Citation Nr: 1305263 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 10-27 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for cervical spine degenerative disc disease (DDD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James Alsup, Counsel INTRODUCTION The Veteran served on active duty from March 1990 to March 1994. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which denied the Veteran's claim for service connection for a neck condition. The Veteran disagreed and perfected an appeal. FINDING OF FACT A preponderance of the evidence supports a finding that the Veteran's cervical spine DDD is related to injuries sustained in a motor vehicle accident during service. CONCLUSION OF LAW Degenerative disc disease of the cervical spine was incurred in the Veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for his cervical spine DDD. He contends that his current neck condition resulted from a motor vehicle accident (MVA) he suffered during service. The Board will briefly address preliminary matters and then render a decision on the issue on appeal. 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). In this case, the Veteran was informed in a March 2009 letter of the evidence needed to substantiate a service connection claim and of the steps VA would take to assist him in developing evidence to support his claim. In addition, the Veteran was informed of how VA determines a disability rating and an effective date. Neither the Veteran nor his representative has alleged or demonstrated any prejudice with regard to the content or timing of notices provided by the RO. Shinseki v. Sanders, 556 U.S. 396 (2009); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The record includes the Veteran's service treatment records, records from private treatment providers and reports of examination of VA providers regarding the Veteran's neck condition. The record also includes medical articles that pertain to cervical injuries resulting from MVAs, statements of the Veteran's spouse and statements of the Veteran regarding the neck symptoms manifested by the Veteran. For those reasons, the Board finds that VA satisfied the duties to assist and notify the Veteran. In addition, as the Board grants the Veteran's claim, no prejudice can result from insufficient notice or development. The Board will proceed to a decision. The Veteran essentially claims that he was injured during service when the Humvee he was riding in crashed into the back of a 5 ton truck. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In order to establish service connection or service-connected aggravation for a present disability, there must be (1) evidence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163 at 1166-67 (Fed. Cir. 2004). The evidence includes an April 2010 MRI report that the Veteran's cervical spine manifests mild hypertrophic changes and an August 2011 VA examination report notes a diagnosis of degenerative disc disease (DDD) of the cervical spine. Service treatment records include evidence that the Veteran was injured in a MVA in the summer of 1993 in Somalia, and the Veteran has described the accident in detail in a statement received in April 2009. The crux of the Veteran's claim involves whether there is sufficient evidence of a causal relationship between the present neck disability and the in-service injury. A June 2009 VA examiner determined there was no such relationship because he found no diagnosis of a current chronic neck disorder. An August 2011 VA examiner did not find a relationship between the Veteran's cervical DDD and service, because there was no documentation of treatment of a neck condition for 17 years; instead, he opined instead that the condition resulted from natural aging processes. In contrast, the Veteran submitted the statement of Dr. J.H., a chiropractor who has treated the Veteran. Dr. J.H. submitted an opinion that is supported by examination and treatment of the Veteran, review of the facts describing the MVA and the injury the Veteran received during service, an article describing a study of how the cervical spine reacts during a whiplash injury, and an article regarding correlation of crash severity with long-term symptoms in low velocity MVAs. Dr. J.H. opined that the Veteran's current cervical DDD could have been incurred during service when he was injured in the MVA. The Board is charged with the duty to assess the credibility and weight given to evidence in a claim for entitlement to service connection. See Madden v. Gober, 125 F.3. 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In its assessment of medical evidence, the Board can favor some medical evidence over other medical evidence so long as the Board adequately explains its reasons for doing so. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion that the examiner reaches. The probative value of an examiner's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." See Bloom v. West, 12 Vet. App. 185, 187 (1999). With respect to the probative value of the June 2009 VA examiner's opinion, the Board finds that it was not based on a full evaluation of the Veteran's condition. Specifically, no diagnostic testing was performed to confirm an underlying cause for the Veteran's pain. The subsequent April 2010 MRI evidence in fact confirmed a diagnosis, rendering the June 2009 opinion obsolete. Similarly, regarding the August 2011 VA examiner's opinion, the Board observes that the examiner did not consider the Veteran's credible lay statements regarding the reason why he was unable to seek treatment, and that he self-treated the pain with over the counter medication. The Veteran's statements are credible; they are supported by the statements of his wife and his statements to his treatment providers. There is no evidence of record that contradicts those statements. Therefore, the August 2011 opinion was not fully informed. The Board observes that Dr. J.H.'s opinion that the in-service injury "could" have caused the current DDD does not rise to the level of probability typically required to establish service connection. That is to say, the "at least as likely as not" standard is generally considered to establish the connection. That standard does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. In this case, the Board views the chiropractor's statement in the light most favorable to the Veteran, when considered in conjunction with the other evidence of record. Dr. J.H.'s evaluation is supported by clinical evidence of record in service, by the Veteran's credible assertions as to the type of injury sustained, and his continuing symptoms. The chiropractor also further supported his conclusion by supplying medical literature in favor of the conclusion. It is clear from the reading of the totality of the evidence that he believed a relationship was as likely as not. For those reasons, the Board will not penalize the Veteran by holding a private treatment provider responsible for using specific language. In short, the Board finds that a preponderance of the evidence supports a finding that there is a causal relationship between the 1993 in-service MVA and the Veteran's current cervical spine DDD; therefore, service connection is warranted. ORDER Entitlement to service connection for cervical spine DDD is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs