Citation Nr: 1306375 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 11-23 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for cervical strain with fusion and multi-level degenerative changes with a vertebral slip. 2. Entitlement to service connection for cervical strain with fusion and multi-level degenerative changes with a vertebral slip. REPRESENTATION Appellant represented by: Ronald A. Steinberg, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from February 1942 to October 1945. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Detroit, Michigan. In June 2011, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. In June and December 2010 correspondence from the Veteran's attorney, he indicated that the Veteran wished to testify at a hearing before the Board at the local RO. In an October 2012 letter, the attorney stated that neither he nor the Veteran desired a hearing any longer, and would not appear for such a hearing. As such, the Board finds that there is no Board hearing request pending at this time. See 38 C.F.R. § 20.702(e) (2012). The Board has considered documentation included in the Virtual VA system in reaching the determination below. No new records pertinent to this appeal were found therein. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a February 2005 decision, the Board denied service connection for cervical spine disorder, claimed as the residual of a neck injury. 2. The evidence pertaining to cervical strain with fusion and multi-level degenerative changes with a vertebral slip received subsequent to the February 2005 Board decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 3. The Veteran has cervical strain with fusion and multi-level degenerative changes with a vertebral slip that is related to service. CONCLUSIONS OF LAW 1. The February 2005 Board decision that denied service connection for a cervical spine disorder, claimed as the residual of a neck injury, is final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2012); 38 C.F.R. § 20.1100 (2012). 2. New and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for cervical strain with fusion and multi-level degenerative changes with a vertebral slip. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 3. Cervical strain with fusion and multi-level degenerative changes with a vertebral slip was incurred in active military service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance A discussion addressing whether VA's duties to notify and assist the Veteran have been complied with is not warranted. To the extent necessary, VA has fulfilled its duties to notify and to assist the Veteran in the development of his claims. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In light of the determination reached in this case, no prejudice will result to the Veteran by the Board's consideration of this appeal at this time. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). Analysis In a February 2005 Board decision, the Veteran's claim for service connection for a cervical spine disorder, claimed as the residuals of a neck injury, was denied. The decision is final. In 2008, the Veteran sought to reopen his previously denied claim. A claim shall be reopened and reviewed if "new and material" evidence is presented or secured with respect to a claim that is final. For claims received on or after August 29, 2001, a claim shall be reopened and reviewed if "new and material" evidence is presented or secured with respect to a claim that is final. Evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. "Material" evidence is evidence which relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2012). In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to the merits of the claim on the basis of all of the evidence of record. Since the February 2005 Board decision, private treatment records and sworn hearing testimony have been received. This evidence is new and material. In the February 2005 Board decision, service connection was denied for a cervical spine disorder, claimed as the residuals of a neck injury, because the record did not show a link between this disorder and service. Since the 2005 decision, positive nexus evidence has been received. Specifically, in reports dated from March 2005, November 2010, and July 2011, a private physician, M.L., opined that the Veteran's current neck disorder is due to the in-service injury he sustained to his neck. Additionally, the Veteran submitted a July 2010 statement of another private physician, D.C., who also opined that the Veteran's current disorder is related to his World War II neck injury. When viewed in the context of the reasons for the prior denial, the added evidence cures a prior evidentiary defect if presumed credible. As such, the Veteran's claim is reopened, and the merits of the claim will now be addressed. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing service connection is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). 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; 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a disorder when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). "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 v. Brown, 6 Vet. App. 465 (1994) (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.") The Veteran in this case has been diagnosed with cervical strain with fusion of C5-C7, documented, for example, on VA examination in March 2011, as well as multi-level degenerative changes with a vertebral slip, documented in a July 2011 private medical record. Thus, the question is whether his current disability is related to active service or events therein. See 38 C.F.R. § 3.303. As for the in-service incurrence of the condition, the Veteran contends that during service, he operated a .50 caliber machine gun which was mounted on a half-truck. Around his position was a large steel ring, which was welded to the structure of the bed of the truck. When he was in position, his head and neck projected only slightly above the steel ring, due to his small stature. On one occasion, while riding the convoy, the half-truck was struck broadside by a tanker that was carrying fuel. The Veteran contends that his neck struck the steel ring, causing injury. He contends he was taken to a field hospital, received some pain medication, and was returned to his unit. When he was discharged from service and sent home, he sought treatment from his family doctor. He contends he was no longer able to pursue a career as a jockey because of the pain in his neck, arms, and hands following the incident. Initially, the Board notes that as the claimed neck injury in this case was not incurred during combat, 38 U.S.C.A. § 1154(b) does not apply. Further, in this case, some of the Veteran's service treatment records have been lost. See, e.g., June 2010 Formal Finding. Given the absence of such records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (the BVA has a heightened duty in a case where the service treatment records are presumed destroyed). Of the service treatment records that have been obtained, there is no mention of a neck injury or of the accident with the tanker. Despite this, the Board finds the lay evidence of record here to be probative on the issue of in-service incurrence. The Veteran has submitted "buddy" statements, as well as the signed statement of a nurse who worked for his family physician in 1945 and performed x-rays of the Veteran's neck. Taking the buddy statements first, in a February 2003, letter, J.W. stated that he served in the same company as the Veteran, and corroborated the fact that the Veteran was assigned to a personnel carrier, a half-truck mounted with a .50 caliber machine gun while they were stationed in Germany during World War II. In February 2003 and July 2003 statements, another buddy, C.H., stated that while he was not personally involved in the incident in which the Veteran's neck was injured, he was in the same battle area when the incident happened. That area was the Saar-Moselle Triangle area of Germany. He stated he was aware that the Veteran had been injured, but was unaware of the severity of the injury. A listing of the company roster shows that C.H. and J.W. both served in Company D of the 21st Tank Batallion with the Veteran. The Veteran also submitted photos of himself in service, including photos of the type of tanker that struck his vehicle in service. Additionally, in a June 2003 statement, M.D., a nurse employed by the Veteran's family physician in 1945, Dr. M., confirmed the Veteran's account of the post-service treatment for his injury. The statement was authored by the Veteran, and signed by him, M.D., and a notary. In the statement, the Veteran described his in-service neck injury. He stated that upon discharge, he sought treatment from Dr. M., who performed x-rays. The x-rays showed two hairline fractures in two vertebras. He stated that an x-ray of his chest was also performed, which showed enlargement of the heart. He stated that due to the neck injury, he lost power in his arms and could no longer ride horses. He stated that despite this, he still worked in the horse racing business, and worked for Hazel Park Racing from 1949 to 1996. The Board finds that the totality of this evidence supports the in-service incurrence of a neck injury as contended. In addition to the evidence above, the Board further finds the Veteran is both credible and competent to report his symptoms of neck pain from the time of the in-service accident. The Court of Appeals for Veterans Claims has held that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board is additionally persuaded by the positive nexus evidence of record. As described above, the Veteran's neck injury has been related to the in-service injury. In a September 1998, the Veteran was seen for a private medical report related to litigation surrounding a car accident. The physician stated that he felt the Veteran's degenerative changes of the neck had been present for many years, and was exacerbated by the accident. In a March 2005 report, M.L. stated that the Veteran has suffered from continuous neck pain since his World War II accident. In a July 2010 report, D.C. found the Veteran's current symptoms, including neck and arm pain and limitation of motion, were "undoubtedly" a result of the World War II neck injury and was exacerbated by a later car accident. In a November 2010 report, M.L. stated that the Veteran suffered severe trauma to his neck in service, with resulting continuous pain. The auto-effusion of the Veteran's neck was found to be a "direct consequence" of the injury. In a July 2011 report, M.L. found that at the age of 94, the Veteran continues to experience severe neck pain from the in-service accident. He has been checked for spinal cord damage, and x-rays showed multi-level severe degenerative changes with a 3 mm vertebral slip. The instability and degenerative changes were remote, rather than acute, and by history were found directly related to the in-service injury. M.L. stated there was "no question in [his] mind" that the current symptoms were attributable to the neck injury in service. In contrast to the private medical opinions are the opinions of two VA examiners. A January 2004 VA examiner diagnosed the Veteran with cervical fusion, congenital with mild degenerative changes. The examiner opined that the current diagnosis and manifestations were not likely due to the injury sustained as a machine gunner in service. A March 2011 examiner stated that there was no documentation of a cervical injury. Based on the January 2004 findings and a July 1997 CT scan, which showed the fusion as well as posterior osteophytic spurring, the examiner agreed that the Veteran's cervical fusion is likely congenital and not related to service. An evaluation of 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 reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Id. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). On review of all of the evidence, the Board finds that at a very minimum, the evidence is in equipoise as to whether the Veteran's cervical strain with fusion and multi-level degenerative changes with a vertebral slip is related to service. The opinion of the January 2004 examiner is of diminished probative value because it seems the examiner focused exclusively on the diagnosis of cervical fusion. Contemporaneous records show other problems as well. An October 1997 private medical report showed a diagnosis of cervical myelopathy concomitant with bilateral C8-T1 dermatome dysesthesias and weakness in the left C7-8 root distribution. An April 1999 private medical record showed cervical spondylosis. October 2003 records showed diagnoses of severe degenerative disease and possible stenosis. The examiner did not address these conditions or their possible relationship to service. The opinion of the March 2011 examiner is of diminished probative value in that the examiner found no history of cervical spine injury. As discussed above, the Board has found otherwise. The March 2011 examiner also focused exclusively on the diagnosis of cervical fusion. By contrast, the opinions expressed in the private medical records are fully adequate for the purposes of adjudication. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The opinions were based on a history of treatment of the Veteran and a review of pertinent history. The Board notes that a medical opinion formed on the basis of the Veteran's reported medical history cannot be rejected without the Board first finding that the Veteran's allegations are not credible. Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that Board may not disregard a medical nexus opinion solely on the rationale that the medical opinion was based on an "uncorroborated" history given by the Veteran of in-service acoustic trauma where the history has not been found by the Board to be inaccurate; the case involved a Korean War Veteran and 1973 fire destroyed records); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2005); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding the Board cannot determine that a Veteran's statements lack credibility merely based on a lack of such documentation in the service treatment records). The Board finds no reason here to doubt the credibility of the statements made by the Veteran. His statements have been both internally consistent, and consistently reported to medical providers in the course of receiving treatment. In sum, resolving any doubt in favor of the Veteran, the Board finds that service connection for cervical strain with fusion and multi-level degenerative changes with a vertebral slip is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The claim of entitlement to service connection for cervical strain with fusion and multi-level degenerative changes with a vertebral slip is reopened. Service connection for cervical strain with fusion and multi-level degenerative changes with a vertebral slip is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs