Citation Nr: 1308520 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 07-17 036A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a cervical spine disorder with degenerative changes. REPRESENTATION Veteran represented by: Lisa A. Lee, Attorney at Law ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from May 1992 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was remanded for issuance of a statement of the case in September 2005, and for further development in February 2010 and May 2011. The issue of entitlement to service connection for chronic anemia with thalassemia and chronic leukopenia was also previously before the Board in May 2011 and remanded. However, subsequently, in a February 2012 rating decision, the RO granted service connection for such disability. As this was a full grant of the benefit sought on appeal, this issue is no longer in appellate status. A review of the Virtual VA claims processing system shows that additional VA treatment records dated from January 2012 were associated with the Veteran's record and has not been considered by the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.1304(c) (2012). Nevertheless, waiver of these records is not necessary as they are either duplicative of records already associated with the claims file that had been reviewed by the AOJ or they pertain to other unrelated disorders and do not address the cervical spine disability on appeal. Id. FINDING OF FACT Cervical spine disorder with degenerative changes is not shown to be causally or etiologically related to any disease, injury, or incident in service, and arthritis or an organic disease of the nervous system did not manifest within one year of the Veteran's discharge from service. CONCLUSION OF LAW The criteria for service connection for cervical spine disorder with degenerative changes have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran was sent notices in April 2003, May 2003, and March 2007 that fully addressed all notice elements. The letters advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Moreover, the March 2007 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. The April and May 2003 notices were provided prior to the initial RO adjudication in August 2003. However, the Board recognizes that the March 2007 VCAA notice, which address the Dingess elements, was provided after the initial decision. However, the deficiency in the timing of this notice was remedied by readjudication of the issue on appeal in a June 2007 the statement of the case and subsequent supplemental statements of the case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this regard, the claims file contains the Veteran's service treatment records, post-service reports of private and VA treatment, Social Security Administration (SSA) records, and VA examinations reports as well as a VA opinion. As indicated previously, VA treatment records dated from January 2012 are contained in Virtual VA; however, such are not relevant to the Veteran's claim and have not been considered herein. Furthermore, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available additional outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Finally, the Board finds that there was substantial compliance with the February 2010 and May 2011 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, with respect to the current issue on appeal, the Board in February 2010 directed the AOJ to schedule the Veteran for a VA examination. The Veteran was afforded a VA examination in July 2010. However, in the May 2011 remand, the Board determined that this opinion was inadequate and remanded the case to be returned to the same examiner for an addendum, which was done in October 2011. However, after reviewing this opinion with addendum, the Board found that a medical expert opinion was necessary in accordance with VHA Directive 2010-044. A medical opinion was done in November 2012. As the opinion was prepared by a competent clinician who considered the Veteran's claims file and medical history in the report and provided an etiological opinion, complete with rationale, the Board finds that the opinion is adequate to adjudicate the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran and her representative were sent a copy of this opinion in July 2012 to which they were given 60 days to review the opinion and respond. To date, there has been no response. Accordingly, the Board finds that there has been substantial compliance with the February 2010 and May 2011 Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis and organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). 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 claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking service connection for a cervical spine disorder with degenerative changes. She specifically asserts that she injured her cervical spine while digging a foxhole during basic training. Turning to the Veteran's service treatment records, there were no complaints, treatment, or diagnosis of any chronic neck disorder. During her separation examination, conducted in April 1993, her neck was noted to be normal upon clinical evaluation and no cervical spine deficits were reported or documented. The Veteran filed a claim for compensation benefits in June 1993 for unrelated disorders, including back pain, but was silent with respect to any neck problems. A July 1993 VA examination was also silent with respect to any neck complaints. Nevertheless, post-service, and within one year of her June 1993 service separation, private treatment reports indicate that the Veteran complained of neck pain beginning in October 1993. At that time, she reported neck and upper thoracic pain. On examination, there was bilateral contracture of the cervical spine musculature. There were some minimal shotty nodes on the anterior cervical chain on the left. Range of motion was intact. She was diagnosed with cervical myositis. An x-ray report from November 1993 was negative for any abnormality, as there was no fracture or dislocation, with no abnormality in the soft tissues and no spurring. She reported neck pain again in December 1993. During an August 1994 hearing at her VA Regional Office (RO), which addressed other issues that are not currently on appeal, she testified that in June 1992, she was forced to dig a fox hole by herself. She noted the onset of back strain within two hours. Thereafter, she noted a progressive worsening of low back pain, which eventually radiated to her neck. See RO Transcript, p. 2. On February 3, 1996, private treatment reports indicate that the Veteran was involved in a motor vehicle accident (MVA), at which time she complained of neck pain. X-rays demonstrated that cervical vertebral bodies and disc spaces were normal in height and alignment. There was no paravertebral soft tissue swelling, no fractures, and no dislocations. Ultimately, there were no significant findings on the cervical spine study. She was diagnosed with a closed head injury and low back muscle strain. On February 9, 1996, the Veteran reported shooting pain in her neck, which was constant, as well as moderate stiffness. Ten days later, a private medical report noted a loss of rotary motion and lateral flexion. A July 1996 MRI of the cervical spine showed reversal of cervical lordosis, C3-4-5; otherwise normal MRI. Complaints concerning her neck continued through July 1998 and an impression of cervical sprain, post MVA was given. SSA records also showed that she filed a claim for disability benefits for cervical/lumbar strain status post MVA in 1996. March 1998 and June 1998 letters from her private provider indicated that she had been treated for post traumatic headaches, cervical strain and lumbar strain. In September 1998, correspondence from her provider indicated that the MVA resulted in cervical strain and permanent soft tissue injury in the cervical area. A VA outpatient report from February 2003 included a diagnosis of cervical strain. In conjunction with her claim for service connection, the Veteran was first afforded a VA compensation and pension examination in July 2003. She reported that she strained her neck during active duty in 1992, and she was diagnosed with very mild cervical spine degenerative disease. However, an etiological opinion was not provided. Follow up VA treatment records continued to show a diagnosis of cervical strain. Following a February 2010 Board remand, another VA examination was provided in July 2010. The Veteran continued to complain of intermittent neck pain. The examiner noted that it did not appear that she had a chronic neck condition while in the military, and opined that it was less likely than not that her cervical spine degenerative joint disease was related to her military service. It was noted that she was diagnosed with cervical myositis while in the military, however, chronic cervical spine problems did not begin until after the 1996 MVA. In this regard, it appears that the examiner mistakenly believed that the Veteran was in service at the time of the October 1993 diagnosis of cervical myositis when she had, in fact, been discharged in June 1993. Finding that the July 2010 VA medical opinion was inadequate due to the examiner's failure to address the Veteran's assertions that her neck disorders were related to a specific in-service injury in June 1992, the Veteran's claim was remanded again by the Board in May 2011 for an addendum opinion. In October 2011, the same VA examiner opined that the Veteran's current neck disability was not as likely as not related to the fox hole incident, as she did not indicate a chronic neck condition until 1996, following the MVA. Further, the Veteran's current diagnosis of degenerative joint disease of the cervical spine was at least as likely attributed to her age. However, the examiner again failed to discuss all pertinent evidence of record, to specifically include the Veteran's report of neck pain on numerous occasions between October 1993 and December 1993, in addition to her August 1994 testimony that she had neck pain following the in-service incident with continued complaints of neck pain that were progressively worsening. Thus, the Board referred the case for another VA medical opinion, which was accomplished in November 2012. After reviewing the claims file, the VA medical doctor determined that it was not at least as likely as not that the Veteran's current neck symptoms were related to her active service duty and it was less likely than not that any arthritis or organic disease of the nervous system manifested within one year of the Veteran's separation from service. The examiner indicated that, in reviewing the Veteran's records, it was evident that neck pain was a minor complaint during active duty and the 12 months following her discharge. Her major complaints were headaches, "black outs" and back pain. Frequently, she did not even mention neck pain, as the examiner observed in numerous 1994 and 1997 statements. Moreover, the examiner observed and cited examples that the Veteran was examined by innumerable health care providers as well as underwent a number of radiographic studies that did not find a significant abnormality when examining the neck. The examiner specifically observed the July 2003 x-ray that showed very mild degenerative changes and determined that these mild degenerative changes as well as the reversal of cervical lordosis were commensurate with the Veteran's age, and in no way should be interpreted as demonstrating significant abnormalities. The examiner also summarized the medical evidence concerning the MVA that the Veteran was involved in February 1996. The examiner observed that numerous statements made no mention of any pre-existing disease of the cervical spine at the time of the MVA. The MVA is described as the sole cause of her disability. There is absolutely no mention of the MVA of February 1996 aggravating a pre-existing injury to the cervical spine. The examiner concluded that neck pain semed to be a minor complaint following the Veteran's digging a fox hole in 1992. She had innumerable examinations of the cervical spine that failed to demonstrate any significant abnormality over the next 12 years. She had both plain films and a MRI scan of the cervical spine, which also failed to demonstrate any significant abnormality. Finally, after her MVA in February 1996, the Veteran repeatedly denied any history of a prior injury to her cervical spine or any history of neck pain. Again, the VA examiner considered the Veteran's claims file and medical history in the report. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Additionally, the VA examiner provided an etiological opinion, complete with the rationale described above. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, the Board assigns great probative value to the VA examiner's opinion. After considering the totality of the evidence of record, the Board finds service connection for a cervical spine disorder is not warranted as there is no competent evidence linking any disability to an injury in service, and no evidence of arthritis or an organic disease of the nervous system within one year of service. Indeed, service treatment records are completely silent with respect to any neck injury. Importantly, the Veteran's neck and spine were clinically normal at the time of her discharge examination. Nevertheless, even considering the Veteran's competent statements that she injured her neck while digging a fox hole, there is simply no competent evidence linking any current cervical spine disorder to that injury. Again, after reviewing the claims file, the highly probative November 2012 VA opinion found that the Veteran's current cervical spine disorder was not related to service and there was no evidence of any arthritis or organic disease of the nervous system within one year of service. The examiner provided a detailed rationale for this opinion and there is no competent evidence of record to refute this opinion. The Board observes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the instant case, the Veteran is competent to report an in-service injury, as well as pertinent symptomatology since service. However, she is not competent to directly link any current disability to service as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Davidson, supra; Jandreau, supra; see also 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 a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Moreover, the Board finds the Veteran's current assertions of pertinent symptoms since the injury while digging a fox hole in service to not be credible. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In the instant case, the Board finds that such statements are not credible as they are outweighed by the remainder of the evidence of record and were made under circumstances indicating bias or interest. Importantly, although the Veteran complained of neck pain within one year of discharge, the competent medical evidence, including the November 2012 VA opinion, clearly indicates that this was not demonstrative of a chronic cervical spine disability, to include arthritis or an organic disease of the nervous system. See Walker, supra. Moreover, there were no further complaints for a couple of years until the February 1996 motor vehicle accident. At that time, as pointed out by the November 2012 VA examiner, the Veteran expressly denied any prior neck injury or cervical spine disability. The private treating physicians following the accident all related her cervical spine problems to the MVA. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); See Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Therefore, the Veteran's current statements, made in connection with her pending claim for VA benefits, that she has experienced continuous symptoms since service are inconsistent with the contemporaneous evidence. Accordingly, while her contentions have been carefully considered, neither these contentions nor the clinical record establish a continuity of symptomatology such as to serve as a basis for a grant of service connection. In conclusion, based on the analysis above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for cervical spine disorder with degenerative changes. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for cervical spine disorder with degenerative changes, is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs