Citation Nr: 1311442 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 07-01 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a neck disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from June 1960 to February 1972. His awards and decorations include a Purple Heart. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In March 2007, the Veteran testified during a personal hearing at the RO and, in April 2008, he testified during a hearing conducted via video conference with the undersigned Veterans Law Judge. Transcripts of the hearings are of record. In an October 2008 decision, the Board denied service connection for a neck disorder and a compensable rating for a left ankle scar. At that time, the Board remanded the Veteran's claim for service connection for hepatitis B to the RO for further development. In a December 2008 rating decision, the RO granted service connection for hepatitis B. The RO's action represents a full grant of the benefits sought as to that matter. The Veteran appealed that portion of the Board's October 2008 decision that denied service connection for a neck disorder to the United States Court of Appeals for Veterans Claims (Court). In a March 2011 Memorandum Decision, the Court vacated that part of the Board's October 2008 decision that denied service connection for a neck disorder, and remanded the matter to the Board. In October 2011 and November 2012, the Board remanded the Veteran's claim for service connection for a neck disorder to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development The Board notes that the Veteran's Virtual VA electronic file includes VA treatment records dated from April 2003 to February 2013. The records dated from February 2007 to February 2013 were not considered by the RO in its February 2013 supplemental statement of the case. The records describe the Veteran's current treatment for various ailments, including degenerative disc disease of the lumbar spine and prostate cancer, but do not address the onset of his claimed neck disorder. Thus, the new evidence is not relevant to the issue on appeal. 38 C.F.R. § 19.37(a) (2012). A waiver of initial RO consideration of these records is not warranted and the Board may proceed to adjudicate the Veteran's claim without prejudice to him. See 38 C.F.R. § 20.1304 (2012). FINDING OF FACT The evidence of record preponderates against a finding that a chronic neck disorder, currently diagnosed as degenerative disc disease of the cervical spine, had its onset or is otherwise related to his military service nor was arthritis manifest to a compensable degree within one year of the Veteran's discharge from active service. CONCLUSION OF LAW The criteria for service connection for a neck disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1110, 1113, 1131, 1137, 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 I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act (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). In Bryant v. Shinseki, 23 Vet App 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, this Veterans Law Judge outlined the issue on appeal and elicited testimony designed to help substantiate the claim on appeal. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing. 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 the degree of disability and the 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). Here, the Veteran was sent letters in July and September 2005 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. A May 2008 letter provided notice as to how VA assigns an appropriate disability rating or effective date, curing any timing defect. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of his 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. All reasonably identified and available VA and non-VA medical records were obtained. In October 2011, the Board remanded the Veteran's claim for further development that included scheduling him for a VA examination. He was afforded a VA examination in November 2011 in conjunction with his claim and the examination report is of record. As noted above, in November 2012, the Board remanded the Veteran's case to the RO for further development, that included returning the claims file to the November 2011 VA examiner, or another adequately qualified medical provider, for clarification and a rationale of the examination opinion. There has been substantial compliance with the Board's 2012 remand as the additional opinion, rendered by a VA physician, was received in December 2012. The Board notes that, in a March 2013 written statement, the Veteran's service representative argued that the 2011 VA examination and 2012 opinion were "wholly inadequate" as the examiner "failed to...rely upon his own expert knowledge". See March 4, 2013 Written Presentation at page 1. However, the Board finds that the November 2011 examination report, with the December 2012 medical opinion, is adequate for rating purposes as the claims file was reviewed, the examiners reviewed the pertinent history, examined the Veteran, provided clinical findings and diagnoses, and offered an etiological opinion with rationale from which the Board can reach a fair determination. The records satisfy 38 C.F.R. § 3.326 (2012). The December 2012 VA medical report makes up for the deficiencies in the November 2011 VA examination report. 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). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment and examination. The Board has carefully reviewed such statements and concludes that no available 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). II. Factual Background and Legal Analysis The Board notes that it has thoroughly reviewed the record in conjunction with this case that includes the Veteran's service treatment records, VA medical records and examination reports, and the Veteran's written statements and oral testimony in support of his claim. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Under 38 U.S.C.A. §§ 1110 and 1131 and 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). But see Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Nevertheless, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, case law has established that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). To establish a right to compensation for a present disability, a veteran must show: "(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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). This is a direct service connection theory of entitlement. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of spine pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In written statements and oral testimony in support of his claim, the Veteran asserts that he has a neck disorder that began in service after a 1970 injury while he was in Vietnam. See Board hearing transcript at page 6. As a helicopter crew chief, the Veteran was tasked with salvaging down helicopters. During the recovery of a damaged helicopter, he was hit on the head by a salvaged aircraft window that apparently was picked up and thrown about by the lifting helicopter's rotor wash. He recalled being knocked out and later being unsteady on his feet. He did not seek medical care upon returning to the base, applied a bandage, and then returned to his duties. The Veteran did not seek medical care for this incident during the remainder of his time in service, or upon discharge. The Veteran further testified that a couple of years after his discharge from service, his neck caused discomfort during long drives and continued to be painful. Id. at 7. He indicated that "[p]robably three years" after discharge he started to feel neck pain that worsened. Id. at 13. He apparently did not seek any private care. Upon review of the evidence of record, and after considering the laws and regulations applicable to the Veteran's claim, the Board is of the opinion that service connection is not warranted. Service treatment records show that, in November 1970, the Veteran was treated for a laceration to his forehead that was cleaned and dressed. He was advised to return for follow up in three days. The record does not discuss how he sustained the laceration. An April 1971 annual service examination report shows a normal spine. When examined for discharge in February 1972, the Veteran's spine was again normal. Despite the negative findings, the record establishes that an in-service incident occurred. Given the Veteran's status as a combat veteran, as indicated by his receipt of the Purple Heart, his statements as to the in-service injury are sufficent to establish that such occurred. 38 C.F.R. § 1154(b) (2012). Moreover, the claims file lacks clear and convincing evidence to rebut that the in-service injury occurred as described by the Veteran. Post service, the first record of treatment for the Veteran's neck was in September 2003. A September 2003 x-ray of his cervical spine, performed by VA, found good alignment with well maintained vertebral heights. There was no evidence of a fracture of dislocation. The impression was of a negative cervical spine. In October 2004, the Veteran complained of neck pain upon waking in the morning. An October 2004 VA x-ray also performed by VA again found no fracture or dislocation but revealed moderate to marked degenerative disc disease of the C5-C6. A December 2004 VA physical therapy record shows that the Veteran described onset of his neck pain 25 years earlier with worsening over the last 3 to 4 years. Results of a magnetic resonance image (MRI) of the Veteran's cervical spine performed in February 2009 yielded findings of multilevel degenerative disc disease with bilateral neural foraminal narrowing at C5-C6, according to the November 2011 VA examination report, discussed infra.. In November 2011, the Veteran underwent VA examination performed by nurse practitioner. The examiner reviewed the Veteran's medical records and performed a clinical evaluation. The Veteran gave a history of being in Vietnam in 1970 and recovering a damaged helicopter when helicopter wind forced the door open. The Veteran was hit in the head and rendered temporarily unconscious. He was wearing a helmet at the time. The Veteran said he recovered and continued to do his job. He reported that, in 1972 when he drove to his civilian job, he had neck problems and his neck pain progressively worsened. The diagnosis was degenerative disc disease of the cervical spine that was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. The examiner referenced a study in the The AMA Guides Newsletter July/August 2009 to the effect that degenerative disc disease as a result of work-related "cumulative trauma" was a myth with this accounting for 3 percent or less of conditions. The study's results showed that age, familial aggregation (genetics), and intrinsic disc loading (body weight compared with size of the disc) were the predominant predictors of degenerative disc disease. The examiner opined that the Veteran's degenerative disc disease of the cervical spine was less likely as not related to or a result of his military service. In the December 2012 medical opinion, a VA physician-examiner noted his review of the claims file "thoroughly in its entirety," along with the Veteran's oral and written statements, and the medical records and reports in the file. The physician observed that degenerative disc disease of the cervical spine was initially noted on cervical spine x-ray in October 2004. The VA doctor opined that the Veteran's degenerative disease of the cervical spine was less likely as not related to or began during the appellant's military service and was less likely as not related to or aggravated by the 1970 injury. This physician further opined that the degenerative disease of the cervical spine was less likely than not related to the head injury causing cervical strain. The VA examiner explained that the Veteran was seen on November 23, 1970, for a forehead laceration that was cleaned, with instruction to follow-up in three days but without any mention of how the Veteran sustained the laceration. The Veteran had testified to incurring a laceration after being struck by flying debris while trying to recover a downed helicopter. The Veteran claimed intermittent pain since the injury until 2004 when he claimed chronic neck pain. According to the VA physician-examiner, everyone with chronic or recurrent neck pain had a first episode of such pain-it does not necessarily make the initial episode(s) related to the later chronic condition. The reason is that while neck sprain or strain involves the muscles and ligaments (soft tissues) of the spinal region, degenerative disc disease is a degenerative process involving the discs and vertebral bodies. The one is not the cause of, or related to, the other. However, individuals often remember an episode where it all began, despite the lack of a medical nexus. The VA doctor stated that "[s]ome individuals complain of neck pain with most strenuous activity from a young age, but that does not mean it is the cause of the multilevel (diffuse) degenerative changes that occur between the age of 40 and 60 years. These changes are due to the following: The AMA Guides Newsletter Jul/August 2009 shows that age, familial aggregation (genetics), and intrinsic disc loading (body weight compared with size of the disc) were the predominant predictors of degenerative disc disease." The VA physician noted that the rationale for his opinions was based on a review of the claims file in its entirety, acknowledging the Veteran's statements, as well as the doctor's training and 34 years of experience as a clinician. Here, the service treatment records do not provide evidence of a chronic neck disorder in service. The Veteran had no treatment for complaints of pain. When he was evaluated for discharge in February 1972, no problems with the spine were identified. The record unequivocally fails to show any medical evidence of arthritis, or any other diagnosed disability, of the spine, within one year after service. The first documented evidence of any type of neck problem after service is from the non-VA records dated in 2003, over 30 years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (to the effect that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). In short, no medical opinion or other medical evidence relating the Veteran's back disorder to service or any incident of service has been presented. The only probative opinion of record is that of the November 2011 VA examiner, with the December 2012 opinion from the VA physician, who concluded that the Veteran's degenerative disc disease of the cervical spine was less likely than not related to his military service. According to the VA physician-examiner, in his December 2012 medical opinion, age, familial aggregation (genetics), and intrinsic disc loading (body weight compared with size of the disc) were the predominant predictors of degenerative disc disease, rather than trauma. The VA physician provided a clear rationale to support that opinion. There is no competent evidence to contradict this opinion. In so finding, the Board has considered the Veteran's contention that a relationship exists between his current degenerative disc disease of the cervical spine and military service. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court, emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (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). The Veteran is competent to describe his observable symptoms, such as neck pain. However, he is not competent to make a statement of causation that is a medical determination. Barr v. Nicholson, 21 Vet. App. at 303; Buchanan v. Nicholson, 451 F.3d at 1331. To the extent he is claiming that neck problems have persisted since service, this is inconsistent with the overall record which reflects neck symptomatology surfaced after service. The Board has considered the Veteran's statements as to his incurrence during service, in light of his service treatment records, post-service medical evidence, and the November 2011 and December 2012 VA medical opinions. The Board finds that the objective medical evidence of record is most persuasive and of more probative value than the appellant's assertions. The record fails to reflect that the Veteran was treated on even one occasion for neck pain during military service. The post service records show that degenerative disc disease of the cervical spine was diagnosed in 2004, more than 30 years after his discharge from service. The gap of time between military service and the first post-service medical evidence of neck pain is, in itself, significant, and weighs against the appellant's claim. See Maxson v. Gober, 230 F.3d at 1333; see also Mense v. Derwinski, 1 Vet. App. at 356. The Board recognizes that the absence of documented post-service treatment cannot, by itself, invalidate the Veteran's claims of continuous symptomatology. However, to the extent that the Veteran is claiming continuity of neck symptoms since service, he is not a reliable historian. He made no mention of spine problems during his April 1971 annual service examination and, in February 1972, there was no mention of spine difficulties at service discharge and examination of his spine at that time was normal. He has not explained why he failed to mention pertinent difficulty when examined pursuant to service discharge, when he was leaving service anyway. When evaluated by VA in the physical therapy clinic for neck pain in December 2004, he gave a history of chronic neck pain for 25 years with worsening over the last 3 to 4 years, not since service discharge. The Veteran testified in 2012 that he did not have neck problems at discharge and had neck problems approximately three years after discharge, although the November 2011 VA examiner reported that he had neck problems while driving to his civilian job in 1972. The Board does not find that there is credible evidence of continuity of symptomatology present in this case. Moreover, while the Veteran is competent to state that he experienced neck problems in service, he is not competent to state that he has degenerative disc disease of the cervical spine or another spinal disease. The internal pathology of degenerative disc disease of the cervical spine is not readily recognizable by a layman, such as varicose veins or acne. See Jandreau v. Nicholson. Even medical professionals rely on x-rays and other diagnostic tools to diagnose degenerative disc disease of the cervical spine. Further, the December 2012 VA physician-examiner, who reviewed the Veteran's in-service treatment records and reviewed his post service medical records, concluded that he did not have a diagnosed cervical spine disorder (degenerative disc disease) due to military service. The examiner's opinion is entirely consistent with that of the November 2011 VA examiner who also found that the Veteran did not have degenerative disc disease of the cervical spine due to military service. The Veteran's contentions are outweighed by the medical evidence and opinion of the December 2012 VA examiner that reflects that his degenerative disc disease of the cervical spine was less likely as not related to military service including the 1970 injury. In sum, the Board is left with no documented complaints of neck pain in service, no documented complaints or findings of a diagnosed neck disorder after service until 2004, and two VA medical opinions to the effect that the Veteran does not currently have a diagnosed cervical spine disorder (degenerative disc disease) due to military service. The questions involved regarding causation are medical in nature. As discussed above, the medical opinion of the VA physician-examiner (based on a review of the claims file and with knowledge of the Veteran's in-service duties and in-service complaints) was negative. The Board has considered the Veteran's contention that his degenerative disc disease of the cervical spine began during or as a result of his military service, but there is nothing in the record to show that he possesses the requisite medical training or credentials needed to render a competent opinion and it is not contended otherwise. Again, as detailed, the Board finds the VA opinion to be of more probative value than the Veteran's contentions. See e.g., King. v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012) (to the effect that the Board need not accept lay statements as determinative and can find medical evidence more probative). Under these circumstances, the Board is unable to find that there is a state of equipoise of the positive evidence and negative evidence. In sum, a clear preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for a neck disorder, and his claim must be denied. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for a neck disorder is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs