Citation Nr: 1316775 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 07-28 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a cervical spine disability, characterized as a cervical sprain with ruptured discs at C3-4 and C4-5, status post cervical fusions. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1977 to June 1977. He also had service with the Army National Guard, including active duty for training (ACDUTRA) in July 1981 to which he ascribes the cervical spine disability at issue here. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In December 2008, the Veteran appeared at a hearing at the RO before a Decision Review Officer. A transcript of that hearing is in the claims file. In May 2009, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is also in the claims file. This claim was previously before the Board in September 2009, when the claim of service connection for a cervical spine disability was denied. The Veteran appealed the denial of service connection to the United States Court of Appeals for Veterans Claims (Court), which in August 2010, granted a Joint Motion for Remand of the parties (VA Secretary and the Veteran), and vacated the Board's decision and remanded the case pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Motion. Pursuant to the Joint Motion, the claim was remanded for further development in October 2010. This claim was again before the Board in March 2012, when it was again remanded for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran submitted additional evidence with respect to this claim in June 2012. He waived his right to have this evidence considered in the first instance by the RO in April 2013. FINDING OF FACT The Veteran's cervical spine disability has not been shown to have been caused or aggravated by the injury occurring during his period of ACDUTRA. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (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). 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 a letter in November 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. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. In the instant case, the Veteran was never informed of how VA determines disability ratings and effective dates. However, as the instant decision denies service connection, no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is moot. Therefore, no further development is required regarding the duty to notify. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the 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. 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 Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Previous attempts were made to obtain private medical records from 1981, but the physician concerned is no longer in practice and it has been determined that any further attempts would be futile. Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at a May 2009 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no other 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. In compliance with the Board's March 2012 remand, VA obtained an addendum opinion to the previous VA examination of November 2011. This April 2012 addendum, considered alongside the examination, contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record and documented the Veteran's current complaints. Moreover, the VA examiners performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the March 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Further regarding the duty to assist, the United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At his hearing in May 2009, the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination. Ultimately the claim was remanded for a new examination. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. For the above reasons, no further notice or assistance to the Veteran 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). Principles of Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). The term "active military, naval, or air service" means active duty and includes any period of ACDUTRA during which the individual concerned was disabled. 38 U.S.C.A. § 101(24); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The term ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. 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). 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. 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) (holding that, 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). 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")). Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of pre-existing diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service, are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309. However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995). 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 Veteran's service records show that he sustained an injury to his back and neck during his civilian job prior to reporting for ACDUTRA in July 1981. Although he presented a medical excuse, and was taking pain medication and muscle relaxers, he was still told to report for duty. The neck injury was apparently aggravated during ACDUTRA when he jerked his neck, on approximately July 12, 1981. On July 14, 1981, the Veteran hurt his neck while riding in an armored personnel carrier that came to an abrupt stop. On examination, his cervical spine was tender at C6-C7 and he exhibited a 50 percent loss in forward flexion. X-rays of the cervical spine were read as negative except for a slight change in curvature and a mild cervical sprain was diagnosed. The record shows that the Veteran underwent a cervical fusion of C4-C5 in 1989. After a motor vehicle accident in 1993 aggravated his neck pain and other symptoms, he underwent cervical fusion of C3-C4 in June 1994. The Veteran has provided written statements from several fellow soldiers in the National Guard attesting to his injury in 1981 and his progressively worsening symptoms afterward. All stated that they were aware of the need to be careful in driving vehicles to avoid sudden movements which caused the Veteran increased pain and stiffness. He has also submitted a copy of a court order dismissing a personal injury law suit filed in 1994 which discusses evidence from the Veteran's own physician that his ruptured cervical disc was not due to the motor vehicle accident in 1993. Also of record are written statements from the Veteran's family members attesting to the 1981 and the subsequent pain and later fusion surgeries. His wife stated that in 1982 the Veteran was off work for a time due to loss of strength in his right side and they required financial assistance. The Veteran contends that his injury in 1981, aggravated by the incident in service, progressively worsened over time, eventually requiring a cervical fusion in 1989. In some written statements, the Veteran has also argued that there was no pre-existing cervical strain or ruptured discs aggravated by service, but that his current disability is a result solely of the accident in 1981 during ACDUTRA. At a formal hearing held before a Decision Review Officer at the RO in December 2008, the Veteran testified that just prior to reporting for National Guard camp in 1981 he pulled a muscle in his neck at his civilian job. His doctor advised him not to go to camp, but his commanding officer would not accept his medical excuse. During this period of ACDUTRA, he was riding in an armored personnel carrier when the vehicle stopped suddenly and he was thrown forward into a hatch. He sustained whiplash from the incident and testified that his neck swelled up and became stiff. He was treated during his period of ACDUTRA with physical therapy and ice packs. The Veteran testified that since the injury he had undergone two cervical fusions to address symptoms caused by a bulging or ruptured disc in his neck which was putting pressure on his spine. In December 2008, the Veteran consulted a private physician to request an opinion with respect to his earlier injury and whether it was related to his need for cervical fusion. The physician informed the Veteran that he could not offer an opinion because he had not participated in the Veteran's care in 1989 at the time of the first cervical fusion and advised him to have someone investigate the claim using the records from that time period. At his May 2009 hearing before the undersigned, the Veteran testified that he reported to ACDUTRA service in 1981 with a pulled muscle in his neck. After sustaining whiplash during drives over rough terrain, he was treated with heat packs during the rest of that period of service. He subsequently received continuing treatment from his private physician for headaches, as well as neck and shoulder pain. He underwent an MRI in 1989 which showed bulging discs requiring a cervical fusion. A later motor vehicle accident in 1993 further aggravated the problem and he underwent an additional cervical fusion. He continued to receive treatment for neck pain, including pain medication and steroid injections. He testified that it was his opinion that if his superiors had not required him to report for summer camp in 1981 despite his medical excuse, he would not have a cervical spine disability today. The Veteran underwent a VA examination for his cervical spine disability in November 2010. That examiner offered the opinion that a cervical spine sprain originally incurred in connection with a civilian job injury prior to the Veteran's second period of ACDUTRA in July 1981 was aggravated by his whiplash injury. The examiner reasoned that the Veteran had cervical sprain per his claims file and that he had a MRI performed in October 1989 by a private examiner that showed bulging discs just prior to the Veteran's first cervical spinal fusion. The Board determined that the rationale provided by the VA examiner in November 2010 was insufficient to decide the claim because it did not address or otherwise acknowledge the July 1981 X-ray which was negative as to bulging discs or other abnormalities. Nor did the examination discuss periodic examinations in National Guard service, performed in July 1985 and April 1989, which showed no complaints of neck pain and no indication of any ongoing neck injuries or disabilities. On remand, in April 2012, the VA examiner provided an addendum to her earlier opinion. After reviewing the claims file in its entirety, the examiner offered the opinion that the Veteran's pre-existing cervical spine injury was not aggravated by his ACDUTRA service, including the July 1981 injury. The basis given for the opinion was that the X-ray in service at the time of the injury was negative and that the Veteran did not complain of neck problems on subsequent examinations between 1981 and 1989, when bulging discs were first diagnosed. In May 2012, the Veteran submitted an additional medical record from the surgeon who performed his first cervical fusion. This record, dated in May 1990, states that the Veteran "went to the National Guard and he developed further symptoms in his neck and in his arms." The Veteran argues that this statement may be interpreted as providing a causal link or nexus between his 1981 injury and his subsequent cervical fusion in 1989. He asserts that although he was pain free on periodic examination a few months before this visit, and no pathology was noted at that time, the need for drastic surgery so soon thereafter demonstrates that the injury was present at the periodic examination in 1989. In May 2012, the Veteran also submitted copies of Board decisions in two other cases, with extensive handwritten notations pointing out facts similar to those in his own claim. The submissions both reflect awards of service connection for cervical spine injuries. Also included were several articles from the internet discussing injuries to the spine, and the Veteran's reports on specific studies related to whiplash and subsequent development of ruptured discs. A May 2012 treatment note and statement by a private physician was also submitted. The provider noted that he had taken the history as provided by the Veteran and that the transcription of the history in the treatment note was accurate. Specifically, he observed that the Veteran "has a long history of neck pain that began after an injury while in the Army that led to what sounds like subsequent unstable C-spine and emergent surgery. He has had pain since." In an attached statement, the Veteran asserted that the provider had reviewed the medical records and determined that the 1981 injury led to his eventual cervical fusion surgeries. Analysis Normally, analysis of a claim for service connection includes a discussion of whether the claimed disability was documented in service. In this instance, the record shows, and the Veteran himself has stated, that he had an existing injury to his cervical spine at the time he presented for ACDUTRA in July 1981. As noted above, the presumption of sound condition at the time of service entrance under 38 U.S.C.A. § 1111 does not apply to injuries claimed in relation to periods of ACDUTRA. Thus, a cervical spine injury is found to preexist the Veteran's period of ACDUTRA in July 1981. Therefore, the question before the Board is whether the evidence demonstrates that the Veteran's current cervical spine disability is a result of his ACDUTRA service, to include as an aggravation or permanent worsening of earlier cervical spine injury such as from the jarring described by the Veteran as a result of the travelling conditions within the armored personnel carrier. The Veteran's own statements and those by his family and fellow soldiers indicate that he reinjured his neck during ACDUTRA. The limited treatment records from this period of service also support that at least some reinjury to the neck occurred. However, because a preexisting neck disability has been found, the Board must determine whether this injury represented a permanent worsening of the Veteran's pre-existing cervical spine injury. In making this determination, the Board is guided by the X-rays taken in 1981, which did not show any damage with the exception of a slight loss of curvature. At this time, the provider diagnosed a mild cervical sprain. In addition, the VA examination of November 2010 and April 2012 yielded the ultimate conclusion that the Veteran did not suffer a permanent aggravation of the cervical spine, based in large measure on the contemporaneous X-ray evidence. As a result, the subsequent cervical spine fusion was not attributable to the in-service injury. Also persuasive to the Board is the fact that the Veteran was first diagnosed with a cervical spine condition and underwent surgery to treat it in 1989, some eight years after service separation. The first discussion of bulging discs occurred after imaging studies performed at that time. Periodic examinations for continued National Guard service were devoid of any discussion of cervical spine problems. The subsequent second cervical fusion surgery took place in June 1994, some 14 years after service separation. The Board acknowledges the Veteran's explanations regarding the absence of evidence of treatment for neck pain between the 1981 injury and the 1989 surgery. Specifically, he has stated that his treating physician's records are no longer available because they were destroyed upon his death and that during National Guard periodic examinations, the medical personnel did not want to hear his complaints of pain and ongoing problems. However, most critical to the Board's determination in this matter is the result of imaging and diagnostic testing, such X-ray and MRI, which did not reflect bulging discs in the cervical spine until 1989. These bulging discs were the basis for the Veteran's cervical fusion surgery and are part of the underlying disability at issue. Although the Veteran and his family are competent to describe facts of which they have firsthand knowledge, such as the symptoms of injury witnessed by the family and the Veteran's own history of continued symptomatology, there is no evidence that either the Veteran or any of his family members possess the required knowledge, expertise, and training to offer a competent medical opinion. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (citing Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), noting general competence of lay persons to testify as to symptoms, but not a medical diagnosis and noting by example the competence of lay testimony with regard to a broken leg, but not a form of cancer). The Veteran has not provided competent medical evidence that links his current cervical spine disability to his military service, to include as a question of aggravation of a pre-existing disability. The May 2012 treatment note shows an opinion based on the history provided by the Veteran; however, a bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). In this case, the provider attested that the history was recorded accurately, but the recitation of the facts is not complete. For instance, the provider did not discuss the question of a pre-existing injury and whether there was permanent worsening in service. Moreover, that provider also appeared to indicate that the Veteran's cervical fusion surgery was due to his in-service injury, although it did not occur for some eight years after the injury. For these reasons, the Board rejects the recorded history of the May 2012 treatment provider as competent medical evidence linking the Veteran's current cervical spine disability to his ACDUTRA service. In addition, the Veteran has argued that the May 1990 treatment record from his surgeon regarding the development of additional symptoms in service is evidence that the surgeon found a causal link between the ACDUTRA service and the subsequent fusion. However, the Board notes that this document, too, fails to fully account for the history of the Veteran's injury, including the fact that no pathology was shown at the National Guard periodic examination conducted just a few months prior. As such, the Board rejects or discounts the probative valued of this statement with regard to a nexus between the initial cervical fusion surgery and his military service. The Veteran has submitted Board decisions in other claims that resulted in grants of service connection for cervical spine injuries. The Board notes that such decisions are not precedential in nature and are based on discreet facts and circumstances specific to each case. While the Veteran's situation and history of symptoms share some similarities with each of the cases, the factors considered crucial by the Board, including the lack of a competent medical opinion on the question of nexus and the rules regarding pre-existing injuries and presumption of soundness are not identical to the cases cited. The Veteran has also submitted articles regarding the nature of cervical spine injuries, the length of time that can pass between injuries and the need for surgery, and the types of injuries which can lead to significant pathology. The Board has no quarrel with any of these facts presented, but notes that the articles contain a wide range of possibilities in each of these areas, any one of which could apply to the Veteran's current disability. The articles, while informative, are not instructive or helpful in pinpointing the etiology of the Veteran's current disability. Medical opinions sought, based on the complete facts of the Veteran's medical history either do not provide support for the Veteran's claims or openly contradict them. The Board considers the specific information of those medical opinions to be more probative in this instance than the generalized information contained in the articles submitted. In light of the facts discussed above, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a cervical spine disability is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs