Citation Nr: 1313590 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 07-16 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a cervical spine disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from February 1997 to April 2000. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a December 2009 Travel Board hearing. A transcript of the hearing is of record. In March 2010, August 2011, and October 2012, the Board remanded the claim for additional development. The case has been returned to the Board for further appellate consideration. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The most probative evidence indicates that the Veteran's current cervical spine disability is not related to service, including the upper back complaints noted therein. CONCLUSION OF LAW The criteria for establishing service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a March 2010 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The March 2010 letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The claim was thereafter readjudicated in a February 2013 supplemental statement of the case. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues to the claimant and asked specific questions directed at identifying whether the Veteran met the criteria for service connection. The VLJ held the record open for the submission of additional evidence and invited the Veteran to obtain and submit a nexus opinion from his physician. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that no further action pursuant to Bryant is necessary. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records, VA examination reports, and hearing testimony. In March 2010, August 2011, and October 2012 the Board remanded the case to the RO via the Appeals Management Center (AMC) for additional development. The actions requested in the prior remands have been undertaken. In this regard, a VCAA notice letter was provided in March 2010, additional VA treatment records were obtained, a VA examination was conducted in July 2010, and a clarifying opinion was obtained in 2012. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc, 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service treatment records reflect medical care for a soft tissue injury (muscle strain) to the Veteran's upper back, with objective findings of tenderness to the left side trapezius muscle, after he fell on ice in February 1999. The service treatment records are otherwise negative for a cervical spine disability. Private treatment records from Emory-Adventist Hospital dated in June 2005 reflect that the Veteran was assessed with neck and back pain. The Veteran underwent a VA examination in October 2005. He reported constant pain over the previous eight years that traveled from the low back to the neck, when being examined for his thoracolumbar spine and from the neck to the low back when being examined for his cervical spine. Upon physical examination, cervical spine X-ray findings were within normal limits. Cervical spine flexion was to 40 degrees, extension was to 35 degrees, right lateral flexion was to 40 degrees, left lateral flexion was to 35 degrees, right rotation was to 70 degrees, and left rotation was to 65 degrees. The examiner diagnosed cervical strain. In an addendum later that month, the examiner provided an opinion that it was at least as likely as not that the cervical strain was secondary to the thoracolumbar strain. The Veteran underwent another VA examination in July 2010. He reported that he rarely had pain. He stated that he had paresthesia around the base of the neck, radiating down to the top of both shoulders, which came and went. He reported pain when he moved his neck in an awkward way, such as when sleeping. He stated that this pain did not last long. He reported that pain was aggravated by strenuous activity and by turning the neck. Following physical examination, the examiner diagnosed cervical spine strain. The examiner opined that it is less likely as not that the cervical spine strain had its onset or was caused by military service. In an August 2011 examination report, the examiner noted that x-rays were not taken at the July 2010 examination and thus, in his opinion, the Veteran did not have significant objective disease in the cervical spine; the diagnosis was cervical spine strain. The examiner concluded that it is less likely as not that the Veteran's current cervical spine condition had its onset in or was caused by military service. Following additional physical examination, the diagnosis of cervical spine strain was confirmed. X-rays of the cervical spine were normal. The examiner noted that the Veteran complained of tingling at the back and nape of the neck that does not radiate and a sharp pain intermittently which comes on spontaneously. The examiner continued to conclude that it is less likely as not that the Veteran's current cervical spine condition had its onset in or was caused by military service. In a November 2012 addendum opinion, the examiner opined that the claimed condition was less likely than not incurred in or caused by service. The examiner noted that the Veteran sustained a soft tissue injury to the upper back in February 1999 in service. The examiner reasoned that this one episode apparently resolved because other entries following this did not relate to this injury. The examiner noted that the Veteran had few problems with his neck at time of the October 2005 VA examination, as X-ray findings of the neck were normal and range of motion of the neck was within the range of normality. The examiner noted that the Veteran has multiple sclerosis and this condition can explain the current neurological symptoms. After review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a cervical spine disability. Although the Veteran has a current diagnosis of cervical spine strain, the most probative evidence indicates that such disability is not related to active service. The November 2012 VA examiner specifically addressed whether the Veteran's current cervical spine condition is related to service and concluded that it is less likely than not that this condition was caused by service. The examiner provided an adequate rationale for this opinion, noting that the one episode of an upper back complaint in service apparently resolved. Moreover, the examiner noted that the Veteran had few problems with his neck when he was examined in October 2005, and that x-rays have continuously been normal. Such opinion was provided following claims file review and examination of the Veteran, and included a rationale for the conclusion. Thus, such opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). There is no medical opinion to the contrary. The Veteran has reported having neck pain since 1997. However, other than the reference to upper back pain following a fall on the ice, his service treatment records reveal no complaints or treatment for any cervical spine disability. While the Board has considered the Veteran's assertions to the contrary, the Board finds the contemporaneous service treatment records are more reliable as to the extent of treatment, or lack thereof, during service than the Veteran's assertions of treatment rendered while seeking entitlement to VA benefits. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records is a factor that the Board can consider and weigh against a veteran's lay evidence); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Although the Veteran contends that his current neck condition is due to his military service, the Veteran is not shown to possess any specialized experience such that he is qualified to render a medical diagnosis or medical opinion concerning the diagnosis or etiology of a cervical spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Spine disabilities require medical testing and expertise to diagnose and to determine the etiology thereof. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current cervical strain is also a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."); see also Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013) (the continuity of symptoms provision of 38 C.F.R. § 3.303(b) only applies to the enumerated chronic conditions given in 38 C.F.R. § 3.309(a)). The most probative medical opinion of record with regards to the relationship of the Veteran's cervical spine condition to service is the opinion of the November 2012 VA examiner who has the training and expertise to render such an opinion. Thus, the opinion rendered in the November 2012 VA examination report is entitled to significantly greater weight than the Veteran's lay opinions. The Board acknowledges that the October 2005 VA examiner opined that the Veteran's cervical strain was secondary to his thoracolumbar strain. However, service connection for thoracolumbar strain was denied by the Board in March 2010. Thus, service connection for a cervical spine disability as secondary to a thoracolumbar disability cannot be established as a matter of law. 38 C.F.R. § 3.310; see also See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where law and not evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under law). In summary, a chronic cervical spine disability was not shown in service, there is no evidence of arthritis of the cervical spine shown during the year following discharge from service, and the most probative evidence of record indicates the Veteran's current cervical strain is not related to service, to include the complaint of upper back pain noted therein. Finally, service connection for a thoracolumbar spine was previously denied, and there is no basis to establish service connection for a cervical spine disability as secondary to a thoracolumbar spine disability. Thus, the preponderance of the evidence is against a finding of service connection for a cervical spine disability on any basis. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a cervical spine disability is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs