Citation Nr: 1307269 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-21 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbosacral spine disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1988 to March 1994 and from August 2005 to November 2006, including service in Iraq from November 2005 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In his June 2009 substantive appeal, the Veteran requested a hearing before a Decision Review Officer at the RO. A hearing was scheduled for April 2010 but the Veteran requested that it be cancelled. As such, his hearing request is deemed withdrawn. In March 2011, the Board remanded the case for additional development. As discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In June 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The Board subsequently sought clarifying addenda to the initial report. The requested opinion and addenda were received by the Board, and in December 2012 the Board informed the Veteran that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. In February 2013 written argument, the Veteran's representative, Veterans of Foreign Wars, acknowledged the specialist's report and addenda and submitted further argument in response. Accordingly, the Board will proceed with the consideration of his case. The Board notes that, in addition to reviewing the Veteran's paper claims folder, it has surveyed and considered the contents of his Virtual VA file. The additional evidence contained therein is considered part of the constructive record under VA's current guidelines. FINDING OF FACT The preponderance of the evidence shows that the Veteran's cervical spine disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including to his service-connected low back disability. CONCLUSION OF LAW A cervical spine disability was not incurred in or aggravated by service; nor was it proximately caused or aggravated by service-connected lumbosacral spine disability. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. The Board finds that VA has satisfied its duty to notify under the VCAA. A September 2008 letter provided notice, before the initial unfavorable decision in November 2008, regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The same letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. The Veteran's VA and private treatment records, service treatment records (STRs), and administrative personnel records have been obtained. In the March 2011 remand, the Board directed the AOJ to provide the Veteran with an opportunity to submit the names of any providers who treated his cervical spine. The AOJ complied with this directive via letter in April 2011, and the Veteran made no response. The remand also directed the AOJ to associate any pertinent outstanding records with the claims file. Accordingly, VA treatment records dated through January 2013 were associated with the electronic paperless file. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. Pursuant to the March 2011 remand, the Veteran was provided with a VA examination in June 2011. The Board found that this examination report was adequate for evaluation purposes because the examiner conducted an interview, clinical evaluation, and review of the Veteran's medical history and records. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). However, the opinion did not address whether the Veteran's service-connected low back disability aggravated an existing cervical spine disorder. Accordingly, the Board requested a VHA expert medical opinion to address this question. The opinion sought and clarifying addenda have been obtained and associated with the Veteran's claims file. As such, the Board finds that the AOJ has substantially complied with the previous remand directives such that no further action is necessary in this regard. D'Aries, supra. The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. No further assistance to develop evidence is required. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Service Connection Claim In documents of record, the Veteran contends that his cervical spine pain began during his second period of military service, from August 2005 to November 2006, which included service in Iraq from November 2005 to October 2006. Alternately, he contends that a cervical spine disorder was caused or aggravated by his service-connected low back disability. Therefore, the Veteran asserts that service connection is warranted for his cervical spine disability. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition, a disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310. Further, the United States Court of Appeals for Veterans Claims (Court) has held that the term "disability" as used in 38 U.S.C.A. § 1110 should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that, effective October 10, 2006, 38 C.F.R. § 3.310 was amended in order to implement the holding in Allen regarding secondary service connection on the basis of the aggravation of a nonservice-connected disorder by a service-connected disability. See 71 Fed. Reg. 52744 (2006). As this claim was filed in September 2008, the amended regulation applies. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. 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); see also Jandreau, supra. 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 United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court 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. See Dalton, 21 Vet. App. at 38; Caluza, 7 Vet. App. at 511. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez, supra. 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, 22 Vet. App. at 304; see also Stefl, 21 Vet. App. at 124 ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The record shows that the Veteran has a current cervical spine disability. Cervical spine x-rays taken in July 2008 by the VA show mild narrowing of the right neural foramen at C3/4 and C4/5. VA treatment records dated October 2008 show complaints of intermittent chronic neck pain and a diagnosis of chronic neck pain with cervico-dorsal muscle spasms. Physical examination findings were not suggestive of cervical radiculopathy. The Veteran was prescribed and underwent physical therapy with a goal of decreasing neck pain intensity to 2 out of 10. VA treatment records show physical therapy in February and March 2009. A letter from private physician Dr. V dated November 2010 states that the Veteran presents with strong neck pain, episodes of difficult range of movements, and continuous muscle spasm. The June 2011 VA examiner diagnosed mild narrowing of the right neural foramen at C3/C4 and C4/C5 levels based on the July 2008 x-rays, record review, interview with the Veteran, and physical examination. A VA neurosurgeon provided a VHA expert medical opinion in August 2012 and diagnosed cervical neck pain based on a review of the record. The Board finds that the Veteran has a current cervical spine disability, namely chronic neck pain with cervico-dorsal muscle spasms and mild narrowing of the right neural foramen at C3/4 and C4/5. The Veteran's STRs show no reference to any problems with the neck or cervical spine. They include an October 2006 report of medical assessment in relation to his deployment that shows that the Veteran reported complaints of back pain, muscle aches, and other unrelated conditions since his last assessment. A January 2007 VA report of a review of systems includes review of the neck and musculoskeletal system and shows no abnormalities were noted. Neurologic examination shows general findings of no gross motor and sensory deficit. The report of a March 2007 post-deployment health reassessment (an STR) shows that the Veteran reported various conditions he currently had since returning from deployment, including a report of back pain. That report does not contain any reference to a neck or cervical spine complaint. The Veteran had a VA general examination in May 2007 in response to a claim of service connection for low back and right heel disorders. At that time he did not report any complaints regarding the cervical spine. Upon examination that included the neck and musculoskeletal system, no cervical spine abnormality was noted, and the Veteran had full active range of motion of the cervical spine; no tenderness on palpation, and no functional loss. After examination the examiner did not diagnose any cervical spine disorder. In VA a treatment record dated October 2008 the Veteran reported a history of repetitive trauma to the neck during service. During the June 2011 VA examination of his cervical spine, the Veteran reported that when he was in Iraq in 2006 he started feeling cervical pain not related to trauma. He reported he was never evaluated for the cervical pain until the 2008 VA evaluation. The Veteran is competent to describe the subjective symptom of cervical neck pain. See Layno, supra (a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran is therefore competent to report that he injured his neck during service. The Board acknowledges that reports of "back pain" post deployment could encompass cervical pain. Giving the Veteran the benefit of the doubt, the Board finds that there was an in-service incurrence of cervical pain. The remaining inquiry is whether the Veteran's current cervical spine disability is related to an injury sustained in service, or to his service-connected low back disability. The record contains several medical opinions addressing direct service connection. The only positive opinion is the November 2010 letter from private physician Dr. V states, "it is more probable than not that his back and neck problem are service connected secondary to his duties while at service." She describes these duties as lifting and moving heavy equipment and wearing vest that caused pressure to his lower back. She stated that "these problems cause bad posture, loss of correct alignment and loss of curvature of cervical, thoracic and lumbar lordosis...by consequence patient could present disc bulging and herniation; also radiculopathy and neuropathy." The VA neurosurgeon found that Dr. V's opinion is speculative in his VHA medical expert opinion and the Board agrees. It does not meet the initial inquiry in determining probative value of a medical opinion, because there is no indication that Dr. V was fully informed of the pertinent factual premises of the case. While a review of the claims file is not required, there is no evidence that she treated a Veteran for a long period of time or took a factually accurate medical history. Moreover, it is not a fully articulated opinion. Her use of the phrase "could present" is speculative language and does not provide the degree of certainty required for medical nexus evidence. Further, the problems she describes (disc bulging, herniation, radiculopathy, neuropathy) are not problems that have been diagnosed in the Veteran's cervical spine. Therefore, the Board finds that Dr. V's opinion is not probative. The June 2011 VA spine examination included an interview of the Veteran, taking a medical history, physical examination, and record review. The examiner noted the Veteran's report of feeling cervical pain not related to trauma in Iraq in 2006. The examiner opined that the Veteran's mild narrowing of the right neural foramen at C3/C4 and C4/C5 levels was less likely as not related to or had its onset in service. His rationale was based on the following: there was no evidence of neck pain or cervical pain reported in the STRs; the first clinical evidence of any report by the Veteran of cervical pain was two years after the period of service ended; there was no evidence of neck pain at the May 2007 general VA examination; and there was no medical evidence of any complaint or other indication of a neck condition within one year of release from active service in November 2006. The examiner also opined that the Veteran's mild narrowing of the right neural foramen at C3/C4 and C4/C5 levels was most probably related to the normal progression of aging. The VA examiner was fully informed of the pertinent factual premises of the case and provided a fully articulated opinion with supporting rationale. The Board notes that the examiner did not discuss the Veteran's lay statement regarding onset in his rationale; however "[t]here is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file" to render an adequate opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); see Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) ("[T]here is no reasons or bases requirement imposed on examiners."). The Board finds this opinion to be probative. The VA neurosurgeon who provided an August 2012 VHA expert medical opinion and addenda also addressed direct service connection. The neurosurgeon noted his review of the Veteran's claims file. He opined that there was no link between the Veteran's complaints of neck pain and his active service. In an addendum dated September 2012 he clarified that it is far more likely that the Veteran's current neck/cervical spinal complaints are age-related, and that he found no potential connection between the Veteran's service record and his complaints. The neurosurgeon provided a rationale for his opinion. He noted that the March 2007 post-deployment health assessment made no mention or reference to neck pain or injury while deployed, and that the first presentation of cervical spine complaints was in July 2008. He also noted that there is no evidence of symptoms or physical findings of cervical radiculopathy or instability. X-ray assessment of the cervical spine in July 2008 showed no fracture, subluxation, or deformity; indeed the x-ray showed only minimal age-related findings as C3/4 and C4/5. He noted that no pathology was identified and treatment recommendations (NSAIDs, physical therapy) were appropriate for a 40 year old male with non-specific neck pain. The neurosurgeon felt that Dr. V's opinion was complete speculation, and was not based in science, fact, or the Veteran's medical record. The VA examiner's opinion, on the other hand, was based on a complete assessment of the Veteran that showed normal cervical range of motion and found no abnormality or radiculopathy on examination. The neurosurgeon opined that the examiner's findings and conclusions are credible. Finally, the neurosurgeon stated that there was no identifiable abnormality in the neck or cervical spine by complaint, examination, or x-ray image that might suggest a traumatic cause. He concluded that the Veteran's complaints of neck pain are age-related. The Board finds that this medical opinion is probative, as it was predicated upon a review of the record and is supported by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board notes that the Veteran has contended on his own behalf that his cervical spine disability is related to his military service. Lay evidence may be competent to establish medical etiology or nexus. Davidson, supra. However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In this case, the Veteran's lay statements show a first mention of cervical spine disability in his original claim dated September 2008. In VA a treatment record dated October 2008 the Veteran reported a history of nonspecific repetitive trauma to the neck during service. In his June 2009 substantive appeal, the Veteran stated that "my cervical and lumbar conditions developed during my active duty in Iraq due to the heavy vest and equipment I carried on my back." The Veteran reported to the June 2011 VA examiner that when he was in Iraq in 2006 he started feeling cervical pain not related to trauma. In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's cervical neck pain and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, he does not possess the medical knowledge to attribute his chronic cervical neck pain to any specific instance of his military service. Here, while the Veteran is competent to describe his cervical pain symptoms, the Board accords his statements regarding the etiology of the claimed disorder little probative value as he is not competent to opine on such a complex medical question. In contrast, the VA examiner and VHA medical expert took into consideration all the relevant facts in providing an opinion, to include the Veteran's history, current medical condition, and other causes for his symptomatology. Therefore, the Board accords greater probative weight to the 2011 VA examiner's opinion and 2012 VHA expert opinion. Based on the foregoing, there is no probative evidence of a nexus between the Veteran's current chronic cervical pain and his military service. Accordingly, he is not entitled to service connection on a direct basis. Moreover, the Board observes that the Veteran has alleged a continuity of cervical pain symptomatology since his military service. However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Neither chronic neck pain with cervico-dorsal muscle spasms nor mild narrowing of the right neural foramen are among the explicitly recognized chronic conditions; therefore this claim cannot be granted based on continuity of symptomatology. With respect to the theory of secondary service connection, the record contains only two medical opinions, both of which are negative. The 2011 VA examiner opined that the Veteran's mild narrowing of the right neural foramen at C3/C4 and C4/C5 levels was not caused by or related to the service-connected low back disability. He provided the rationale that the cervical and lumbar spines are two different anatomical regions supplied by different nerves and bony structures. However, he did not address the question of aggravation, and the Board referred to the case for VHA medical expert opinion. The resulting VHA expert opinion, provided by the VA neurologist, stated that it is "far more likely that this Veteran's current neck/cervical spinal complaints are age-related rather than related to his service-connected low back disability." The neurosurgeon stated that he could not identify any potential connection or relationship between the Veteran's cervical spine complaints and service-connected low back disability. He further opined that it is far more likely that the low back disability did not aggravate or worsen his neck complaints or cervical spine disability. He provided the rationale that he did not identify any evidence that the Veteran's cervical spine disability was aggravated by his low back disability and he could not find any relationship whatsoever between the low back disability and his cervical spine complaints. The Board finds that this medical opinion is probative, as it was predicated upon a review of the record and is supported by a sufficient rationale. See Prejean, supra. The Veteran did not submit any lay evidence contending on his own behalf that his cervical spine disability is related to his low back disability. Based on the foregoing, there is no probative evidence that the Veteran's service-connected low back disability caused or aggravated his current cervical spine disability. Accordingly, he is not entitled to service connection on a secondary basis. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for cervical spine disability. Therefore, his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for cervical spine disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs