Citation Nr: 1310196 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 09-39 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a disability of the cervical spine with headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1968 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in May 2008 by the Department of Veterans Appeals (VA) Regional Office (RO) in Boise, Idaho. In November 2011 the Board remanded the case for further development, which has been accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran did not have arthritis of cervical spine during service or to a compensable degree within the first year after discharge from service 2. The cervical spine disability, degenerative disc disease and degenerative joint disease, with headaches is not affirmatively shown to have been present in service, and the most probative medical opinion of record shows that the current disability of the cervical spine with headaches is unrelated to an injury in service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability, degenerative disc disease and degenerative joint disease, with headaches are not met, and service connection for arthritis or degenerative joint disease of the cervical spine may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). The Veterans Claims Assistance Act The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO sent the Veteran letters in November and December 2007 advising him of the evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. Additionally, the Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for the content and the timing of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent there was pre-adjudication notice); and, of Dingess, 19 Vet. App. 473 (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service treatment records, as well as VA and private medical records. The Veteran has not identified any additional pertinent records for the RO to obtain on his behalf. The Board previously remanded the case for the purpose of affording the Veteran an additional VA examination, which was conducted in December 2011. The Board has reviewed the examination report and finds the RO substantially complied with the requirements of the Board's remand. D'Aries v. Peake, 22 Vet. App. 97 (2008), citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). The showing of a chronic disease in service requires 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Where a veteran served for at least 90 days during a period of war or after January 1, 1947, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted 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). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible 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(b). Facts The service treatment records show that in November 1968 the Veteran was seen at the dispensary after having been hit by a mirror on the side of passing truck. The impact knocked him about four feet and he landed on his back. The mirror made contact with the upper portion of back, very near his spinal column and he complained of back and hip pain. The pertinent finding was examination within normal limits (WNL) except for an abrasion to the left elbow In September 1971 the Veteran was seen for low back pain, citing the prior injury after being struck by the truck and noting that the pain had recently flared up in the low back; the assessment was acute back sprain in the lumbar spine, with no indication of any current complaints relating to the cervical spine. Subsequently the Veteran complained of back and chest pain associated with deep breathing, which was diagnosed as either a muscle strain or pleurisy (again, there was no indication of complaints relating to the cervical spine). The Veteran had a separation physical examination in October 1971 in which the spine was noted as "normal" on examination. The Veteran was subsequently discharged from service in November 1971. After service, records of the Pocatello Regional Medical Center in June 1983 show that the Veteran was treated for pneumonia. History included headaches. In April 1988 the Veteran was seen for respiratory problems. There was full range of motion of neck. In June 1990, the Veteran was seen for chest pain radiating into the back. On physical examination, the neck was supple and non-tender. In June 1995, the Veteran was seen for left ankle injury. He denied neck pain. In June 1999, the Veteran was seen for hypertension and he complained of right-side headaches. In July 1999, the Veteran complained of continued headaches. Examination of the neck was grossly normal. In November 1999, the Veteran indicated by checkmark that he did not have headaches. In January 2001, the Veteran complained of headaches for which he was referred to a neurology clinic. In May 2002, a private physician saw the Veteran for complaints of neck pain and right hip pain after a recent workplace accident in which a chair had slipped out from under him and the chair hit him in the back of the head. Examination of the neck was essentially normal. The impression was simple neck strain. In May 2003, the Veteran continued to have hip, resulting in a hip replacement, but the record is silent for any neck complaint. VA records show that in June 2004 the Veteran stated that he fallen 2 to 3 years previously and he had struck the back of his neck. He complained of periodic burning sensation down both arms and anterior headaches. Clinical examination was grossly normal. The clinical impression was osteoarthritis. X-rays were ordered. In July 2007 the Veteran complained of the acute onset of headache. A CT scan was read as within normal limits." In August 2007, the Veteran complained of neck pain with occipital headaches. The Veteran stated that the symptoms had been ongoing since an injury in service in the 1970s. X-rays of the cervical spine showed mild degenerative changes. The impression was degenerative spondylosis and probable associated stenosis. A CT scan of the cervical spine showed spondylitic changes and spinal stenosis. In a statement in August 2007 the Veteran gave a history of the injury in service when he was hit by a passing truck. He stated that he was sore for a while across his neck, shoulders, and upper to middle back and that he had headaches that took some time to subside. After awhile he began having headaches again, which started out as a stiff neck and going around the left side of the head to the front. VA records show that in October 2007 the Veteran complained of increased neck pain. The clinical examination of the neck was grossly normal, and the clinical impression was osteoarthritis. In a statement in November 2007 the Veteran's spouse stated she remembered receiving letters from the Veteran during his time in Vietnam recounting the incident of being hit by the truck and subsequent neck, shoulder, back pain, followed by headaches and stiffness. Thereafter the Veteran complained to her of headaches and a stiff back and the headaches progressed in severity over time. In a letter in December 2007, the Veteran's father stated that the Veteran informed him that he would get headaches, neck and back pain from being in an accident in service. The file also contains a December 2007 from the Veteran's co-worker Mr. RL, stating from personal observation that the Veteran started having headaches in the late 1970s, which became progressively worse over time. On VA examination in January 2008, the Veteran stated he was hit by a truck during service. The VA examiner noted the entry in the service treatment records. The Veteran complained of constant headache since service and constant neck pain. The diagnosed was cervical spine strain with degenerative disc disease. The VA examiner stated there was very little medical record to support spondylosis with stenosis as being secondary to the single event in service, as the Veteran finished three more years in service without any complaint regarding the cervical spine and there were few post-service records prior to 2007. The VA examiner stated on the basis of the medical evidence, including the injury in service, it is not likely the cervical spine condition was caused by the incident in service. The VA examiner explained that the medical account in service did not give a picture of severity in line with the Veteran's history and that the current complaints were age-related and accelerated by body habitus and job duties with the railroad and unrelated to the incident in service with no documented residuals at the time of his discharge. In February 2009 a private physician expressed opinion that the Veteran's neck pain and headaches were more likely than not due to the injury in service on the basis of the Veteran's history and a review of service treatment records and private medical records. The physician stated that the accident in service began a cascade of degenerative changes in the cervical spine, resulting in the current symptomatology. On VA psychiatric examination in April 2009 the Veteran reported neck pain due to bone spurs with headaches. In his substantive appeal in September 2009, the Veteran repeated his statements regarding the accident in service. The Veteran reported that the incident in which his chair had slipped at work was insignificant, and that a private physician had said that disease process was an old injury that had happened years before and that the only traumatic injury he ever had was the injury in service. The Veteran also asserted his headaches were caused by his neck condition. On VA examination in December 2011, the VA examiner noted the Veteran's account of an injury in service in which he was hit by a truck, but observed that service treatment records were silent as to neck pain in service, including on separation examination. The VA examiner also noted that after service the record was essentially silent about cervical complaints from 1971 to 2007. The VA examiner noted degenerative joint disease by X-ray. The VA examiner expressed the opinion that the claimed cervical spine disability was not likely incurred in or caused by the in-service injury, event, or illness. The VA examiner stated the opinion was not based on the Veteran's credibility, since he considered the Veteran to be credible. Th VA examiner stated causation is based on medical principles, and subjective history provides a framework, but cannot itself be used in the absence of supporting objective medical data in determining causation. The VA examiner stated that the Veteran did not have a diagnosed of cervical spine condition in service and no documentation of a cervical spine condition before 2007. The VA examiner stated that the findings of spondylitic changes at C5-6 with spurring and stenosis were age-related and therefore not likely caused or related to the event in service in 1968 in which the Veteran was struck in the back by a truck. Analysis 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). The Veteran is shown to have diagnosed cervical degenerative joint disease and degenerative disc disease; also, the in-service accident he cites as being the cause of his current disability is documented in service treatment records. Accordingly, the first two elements of service connection as articulated in Davidson are met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). This is the essence of the third part of the Davidson analysis. On the basis of the service treatment records alone, a cervical spine disability was not affirmatively shown to have been present in service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not established. The service treatment records show that the Veteran was hit by a side mirror on a truck, but there were no pertinent findings as to the cervical spine with or without headaches. Although the Veteran described the impact as being in the upper portion of his back near his spinal column, the contemporaneous physical examination was normal. The Veteran is shown to have been diagnosed after service with arthritis. The Board must accordingly consider whether service connection is warranted on a presumptive basis under 38 C.F.R. § 3.309(a). However, the Veteran's separation physical showing the spine to be "normal," and there was no indication of arthritis to any degree until 2007, 36 years after discharge from service. The Board accordingly finds the record does not show arthritis present to a compensable degree within the first year after discharge from service, and that presumptive service connection for arthritis as a chronic disease is not warranted. Also as to any current disability of the cervical spine with headaches, first diagnosed after service, 38 C.F.R. § 3.303(d) applies. After service, chronic symptoms of the cervical spine were first documented in 2007 and records prior to 2007 show only intermittent complaints of neck pain, attributed to workplace injury, and intermittent complaints of headaches. The Veteran has stated that he has had neck pain and headaches since service, but it does not necessarily follow that there is a relationship between the current disability of the cervical spine and the symptomatology that the Veteran avers. Medical evidence is required to support the claim, unless such a relationship is one which a lay person's observation is competent under case law or the condition is a simple medical condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a lay person is competent to identify a simple medical condition). Although the Veteran is competent to describe pain, a disability of the cervical spine other than pain is not a condition under case law that has been found to be capable of lay observation, and the determination as to the presence or diagnosis of the condition is therefore medical in nature. Where an opinion is used to link the current disability to a cause during service, a competent opinion of a medical professional is required. Caluza v. Brown, 7 Vet. App. 498 (1995). The medical opinions in this case are conflicting. A private physician stated the cervical spine disability was relate to service, but VA examiners in January 2008 and December 2012 expressed the opinion that the cervical spine disability was not likely related to service. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. 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. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The opinion of the private physician does not satisfy the criteria of Nieves-Rodriguez. First, the opinion provides no rationale whatsoever and the opinion is a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998). Further, the private physician did not address the post-service evidence of treatment for the disability until 2007, some 36 years after discharge. Review of the claims file, in and of itself, does not make a medical opinion more or less probative. Rather, it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the file was reviewed that contributes probative value to a medical opinion. Nieves-Rodriguez. The mere fact that the VA examiners had access to the Veteran's file, while the private physician did not, does not make the opinions of the VA examiners more probative than that of the private physician. Nevertheless, the VA examiners had access to the file, enabling them to put the Veteran's history in the context of post-service treatment record, which the private physician could not. The VA examiners had the advantage of having a complete record, which was cited in articulating a reasoned opinion. The Board accordingly finds the opinions articulated by the VA examiners are more probative than the opinion of the private physician. VA must consider all favorable lay evidence. 38 USCA § 1154(a). Accordingly, in addition to the medical evidence the Board has considered the lay evidence offered by the Veteran in the form of correspondence to VA by the Veteran and his family members and the Veteran's statements. The Veteran is competent to describe symptoms of cervical pain in service and since service. 38 C.F.R. § 3.159 (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 facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A disability of the cervical spine, degenerative disc disease or degenerative joint disease, is not a condition under case law that has been found to be capable of lay observation. And the disability is not a simple medical condition, because the disability cannot be identified or diagnosed by the Veteran as a lay person based on mere personal observation, that is, the disability cannot be perceived through the senses, for example, by visual observation, and therefore such a disability is not a simple medical condition. Where, as here, there is a question of the presence or a diagnosis of a disability, which is not capable of lay observation by case law, and the disability is not a simple medication condition under Jandreau for the reason expressed, to the extent the Veteran's lay statements are offered as proof of the presence of the current disability in service and since service, the Veteran's lay statements are not competent evidence, and the statements are not admissible as evidence, that is, the Veteran's lay statements are not to be considered as competent evidence favorable to the claim. While the Veteran's family members are competent to describe their personal observations to the extent the lay statements are offered as evidence of degenerative disc disease or joint disease since service, the lay statements are not competent lay evidence as current disability of the cervical spine is not capable of lay observation by case law and the disability is not a simple medication condition under Jandreau. And no factual foundation has been established to show that the Veteran or the lay witnesses are otherwise qualified through specialized education, training, or experience to identify the presence or diagnosis of the current disability of the cervical spine. Since the lay statements are not competent evidence, the statements are not admissible as evidence, that is, the lay statements are not to be considered as competent evidence favorable to the claim. To the extent the Veteran's lay statements and the lay statements of the witnesses are offered as evidence of a causal relationship between the Veteran's current disability and the injury in service, the statements are inferences based on facts and are opinions rather than statements of fact. And the Veteran and witnesses lay persons are competent to offer an opinion on a simple medical condition. Davidson at 1316. As previously explained the Veteran and witnesses as lay persons are not competent to diagnosis the current disability of the cervical spine based on personal observation, either by case law or as a simple medical condition under Jandreau, therefore any inference based on what is not personally observable cannot be competent lay evidence. And it is not argued or shown that the Veteran or lay witnesses are otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between the current degenerative disc disease of the lumbar spine and the low back sprains in service. For this reason, the lay opinions are not competent evidence. Since the lay opinions are not competent evidence, the opinions are excluded, that is, not admissible as evidence and cannot be considered as competent evidence favorable to claim. As the lay evidence is not competent evidence on the questions of the presence or diagnosis of the disability or of a nexus to service, the Board need not address credibility. In sum, the preponderance of the evidence is against the claim of service connection for a disability of the cervical spine with headaches and there is no doubt to be resolved. Service connection for the claimed disability is not warranted. (The Order follows on the next page.). ORDER Service connection for a disability of the cervical spine, degenerative disc disease and degenerative joint disease, with headaches is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs