Citation Nr: 1315360 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 08-02 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to September 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a June 2012 Board video conference hearing. A transcript is of record. In September 2012 the Board remanded this matter for additional development. FINDING OF FACT The Veteran's current cervical spine disability was not manifest in service and is unrelated to any incident of service origin. Arthritis of his cervical spine was not manifest within the presumptive time period after service. CONCLUSION OF LAW The criteria for service connection for cervical spine disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify After reviewing the claims file, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. The claimant was informed of the information and evidence necessary to warrant entitlement to the benefits sought in an October 2005 letter. In that letter, the appellant was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370. The October 2005 letter was sent to the appellant prior to the February 2006 rating decision currently on appeal. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, the notice requirements apply to all five elements of a service connection claim: 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). In the present appeal, an April 2006 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. Accordingly, any defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield, 444 F.3d at 1333-34. Duty to Assist VA has obtained service and post service VA and private treatment records. The Board has reviewed the Veteran's Virtual VA file (VA's electronic database storage) and found no evidence that has not already been associated with the paper claims file. The Veteran was afforded VA examinations, pertinent to the issue on appeal, in November 2005 and May 2011. Pursuant to the September 2012 Board remand, on October 25, 2012, VA sent the Veteran a development letter asking him to submit additional evidence to support his appeal for his claimed cervical spine disability. No additional evidence to support his claim of entitlement to service connection for cervical spine disability has been received. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Legal Criteria Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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, 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, 1137; 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). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). 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). The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Factual Background The Veteran contends that service connection is warranted for his cervical spine disability because in October 1981, during active duty, he fell into a gun turret (or well) and hurt his low back and his neck. Service connection has been established for a low back disability. Service treatment records are negative for any complaints, history, treatment, or diagnosis of a neck/cervical spine disability, including arthritis or disc disease of the cervical spine. The October 1981 in-service incident to which the Veteran refers is noted in an October 1981 in-service treatment report. It is noted therein that the Veteran fell into a well and hurt his back and left wrist, and complained of head pain. On examination of his lower back it was tender to touch and he was unable to touch his toes. He was, however, able to touch his knees to his chest. At that examination, there wert no complaints whatsoever concerning the neck/cervical spine. In January 1983, and June 1988 the Veteran underwent periodic medical examination. On clinical evaluation showed a normal spine and other musculoskeletal. In a January 1983 Report of Medical History, the Veteran indicated he had no swollen or painful joints, arthritis, bone, joint or other deformity, or recurrent back pain. At his separation examination in July 1992 his spine and other musculoskeletal were normal on clinical evaluation. In a July 1992 Report of Medical History, it was noted that the Veteran had swollen knee joints. Base upon the foregoing, there is no indication from the service treatment records and other medical reports that the Veteran was treated for a neck/cervical spine injury during active service. Prior to undergoing a VA examination in November 2005, that specifically addressed the Veteran's neck/cervical spine disability, the Veteran underwent VA examination in December 1992, April 1995, November 1998, November 2000 (fee basis), July 2002, and February 2004. Those examination reports reveal no complaints, history or diagnosis of a neck/cervical spine disability. The December 1992 examination report noted examination of the neck was unremarkable. On April 1995 examination, the neck and other musculoskeletal were within normal limits with no evidence of disease, injuries or scars. Examinations in November 1998 and November 2000 focused on the lumbar spine with no findings reported for the cervical spine. On July 2002 examination the Veteran reported a history of lower back and knee problems; he did not report having any problems with his neck/cervical spine at that time. On February 2004 examination, there were no findings regarding the neck/cervical spine. On November 2005 VA (fee basis) examination, the Veteran reported that his neck disability was associated with a 1981 in-service injury. He stated that due to his cervical spine disability he has suffered from pain located at the base of the neck for six months; the pain occurs constantly. He stated he had muscle stiffness in the neck area and difficulty turning his head. He worked as a truck driver and part of his duties were loading and unloading 500 to 600 pounds onto pallet jacks. He stated that he had limitation of motion along with pain from his neck disability. He stated that his neck disability did not result in any time lost from work. The diagnosis was degenerative disc disease and spondylosis of the cervical spine. The examiner noted that the subjective factors were pain and stiffness with limited motion; and the objective factors were presence of limited range of motion with X-ray evidence of degenerative disc disease and degenerative arthritis. A December 2007 MRI [magnetic resonance imaging] of the neck revealed cervical spondylosis without canal or neural foramina stenosis. A January 2010 MRI of the cervical spine revealed mild degenerative disc disease, not significantly changed since the previous study. There was no significant neuroforaminal or spinal canal stenosis. January 2010 X-rays showed stable degenerative disc disease changes at C5-C6. On May 2011 VA spine examination, the Veteran again reported that the onset of his cervical spine disability was in 1981 when he fell off a gun turret. He stated that his cervical spine disability began with mild neck pain and stiffness, and the pain progressively worsened. He denied any problems with the cervical spine prior to active duty. He reported symptoms of fatigue, stiffness, decreased motion, weakness, spasm and pain. The diagnosis was cervical spine osteoarthritis/ degenerative joint disease confirmed by imaging, and cervical spine degenerative disc disease. Based on a detailed review of the Veteran's claims file VA examiner opined that the Veteran's cervical spine disability is less likely as not (less than 50/50 probability) caused by or a result of an in-service injury in 1981 where he fell from a gun turret. The examiner noted that the Veteran's cervical spine disability is the result of normal age-related degenerative change. It is multi-level symmetric and diffused. The pattern shown is more common with degeneration rather than trauma. In addition, the Veteran worked without problems for at least 20 years as a truck driver after the alleged in-service neck injury. The examiner noted further that being a truck driver is a known risk for degenerative disc disease. At his June 2012 video conference hearing the Veteran testified that he injured his low back and his neck in service in 1981 when he fell into a gun turret. He stated, the fall knocked him out and when he "came to" he climbed halfway out and his neck was hurting; he blacked-out and fell again, and eventually crawled out. During that time, the entire gun crew was asleep, he was the only one awake. He reported the incident to his section leader and was sent to the field medics, and later went to sick call. He could not recall when he started going to the doctor for his neck after separation from service. He stated that after service he worked a couple of odd jobs and completed the Department of Labor truck driving school. In late 1997 he met his second wife and was hired at the post office. He then started seeing Dr. Javier, who looked at his neck and ordered MRI's. He stated that before Dr. Javier died, he stated that his [the Veteran's] neck was "messed up." The Veteran further stated that another VA doctor told him that his neck disability was related to the same in-service incident that resulted in his low back disability (the 1981 fall). Analysis The Veteran alleges his current neck/cervical spine disability is a result of a neck injury in service, the same in-service incident that resulted in his low back disability (which, the Board notes, is already service-connected). The Board finds the Veteran's statements with respect to the onset of the claimed neck/cervical spine disability in 1981 and continuity of symptoms of that same neck injury are not credible. His current assertions are inconsistent with the overall evidence. Credibility is lacking because the back injury shown in the 1981 service treatment record refers to the lower back not the neck or cervical spine. Even the Veteran, at that time, reported injury to his back and there was no reported injury to his neck. Moreover, at that time, a medical officer physically examined the lower back and there were no reported findings associated with the neck. Furthermore, on periodic examination in January 1983, approximately 16 months following the October 1981 lower back injury, his spine and other musculoskeletal were reported normal. At his separation examination in July 1992, clinical evaluation showed a normal spine and other musculoskeletal. Post service, the evidence shows that the Veteran first reported symptoms of a neck disability when examined by VA in November 2005 (approximately 13 years following separation from service). Such a lengthy period without evidence of treatment may be viewed as evidence weighing against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Consequently, service connection for a neck/cervical spine disability on the basis that it became manifest in service and persisted is not warranted. In the absence of a finding of continuity of symptoms since service, the Veteran needs to establish service connection for a cervical spine disability by competent evidence of a nexus between his claimed disability and his active duty service. However, the evidence of record is against establishing any such nexus. On November 2005 VA examination the Veteran was diagnosed with degenerative disc disease and spondylosis cervical spine. VA examiner in May 2011 also diagnosed cervical spine osteoarthritis/ degenerative joint disease confirmed by imaging, and cervical spine degenerative disc disease and opined that the Veteran's cervical spine disability was less likely as not (less than 50/50 probability) caused by or a result of the 1981 in-service injury where he fell from a gun turret. The examiner explained that the Veteran had normal age-related degenerative change of the cervical spine; noting that pattern was much more common with degeneration rather than trauma. The Board finds the May 2011 VA examination report addressing this issue to be highly probative, as it presents a competent medical opinion informed by review of the pertinent evidence of record. As such, the examination report weighs significantly against the claim of entitlement to service connection for a cervical spine disability. There are no opinions to the contrary of record. The Veteran testified that a VA doctor told him that his neck disability was related to the same in-service incident (the 1981 fall) that resulted in his low back disability. However, he failed to respond to VA's request that he identify that doctor so that VA could assist him by trying to corroborate that opinion. The Board acknowledges the Veteran's allegations that he has suffered from a neck disability continuously since service, and recognizes that he is competent to testify as to observable symptoms. 38 C.F.R. § 3.159(a)(2); see also Layno v. Brown, 6 Vet. App. 465, 471 (1994) ("[C]ompetent testimony is limited to that which the witness has actually observed, and is within the realm of his personal knowledge"). However, to the extent that the Veteran claims to have suffered neck/cervical spine symptoms since an inservice injury, the Board finds such assertion not credible in light of the overall evidence. The Board notes that the Veteran first filed a claim for a low back disability in August 1992 prior to his date of separation from the service. He underwent a VA examination in December 1992. At that time, he failed to make any mention of a neck injury. He subsequently filed other claims, but did not include the cervical spine. The Veteran's failure to file for his cervical spine at those times suggests that he did not believe he had any cervical spine problems related to service as it would be reasonable to expect that he would have included them in his claims. At the November 2005 VA examination (when he initially complained of a neck problem), he attributed his neck disability to the 1981 in-service fall in the gun turret or well. As noted, service treatment records are void of any mention of neck/cervical spine complaints, treatment or diagnosis. The Board finds that the fact that the Veteran never complained of neck problems to service medical personnel when he had the opportunity to do so to be inconsistent with any current claim of continuing neck problems since the injury. It is even more significant that the Veteran did not express having neck problems at the time of his discharge in July 1992. It would be reasonable to expect that he would have reported such if he in fact was continuing to have neck problems. It is also significant that service medical personnel clinically evaluated his spine as normal at the time of discharge examination. Further, the record fails to show any corroborating evidence of continuing neck/cervical spine complaints for approximately 13 years after discharge. The Veteran's current assertions as to continuity of neck/cervical spine symptoms (since service) are simply inconsistent with the overall evidence, and therefore not credible. As a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for a cervical spine disability must be denied. See Gilbert, 1 Vet. App. 49. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs