Citation Nr: 1307704 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-28 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for cervical spine degenerative arthritis and degenerative disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran had active duty service from March 1950 through March 1954. This period of active duty included service in Korea from September 1950 to July 1951. The service documentation ("Expeditions-Engagements-Combat Record") strongly suggests that the Veteran's participation constituted combat, and combat was in fact conceded in a July 2006 rating decision granting service connection for posttraumatic stress disorder. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified during a July 2012 Travel Board hearing that was held at the RO before the undersigned Acting Veterans Law Judge. A transcript of those proceedings is associated with the record. In September 2012, the Board remanded this matter for further claims development, to include efforts to obtain additional VA treatment records, arranging the Veteran for a VA cervical spine examination, and readjudicating the Veteran's claim. The Board is satisfied that the action directed in its remand has been performed. 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). FINDING OF FACT The Veteran's cervical spine degenerative arthritis and degenerative disc disease have not been shown to have been incurred during service, nor have they been shown to be related in any way to his active duty service. CONCLUSION OF LAW The criteria for service connection for cervical spine degenerative arthritis and degenerative disc disease have not been met. 38 U.S.C.A. §§ 1103, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as arthritis, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board further notes that 38 U.S.C.A. § 1154(b) provides that, in the case of a veteran who engaged in combat with the enemy during a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation during service. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996); see also Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996); 38 C.F.R. § 3.304(d). However, 38 U.S.C.A. § 1154(b) does not address the questions of the existence of a present disability or of a nexus between such disability and service. See also Caluza v. Brown, 7 Vet. App. 498, 507 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). II. Cervical Spine Degenerative Arthritis and Degenerative Disc Disease In his claims submissions, lay statements, and July 2012 Travel Board hearing testimony, the Veteran asserted that he sustained a neck injury as a result of his active duty service, which included combat service in Korea and involved wearing a six and a half pound helmet on a daily basis and regularly diving into fox holes. Although he does not point to a specific incident of neck or cervical spine trauma, he does vaguely allege that he "jammed his neck" during service. In doing so, however, he does not point to a specific in-service incident. During his Travel Board hearing, he acknowledged that he did not seek treatment for his neck prior to 2002, at which time he reportedly began receiving VA medical center treatment for his neck. Service personnel records in the claims file corroborate that the Veteran served in Korea from September 1950 to July 1951. The service treatment records, however, do not reflect any in-service complaints of neck symptoms nor do they indicate any in-service treatment related to the Veteran's neck or cervical spine. In that regard, physical examinations performed in January 1948 and March 1950 did not reveal any abnormalities of the neck or cervical spine. Similarly, the Veteran did not report any prior or current neck or cervical spine symptoms at either examination. The Board also observes that there are no records pertaining to any medical treatment received by the Veteran during his service in Korea. A March 1954 separation examination report, which was prepared after the Veteran's return from service in Korea, reflects that clinical examinations of the neck and spine at that time were also normal. Again, the Veteran did not report any history of neck problems. The post-service records include private treatment records from Dr. G.O.D., which are dated from December 1995 through May 2003. These records do not reflect any complaints of neck or cervical spine problems. In fact, periodic physical examinations performed by Dr. G.O.D. over that time period revealed normal neck and cervical spine findings. The Board notes that the post-service records also include a report from a June 2006 VA examination that was performed to assess the Veteran's service-connected cold injury residuals. During that examination, the Veteran did not report any neck symptoms nor did he report any medical history pertinent to his neck or cervical spine. Nonetheless, in the report, the VA examiner noted that June 2006 cervical spine x-rays revealed disc disease and arthritis from C4-5 through C6-7. The examiner opined that the Veteran's cervical spine disc disease was as likely as not due to his occupation of 35 years as an inspector/manager for a construction company. The post-service records in the claims file indicate that the Veteran first sought VA medical center treatment for his neck in June 2007. During follow-up treatment in August 2007, the Veteran complained of mild to moderate intermittent neck pain. He denied having any specific aggravating factors, but again attributed his neck complaints to wearing a six and a half pound helmet during service in the Korean War. Regarding the onset of his neck complaints, the Veteran reported that his neck pain had started within the previous seven years. Treating physicians diagnosed cervical spine disc disease with arthritis. In December 2008, the Veteran returned to the VA medical center for treatment of his neck. At that time, he produced an August 2008 radiology report which reflected findings of degenerative disc disease at C4-5, C5-6, and C6-7. A cervical spine MRI performed in April 2009 confirmed the existence of degenerative changes that were most significant at C4-5, C5-6, and C6-7. Mild canal stenosis was also seen at C4-5 and C5-6 with mild foraminal narrowing. Subsequent VA treatment records dated through June 2012 reflect ongoing complaints of neck pain that was accompanied by popping, radiation into the shoulders, and numbness of the hands. During treatment in June 2010, the Veteran reported the onset of his neck problems as being ten years before. By his reported history, the Veteran's neck problems would have begun in 2000, which is also consistent with the history he reported during the August 2007 treatment that is discussed above. A repeat cervical spine MRI performed in June 2012 did not reveal any gross changes in comparison to the findings noted in the August 2008 MRI. In November 2012, the Veteran was afforded a VA examination to address the nature and etiology of his cervical spine disorder. During the examination, the Veteran reported neck pain, left-sided neck stiffness, and hearing a crunching noise when he turned his head. Based upon findings from a clinical cervical spine examination, the VA examiner diagnosed cervical spine degenerative disc disease. The examiner, who reviewed the claims file, opined that the diagnosed disorder was less likely than not incurred in or caused by an injury or illness incurred during active duty service, to include wearing a six and a half pound helmet on a daily basis or diving into fox holes. In support of her conclusion, the examiner accurately noted that the Veteran's service treatment records do not reflect that he had a neck condition during service. The examiner also noted that there was no evidence of continuity or chronicity of the Veteran's neck condition. In that regard, she noted that the Veteran's initial complaints of neck pain were noted in the timeframe from 2006 to 2007. Upon careful review and consideration of the evidence in this case, the Board finds that the Veteran is not entitled to service connection for cervical spine arthritis and degenerative disc disease. Although the medical evidence shows that the Veteran has multi-level degenerative disc disease in his cervical spine, the evidence does not show that the Veteran's cervical spine condition was incurred during active duty service, that it manifested within one year from the Veteran's separation from service, or that it is otherwise related to the Veteran's active duty service. As noted above, the service treatment records not only do not reflect any in-service neck or cervical spine injuries, but also do not reflect any subjectively reported history of neck or cervical spine problems. In that regard, the Veteran's March 1954 separation examination report is wholly silent for any neck or cervical spine complaints, and a clinical examination of the neck and spine at that time was normal. In her November 2012 report, the VA examiner concluded that the Veteran's cervical spine degenerative disc disease and arthritis are not likely related to his active duty service, to include the accumulated effects of wearing a six and a half pound helmet for a nine month period and frequently jumping into foxholes. The VA examiner's opinion is supported by a rationale that is based upon a review of the claims file, an accurate understanding of the Veteran's cervical spine treatment history, and clinical findings from the examination. The Board also notes that the VA examiner's opinion is not contradicted by any differing opinion issued by a medical professional. The only other evidence in the record concerning the etiology of the cervical spine disorder is the Veteran's lay opinion, as noted above. In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As to competency, 38 C.F.R. § 3.159(a)(2) reflects that "competent lay evidence" means any evidence not requiring that the proponent have specialized education training or experience; lay evidence is competent if provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. In view of this regulation, the Veteran is certainly competent to provide a probative statement as to the onset and duration of his neck problems, including pain. Nonetheless, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Moreover, in the absence of any medical training or experience, the Veteran is not competent to render an opinion as to the complex question of whether his currently diagnosed cervical spine disorder is related to his active duty service. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010 (arthritis must be established or substantiated by x-ray). Thus, more probative weight is placed on the opinion proffered by the VA examiner, who is a trained medical professional who, as noted above, has examined the Veteran, obtained a report of his history, and reviewed pertinent service and post-service treatment records. To the extent that the Veteran testified during his hearing that he first noticed neck problems six months after his separation from service, the Board finds that the Veteran's testimony in that regard carries grave credibility concerns. In that regard, the Veteran has provided various contradictory statements as to the onset and duration of his cervical spine problems. As noted above, the Veteran did not begin treating his neck until 2007, and, during treatment in August 2007 reported that his neck problems began seven years before (in 2000). During VA treatment in June 2010, he stated that his neck problems began 10 years before which, consistent with the history reported during his August 2007 treatment, would indicate the onset of his neck problems in 2000. Further, the absence of any evidence in the treatment records indicating the onset of neck or cervical spine problems prior to 2000 is entirely inconsistent with the Veteran's assertions that he first noticed neck problems within six months from his separation from service in March 1954. The foregoing inconsistencies cast grave doubt as to the credibility of the Veteran's lay assertions and testimony relating to the onset of the symptoms related to his neck and cervical spine. Accordingly, the Board does not assign probative weight to the Veteran's assertions in that regard. Overall, the preponderance of the evidence is against the Veteran's claim of service connection for cervical spine degenerative arthritis and degenerative disc disease. As such, this claim must be denied. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). III. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A pre-rating August 2009 letter notified the Veteran of the information and evidence needed to substantiate his claim for service connection for a neck disorder. Consistent with Dingess, the letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected. After affording the Veteran reasonable opportunity to respond, his claim was adjudicated in the RO's November 2009 rating decision. Thus, VA's duty to notify has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service treatment records, service personnel records, claims submissions, hearing transcript, identified and relevant private treatment records, and VA treatment records have been associated with the record. The Veteran was also afforded a VA examination of his cervical spine in November 2012. This examination, along with the other evidence of record, is fully adequate for the purpose of determining the nature and etiology of the Veteran's cervical spine disorder. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. ORDER Service connection for cervical spine degenerative arthritis and degenerative disc disease is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs