.  38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Id.

In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent."  Savage, 10 Vet. App. at 497.  However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent."  Id (citations omitted).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition and other factors.  Savage, 10 Vet. App. 488, 494-97.  When, for example, 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.  In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  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" such as actual treatment records).  The Veteran is competent to report the Veteran can observe and feel through the senses.  See Layno.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

"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 the evidence also is credible, as only then does it ultimately have probative value.  See Layno (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases 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).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims ("the Court") similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he/she has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

In this case, the Veteran argues that symptoms of his cervical spine disability had manifested in active service, as manifest in the form of radiation to his shoulders, and that Dr. B., a civilian doctor who treated the Veteran after service for his degenerative disc disease of the cervical spine, had told him that the Veteran's shoulder pain during service was indicative of cervical spine problems.  

As already explained, competent lay evidence may establish the presence of observable symptomatology and, in certain circumstances, it may provide a basis for establishing service connection.  See Barr.  Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations.  Jandreau; see Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).  Indeed, even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive and, thus, not ultimately probative.  Buchanan; see also Rucker and Layno.  The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases.  Buchanan at 1337.  The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence.  Id.  

Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions.  However, here he has reported what a doctor told him.  Within the penumbra of Jandreau, such statements are competent.  

Turning to the evidence of record, the Veteran's STRs do not reflect complaints, findings, treatment, or diagnosis of a cervical spine disorder during the first period of service.  The only finding pertaining to the neck was for a neck cyst, not an orthopedic or neurological problem.  The April 1978 discharge examination yielded normal findings relative to the cervical spine and musculoskeletal and neurological systems.  

The STRs from the second period of service reflected that in April 1985, he complained of chronic neck pain which radiated to the right shoulder with constant numbness and tingling down to the little finger.  An x-ray study was indeterminate (as indicated by the notation of a plus sign on top of a negative sign) as to whether the Veteran had encroachment of the C-4 disc. 

In January 1988, the Veteran reported pain in the left shoulder and left chest region around the shoulder which had been present for the past two years.  X-rays of the cervical spine and left shoulder were again considered unremarkable.  The Veteran was diagnosed with a possible rotator cuff injury of the left shoulder.  In March 1989, the Veteran again was seen for left shoulder pain.  It was noted that this pain was most likely localized in origin and the doctor doubted the presence of cervical radiculopathy.  However, the doctor stated that if a left shoulder lesion could not be identified, further work-up, including a possible magnetic resonance imaging (MRI) of the cervical spine, would be warranted.  A June 1989 arthroscopy revealed a bucket handle tear of the glenoid labrum tear of the left shoulder.  The STRs are negative for an MRI of the cervical spine.

A subsequent November 1989 STR reflected that the Veteran reported pain in the neck and left shoulder.  Specifically, he stated that he woke with severe pain in the left lateral neck, shoulder, and shoulder blade a little over two weeks earlier.  The pain radiated from the base of the skull on the left side to the shoulder, lateral arm, lateral forearm, and to the fifth digit.  The Veteran denied paresthesias.  He stated that he had the symptoms most of the time.  He also reported previous occasions in which he woke up with a "crick" in his neck, but the pain on those occasions had lasted only a day. 

On an April 1991 QUAD examination, the Veteran reported that he had undergone shoulder surgery.  There was no mention of the neck.  The Veteran reported numerous other medical problems, including left shoulder and low back issues.

A January 1992 electromyography (EMG) study suggested involvement of the left radial nerve distal to the elbow. 

The May 1997 retirement examination was negative for any findings or complaints of cervical spine problems.  The Veteran was discharged in July 1997.

After service, an April 2003 private treatment record reflected that the Veteran suffered from ongoing cervical spine pain with left sided radiculopathy.  He was found to have a large C4-5 disc herniation.  An anterior cervical discectomy and fusion of the C-4 and C-5 discs was performed in April 2003, and noted in later private treatment records.  However, the Veteran continued to have pain in his neck which he stated radiated to his left proximal arm.  See, for example, October 29, 2003 record of Johns Hopkins Medicine.  

In November 2003, the Veteran underwent a clinical disc distension examination with diagnostic cervical discography at C5-6.  

An October 2005 MRI revealed mild canal stenosis at C5-6 secondary to combination of disc disease and degenerative changes as well as moderate right neural foraminal narrowing at C6-7 secondary to disc disease; with both findings having been stable since March 2003.  

Subsequently, in a December 2005 private treatment record, the Veteran reported ongoing neck pain and upper extremity pain.  A January 2006 private treatment record reflects diagnoses of discogenic pain at discs C5-6, and degenerative disc disease at C6-7.  A November 2006 private evaluation noted that the Veteran had chronic neck pain with asymmetric radiation into the left shoulder and left trapezius.  He underwent a cervical discogram.

In a July 2007 rating decision, the Veteran was service-connected for a left shoulder disability, degenerative arthritis of the left acromioclavicular joint, as well as for a low back disability, intervertebral disc syndrome.

VA outpatient records dated through 2009 recorded diagnoses of degenerative disc disease as well as degenerative joint disease.  

In October 2011, the Board remanded this case for a VA examination.  It was noted that the Veteran had multiple complaints of neck pain associated with upper extremity pain both during service and after discharge.  Moreover, the fact that Veteran's C4-5 disc herniation, as diagnosed and operated on in April 2003, involved the same disc, namely C4, which was suspected to be involved in the Veteran's symptoms in the April 1985 STR, at least suggested that the current pathology of the cervical spine was present during active service.  Although a January 1988 x-ray of the cervical spine was unremarkable, that same x-ray study was also unremarkable with respect to the left shoulder whereas later diagnostic studies showed that the Veteran did have objective pathology of the left shoulder.  Thus, this x-ray study was not necessarily determinative as the presence of a cervical spine problem during active service.  Given the intermittent nature of the Veteran's symptoms, the Board noted that it was plausible he did not report them at the time of his retirement.  Thus, the Board indicated that the May 1997 retirement examination report did not preclude a finding that the Veteran's current cervical spine disability is related to his complaints of neck and shoulder pain in service.  The Board requested that the following examination with medical opinion be undertaken.

The Veteran should be scheduled for a VA orthopedic examination to assess the nature and likely etiology of his cervical spine disability.  The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination.  The examiner must note in the examination report that the evidence in the claims file has been reviewed.  The examiner should also review the Board's discussion in the body of this remand for a helpful overview. 

After reviewing the file and examining the Veteran, the examiner should render an opinion as to whether it is at least as likely than not (i.e., to at least a 50:50 degree of probability) that the Veteran's cervical spine disability is a result of active military service, to include the Veteran's in-service complaints of neck and shoulder pain, or whether such a relationship is unlikely (i.e., less than a 50:50 degree of probability). Whether it is at least as likely as not that the Veteran's cervical spine disability was caused or worsened by his service-connected disabilities (e.g., low back and left shoulder disabilities).

The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  The examiner should provide a complete rationale for any opinion provided.  The AOJ should ensure that an adequate rationale has been provided before returning this case to the Board. 

In December 2011, the Veteran was afforded the requested VA examination.  At the time of the examination, the Veteran reported that his neck pain began during service, in 1987.  He denied that he had suffered any particular injury.  It was noted that the Veteran had also experienced tingling in his last two fingers of both hands.  It was determined that the Veteran had a tear in the glenoid labrum of his left shoulder.  This injury did not help his neck pain.  The Veteran related that his neck pain continued both during and after service and he was ultimately treated for a neck condition in 2003.  The current examination resulted in diagnoses of degenerative joint disease and degenerative disc disease of the cervical spine.  The examiner reviewed the inservice complaints of neck pain and clinical findings.  In particular, the examiner noted that the Veteran had normal x-rays in January 1988, EMG findings which were not consistent with cervical radiculopathy, normal cervical findings during physical therapy in November 1989, and a normal discharge examination.  The examiner indicated that there was no evidence of a fracture or injury in the military which could lead to degenerative changes in the service spine.  There was no documentation of neck pain until 2003, and there was an absence in the records of a reported neck condition for about 14 years, from 1989 to 2003.  As such, chronicity of a neck condition was not established and it was less likely than not that the Veteran's cervical spine disability was a result of his military service to include inservice complaints of neck and shoulder pain.  The examiner further opined that the Veteran's cervical spine disability was less likely than not proximately due to or the result of his service-connected disabilities nor was this disability worsened by his service-connected left shoulder and low back disabilities.  The examiner again cited to the inservice normal findings, while the  Veteran was diagnosed with left shoulder disability which was treated during service, and the examiner also indicated that there was not a causal connection between low back pain and the degenerative changes in the cervical spine.

In sum, negative opinions were provided by the examiner as whether the current cervical spine disability is etiologically related to service as well as to a service-connected disability.  However, secondary service connection has not been formally adjudicated by the AOJ and is not on appeal at this time; therefore, it will not be addressed herein in light of the unfavorable opinion.  

The Board acknowledges the inservice complaints of neck pain.  However, as explained by the recent VA opinion, while there were inservice complaints of neck pain, there was no evidence of a fracture or injury in the military; the inservice clinical findings pertaining to the neck, as opposed to the shoulder (which is service-connected), were normal; and the complaints of pain did not result in the Veteran's current diagnoses.  Further, despite the Veteran's complaints of neck pain from service onward, the examiner pointed to the lack of documentation of any neck pain or disability for over a decade after the Veteran's separated from service.  The Board also finds this absence of neck complaints to be significant because the Veteran was reporting other medical problems, such as cardiovascular issues, during that time period.  Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).  

In sum, the examiner essentially indicated that there was no chronicity regarding neck pain after service.  The Board finds that the Veteran is competent in general to report neck pain, when viewing the record, he is not credible in his statements that the neck pain remained on a continuous basis since service.  In fact, in this case, there is not just a lack of evidence; rather, there is also evidence showing normal findings on the separation examination.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  As such, the notation by the VA examiner that there was no chronic neck disability after service is supported in the record.  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez.  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

In this case, the examiner was aware of the Veteran's medical history including the inservice findings, made mention of the pertinent findings relative to the cervical spine both during and after service, examined the Veteran, provided a fully articulated opinion, and also furnished a reasoned analysis.  The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).  Accordingly, the Board finds that the conclusion, that the Veteran's cervical spine disability was not a result of his military service to include inservice complaints of neck and shoulder pain has a solid basis and is consistent with the record, overall.  

The Board is fully aware that, according to Jandreau, the Veteran is competent to report what a doctor told him (there is a relationship to service).  However, his statements are entitled to no greater weight than the evidence upon which his statement is based.  Beyond a blanket statement, the reasoning behind the medical conclusion is lacking in detail.  As such, the lay/medical evidence is accorded little probative weight.  His lay evidence is far less probative than the VA opinion which includes a detailed rationale.

In sum, the record establishes that there was no manifestation or diagnosis of arthritis within one year of either period of service.  Although the Veteran complained of neck pain during service, the most probative evidence concludes that current cervical spine disability is not etiologically related to those inservice complaints, or otherwise to either period of service.  


ORDER

Service connection for a cervical spine disability is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs