Citation Nr: 1317707 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 08-14 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a neck disability. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1983, followed by service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In April 2012 the Board remanded the appeal for further development, and it now returns to the Board for appellate review. The June 2006 rating decision had denied service connection for a back disorder and a neck disorder. The Veteran had disagreed and perfected his appeal for both issues. By way of a February 2012 rating decision, the RO granted service connection for intervertebral disc syndrome with degenerative arthritis to the lower spine, claimed as a back disorder, which constituted a complete grant to that issue on appeal. FINDING OF FACT A neck disability did not have its onset during service or within one year of the Veteran's discharge from service, and is not the result of disease or injury incurred during the Veteran's military service. CONCLUSION OF LAW A neck disability was not incurred in the Veteran's military service. 38 U.S.C.A. §§ 101(24), 1101, 1112, 1113, 1116, 1131, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.301, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Stegall Considerations The Board observes that this case was remanded by the Board in April 2012. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the remand was to achieve further development of the claim, namely to obtain additional service records and to schedule a VA examination if necessary. A review of the post-remand record shows that the Veteran's National Guard service personnel records were located and that a VA examination was completed in December 2012. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the April 2012 remand, and that the Board may now proceed with adjudication of the claim. I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claims and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires that VA inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable AOJ decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in April 2006, prior to the initial unfavorable AOJ decision issued in June 2006. This notice informed the Veteran of the evidence necessary to establish service connection, of how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration. In addition, the letter addressed the evidence required to substantiate disability ratings and effective dates. Therefore, the Board determines that the Veteran was provided with all necessary VCAA notice prior to the initial adjudication of the claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. The Veteran's service treatment and personnel records, VA medical records, and the report of a December 2012 VA examination were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Board observes that the Veteran indicated that he had received private treatment for his neck from 1983 to 1986, but that the records had been destroyed in accordance with the physician's retention policy. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. With regard to the VA examination, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the examiner reviewed the claims file, noting relevant documents in service treatment records and post-service treatment evidence, documented the Veteran's subjective complaints and medical history, and examined the Veteran. The examiner then provided an opinion that was supported by a rationale based in all the available evidence. There is nothing to suggest that the examiner's opinion is not sufficiently based on the facts of the case or that he reached an arbitrary conclusion. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. II. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a). Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service, or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. §§ 3.303(a), (d). The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis and cardiovascular-renal disease, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Id. The Veteran contends that he has a current neck disability that is related to treatment for a prior neck injury during National Guard service. Therefore, he argues the service connection is warranted for a neck disability. Service personnel records reflect that the Veteran joined the California Army National Guard in July 1983, one month after his discharge from active duty. They establish that the Veteran entered a period of inactive duty for training (INACDUTRA) in November 1983. Service treatment records show that also in November 1983, he sought treatment for stiffness and pain in his neck after the bus ride to Camp Roberts the night before. The Veteran indicated he had suffered a neck injury when he tumbled off a motorcycle into the street about three weeks earlier. The diagnosis was post-whiplash injury exacerbation. Service treatment records do not reflect any further complaint, treatment, or diagnosis with regard to the neck. Current medical records reflect that the Veteran has a diagnosis of cervical spine spondylosis. A December 2012 VA examiner diagnosed cervical sprain and noted that imagine revealed arthritis. Therefore, the Veteran has a current disability with respect to this claim. Additionally, the December 2012 VA examiner, after reviewing the record and examining the Veteran, opined that there was not sufficient evidence to establish a nexus between the current neck disability and the Veteran's service. The examiner noted the Veteran's self-reported medical history in which he indicated that other than the November 1983 treatment, he had had no additional treatment for his neck between 1983 and 2006, and that he had not sought treatment for his neck since 2006. The examiner then concluded that the Veteran had a self-limited neck injury in 1983 that was treated for weeks with no additional treatment for 23 years, followed by a short period of VA treatment. With regards to the MRI showing osteoarthritis and foraminal narrowing, the examiner stated that these findings are consistent with the Veteran's age and occupation as a longshoreman. The examiner indicated that the 23 years between the treatment in 1983 and the treatment in 2006 was sufficient time for aging and wear and tear of a longshoreman to sustain osteoarthritis. The examiner stated that the Veteran's neck disability is less likely than not caused or aggravated by his period of INACDUTRA. There is no competent medical evidence that contradicts this opinion. The Board has considered the Veteran's statements in support of his claim. He is competent to describe symptoms, and in some instances, provide a diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board observes that, other than describing the in-service treatment for his neck and contending that the current disability is related, the Veteran has not offered any additional lay evidence of his neck disability that supports his claim. Besides the medical history noted by the VA examiner, the Board notes that the first VA treatment for neck complaints was in relation to shoulder and neck pain from doing heavy lifting as a longshoreman. The only reference in VA treatment records to the Veteran's in-service neck injury coincides with his claim for service-connected benefits. In light of these facts, the Board concludes that the evidence does not establish that the Veteran's current neck disability is etiologically a result of his military service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as reflected by the above discussion, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a neck disability. Therefore, his claim must be denied. ORDER Entitlement to service connection for a neck disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs