Citation Nr: 1308696 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 08-02 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for a cervical spine strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service from May 1996 to February 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran subsequently relocated and jurisdiction of her claim was transferred to the RO in Anchorage, Alaska. That office forwarded her appeal to the Board. In June 2011, the Veteran presented testimony at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. In September 2011, the Board remanded the case for further development. After completion of this development by the RO, the case was returned to the Board for further appellate consideration. In the same September 2011 remand, the Board remanded the Veteran's claim for service connection for a left shoulder disorder. After additional development was completed, the RO granted service connection for left shoulder tendonitis in an August 2012 rating decision. Since the Veteran has not since appealed either the initial rating or effective date assigned for her left shoulder tendonitis, that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the Veteran must separately appeal these downstream issues). Finally, a review of the Virtual VA paperless claims processing system reveals additional, pertinent VA treatment records dated in 2011 and 2012. These records are not present in the claims folder. In any event, in the August 2012 Supplemental Statement of the Case (SSOC), the RO indicated that it had reviewed these records in the Virtual VA system. Thus, there is no prejudice to the Veteran if the Board considers this evidence. See 38 C.F.R. §§ 19.31(b), 19.37(a) (2012); Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). FINDING OF FACT The Veteran has a chronic cervical strain that began during her military service. CONCLUSION OF LAW A cervical strain was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Review of the claims folder shows compliance with the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5100 et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Regardless, with regard to the cervical spine issue being granted, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of the VCAA because, in light of the allowance of the claim, any error is inconsequential and, therefore, at most harmless error. See 38 C.F.R. § 20.1102; Bernard, 4 Vet. App. at 392-94. Governing Laws and Regulations for Service Connection Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A disorder may also be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). For the showing of chronic disease in service, (or within a presumptive period per § 3.307), there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. When the chronic disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Id. Additionally, medical nexus evidence demonstrating an etiological link is not necessary to establish service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, and that he or she still has the same chronic condition. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). See also 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). See also Jandreau, 492 F.3d at 1376-77. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis - Service Connection for a Cervical Spine Disorder The Veteran contends that she has a chronic cervical spine disorder that began during her military service. She states that her heavy lifting duties for her miliary occupational specialty (MOS) as a helicopter mechanic may have impacted her cervical spine. She maintains her neck pain started during service in 1998 and has continued periodically ever since. She adds that her neck pain began around the same time as her already service-connected left shoulder tendonitis. See November 2005 pre-discharge claim; January 2008 Substantive Appeal; June 2011 representative statement; June 2011 Travel Board hearing testimony. Upon review of the evidence of record, the Board grants the appeal for service connection for a cervical strain. As mentioned, the first and most fundamental requirement for any service-connection claim is the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. In this regard, a December 2010 VA examiner confirmed a diagnosis of a cervical sprain. In addition, private chiropractor records (from Advanced Physical Therapy) dated in 2010 and 2011 assessed cervicocranial syndrome. Thus, the Veteran has a current cervical spine disorder. The Board acknowledges that a latter February 2012 VA examiner found no objective evidence of a current cervical spine disorder. Moreover, private magnetic resonance imaging (MRI) reports of the cervical spine dated in June 2007 and August 2008, in addition to VA and post-service military X-ray reports dated in October 2010 and December 2010, are unremarkable for any specific cervical spine disorder. However, the Board emphasizes that the Court of Appeals for Veterans Claims has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Consequently, the determinative issue is whether any of the Veteran's current cervical spine diagnoses are somehow attributable to her military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). Service treatment records (STRs) document that the Veteran was treated for neck spasms in October 1998. A November 1998 STR assessed a cervical strain / sprain on the left side of the neck. At an October 2004 STR examination, the Veteran reported a history of neck pain. Recurrent "upper back" strains were listed as a diagnosis. STR treatment records dated in October 2005 and November 2005 note cervicalgia (neck pain) as a current problem. At the December 2005 pre-discharge examination, the Veteran reported neck pain. Upon examination, range of motion for the neck was limited secondary to stiffness, tenderness was found at C4-C5 and at C7. The assessment was a history of cervicalgia. Moreover, the Board finds that the Veteran's reported in-service symptoms for cervical spine pain are credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Post-service, the Veteran continued to credibly report neck pain. That is, post-service military facility records dated from 2006 to 2012 document cervicalgia (neck pain) as a continuing problem as early as March 2006, only a month after discharge. A June 2007 private treatment record from Dr. J.P.D., MD, describes the Veteran's complaints regarding neck pain. However, in December 2007 Dr. J.P.D. followed up by stating he could find no objective evidence of a neck disorder. Private Advanced Physical Therapy records dated in 2010 and 2011 assessed cervicocranial syndrome with neck pain. Also, November 2010 and December 2010 Advanced Physical Therapy records indicate there was mild pain upon cervical flexion. A history of heavy lifting in the military was considered, with neck pain reported back to 1998. A December 2010 VA examiner described a 10-year history of reported neck pain. Objectively, the December 2010 VA examiner observed cervical spine muscle spasm and tenderness, with painful, decreased range of motion. Although X-rays were normal in December 2010, the VA examiner still diagnosed a cervical strain. Latter Advanced Physical Therapy records mention that the Veteran also sustained a January 2011 motor vehicle accident, which further added to the neck pain complaints. In summary, the Veteran's complaints and treatment in service and immediately post-service reflect more than an "isolated" finding of cervical spine strains, thereby revealing a chronic condition requiring repeated treatment. 38 C.F.R. § 3.303(b). The Veteran is also competent to report symptoms of cervical pain during and after her military service. Layno, 6 Vet. App. at 469. See also 38 C.F.R. § 3.159(a)(2). The Veteran has credibly reported that she has experienced neck pain over the years. Buchanan, 451 F.3d at 1336. It is noteworthy that some chronic conditions are subject to active and inactive stages. See e.g., Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Furthermore, with regard to an alternative means of establishing service connection by way of continuity of symptomatology, the documented post-service treatment for the Veteran's neck pain is sufficiently similar and close in time to her documented in-service symptoms to demonstrate continuity, which is adequate to award service connection for a cervical spine disability. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 494-97. The Veteran's lay assertions, supported by certain medical evidence of record, are credible for purposes of establishing continuity of symptomatology for a cervical spine disorder. Barr, 21 Vet. App. at 310. In making this determination, the Board has also considered the February 2012 VA examination and opinion. The February 2012 VA examiner could not find any objective evidence of a current cervical spine disorder, after a physical examination and testing. The VA examiner also concluded that current left trapezius tenderness is as likely as not due to the Veteran's large breasts and poor posture. The cervical spine studies were normal, and the VA examiner remarked that no current cervical spine disorder was related to the Veteran's active service. Regardless, the February 2012 VA examiner incorrectly stated that the Veteran has never been diagnosed with any cervical spine condition, whereas in contrast, in-service and post-service records clearly document diagnoses of cervical strains. The February 2012 VA examiner failed to discuss this pertinent evidence. Thus, this particular VA examination is entitled to limited probative value. The United States Court of Veterans Appeals (Court) has held that a VA medical examiner's conclusions were of "questionable probative value" when the examiner failed to consider certain relevant information. Mariano v. Principi, 17, Vet. App. 305, 312 (2003). The probative value of a medical professional's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Black v. Brown, 5 Vet. App. 177, 180 (1995). The February 2012 VA examiner failed to discuss certain relevant in-service and post-service evidence of a cervical spine disorder, thereby limiting the probative value of his opinion. In any event, the Board is also mindful that medical nexus evidence is not required to establish service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, and that he or she still has the same chronic condition. Groves, 524 F.3d at 1309-1310. Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for a cervical strain. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a cervical strain is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs