Citation Nr: 1305041 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 12-10 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Hartford Regional Office in Newington, Connecticut THE ISSUE Entitlement to service connection for a cervical spine disability, claimed as secondary to a service-connected lumbosacral/dorsal spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active military service from April 1943 to November 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals additional evidence that will be considered by the Board in this appeal. In his substantive appeal, the Veteran requested a hearing at the RO before a member of the Board. However, in a May 2012 statement, the Veteran withdrew his request for a hearing and indicated that he wanted his case forwarded to the Board without further delay. In August 2012, the Board remanded this matter for additional development and readjudication. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT Cervical spine disability was not present until more than one year following the Veteran's discharge from service, is not etiologically related to service, and was not caused or permanently worsened by service-connected disability. CONCLUSION OF LAW A cervical spine disability was not incurred in or aggravated by active service, its incurrence or aggravation during such service may not be presumed, and it is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in October 2010, prior to the initial adjudication of the claim in January 2012. The duty to assist was also met in this case. All pertinent service treatment records, private treatment records, and VA treatment records have been obtained. VA examinations with respect to the issue on appeal were obtained in November 2011 and August 2012. 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 August 2012 VA examination obtained in this case was adequate. The examiner considered all of the pertinent evidence of record and the statements of the Veteran, and specifically provided a rationale for the opinions stated, relying on and citing to the records reviewed. The Board is cognizant that a few additional VA treatment records were added to the Veteran's Virtual VA electronic claims file in September 2012 and January 2013 after the August 2012 VA examination was conducted. However, the continued findings and treatment for a cervical spine disorder shown in those few documents were also shown in the voluminous records already reviewed by the examiner. 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. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria 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; 38 C.F.R. § 3.303. 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). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). 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 The Veteran does not contend and the evidence does not show that he had a cervical spine disorder in service or until many years thereafter. The Veteran has asserted that he has developed increased neck pain as a result of his service-connected lumbosacral/dorsal spine disability. A July 1998 private CT scan report listed an impression of severe multilevel mid and lower cervical spine degenerative disc disease, including right sided upper and mid facet degenerative joint disease with foraminal encroachment, as well as C4-5 malalignment. In an August 1998 letter, a private physician, J. M. A., M. D., simply noted the Veteran's history of a service-connected disability of the neck, back, and knees as well as reiterated the findings of the July 1998 cervical spine CT scan. VA treatment notes dated from 2001 to 2011 show complaints of chronic neck pain and findings of degenerative joint disease (DJD) with prescribed physical therapy as well as cervicalgia. An April 2011 VA treatment record notes cervical X-ray findings of multilevel degenerative disease from 2009. The examiner listed an assessment of neck pain, noting that the Veteran's history and physical examination showed superficial tenderness on palpation suggestive of cervical myositis. He highlighted the absence of motor symptoms/radiation of neuropathic pain, noting that those findings made radiculopathy less likely. His plan for treatment included Botox injections and issuance of a neck collar. VA physical therapy notes dated in August and September 2011 indicate that the Veteran's cervical dystonia was resistant to treatment. A September 2011 VA neurology record notes a one year history of neck stiffness and pain. The examiner noted that the physical findings were significant for severe, bilateral, sternocleidomastoid muscle (SCM) spasms and tenderness. The likely diagnosis was listed as painful cervical dystonia. In a September 2011 letter, the Veteran's VA treating physician reported that the Veteran's chronic and worsening neck pain was a consequence of his old back injury and that it had progressed to a point that the Veteran was significantly disabled. In a November 2011 VA examination report, the VA examiner diagnosed DJD of the cervical spine. He opined that the disability was less likely than not proximately due to or the result of the Veteran's service-connected disability. In this regard, the VA examiner reported that the September 2011 statement provided by the Veteran's treating VA physician was an unsubstantiated opinion that was made without access to the Veteran's claims file and without reasoning or evidence to support it. Thereafter, the examiner highlighted that the Veteran sustained a lifting injury of his lumbar spine in 1944 and that there was no documentation of a neck injury in service or onset of such for 40-50 years after the initial lumbar spine injury. He concluded that there was no objective evidence in the record that the Veteran's lumbar spine condition caused or contributed to his cervical spine condition. VA chiropractic clinic progress notes dated from December 2011 to June 2012 show impressions of neck pain that appeared consistent with mechanical pain, myofascial versus arthritic. In April and June 2012, it was noted that the Veteran was reporting improvement and that symptoms were currently manageable. A VA Neck Conditions Disability Benefits Questionnaire (DBQ) was completed in August 2012. After reviewing the claims file, to include conflicting medical evidence of record, and examining the Veteran, the examiner diagnosed cervical spine spondylosis. Thereafter, the examiner opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected condition. He noted that there was insufficient objective medical evidence to establish a nexus between the Veteran's service-connected thoracolumbar spine condition and/or his active military service and his cervical spondylosis. The examiner indicated that the Veteran did not recall nor did his service records document him sustaining a cervical spine, head or facial injury, disorder, condition or problem during his active military service. The examiner also opined that the Veteran's cervical spine osteoarthritis (spondylosis) was age related and not caused by, resulting from, or aggravated by his service-connected thoracolumbar spine disability or by active military service based upon a reasonable degree of medical certainty and probability. The examiner further highlighted that there were no studies published in peer reviewed professional journals with a high degree of supporting medical evidence establishing an association between greater severity and higher frequency of symptomatic cervical spondylosis in individuals with thoracolumbar conditions than in the general public. Additional VA treatment records dated in 2012 and 2013 show the Veteran received injections for cervicalgia torticollis in November 2012. As an initial matter, the Veteran has not contended nor does the evidence of record show that his current cervical spine disorder is in any way related to his active military service. However, the Veteran has repeatedly asserted that he developed his current cervical spine disorders as a result of his service-connected lumbosacral/dorsal spine disability. Thus, the Board will focus its analysis on whether entitlement to service connection for a cervical spine disorder is warranted on a secondary basis. In this case, medical evidence of record demonstrates that the Veteran is currently diagnosed with multiple cervical spine disorders. It is also undisputed that the Veteran is currently receiving VA compensation benefits for a lumbosacral/dorsal spine disability. However, a nexus between the Veteran's current cervical spine disorder and his service-connected lumbosacral/dorsal spine disability is not shown. In his September 2011 letter, the Veteran's VA treating physician did not provide a rationale for his opinion that the Veteran's chronic and worsening neck pain was a consequence of his old back injury. The Board notes that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In addition, the Board notes that the November 2011 VA examiner's medical opinion is also inadequate for adjudication purposes, as he failed to opine as to whether the Veteran's cervical spine disorder was aggravated by his service-connected lumbosacral/dorsal spine disability. In contrast, the August 2012 VA examiner came to the conclusion in his examination report and medical opinion that the Veteran's claimed cervical spine condition was less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected condition. The examiner also clearly opined that the Veteran's cervical spine osteoarthritis (spondylosis) was age related and not caused by, resulting from, or aggravated by his service-connected thoracolumbar spine disability based upon a reasonable degree of medical certainty and probability. The examiner provided a complete rationale for his stated opinions, cited to his review of the claims file, the conflicting evidence of record, and studies published in peer reviewed professional journals. As such, the Board finds that the most persuasive medical evidence that specifically addresses the question of whether the Veteran's service-connected lumbosacral/dorsal disability proximately caused or aggravated his current cervical spine disorders weighs against the claim. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The Board acknowledges the Veteran's contentions that his current cervical spine disorder was caused or aggravated by his service-connected lumbosacral/dorsal spine disability. The Board has found no reason to doubt the Veteran's credibility. Never the less, whether the Veteran's cervical spine disability was caused or permanently worsened by his service connected back disability is a medical question that the Veteran, as a lay person, is not competent to answer. As discussed above, the preponderance of the medical evidence shows that it was not. Accordingly, the Board must conclude that service connection is not warranted for the Veteran's cervical spine disability. 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, claimed as secondary to a service-connected lumbosacral/dorsal spine disability, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs