Citation Nr: 1318106	
Decision Date: 06/04/13    Archive Date: 06/11/13

DOCKET NO.  07-15 617	)	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.


REPRESENTATION

Appellant represented by:	Peter J. Meadows, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel


INTRODUCTION

The Veteran served on active duty from August 1981 to August 1984, and from November 1990 to August 1991.  He had additional service in the National Guard, including periods of active duty for training (ACDUTRA), between 1984 and 2004. 

This appeal comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a cervical spine disability. 

The Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in December 2009.  Thereafter, in February 2010 and July 2011 the Board remanded the claim for additional development, and in August 2012, the Board sought a medical opinion from the Veterans Health Administration (VHA), which was submitted in September 2012.  The Board then provided the Veteran with a copy of the opinion and the opportunity to submit additional argument and evidence by correspondence date in March 2013 letter.  The Veteran subsequently submitted additional argument. 


FINDINGS OF FACT

The most probative evidence indicates the Veteran's cervical spine disability is not related to service. 


CONCLUSION OF LAW

The requirements for establishing entitlement to service connection for a cervical spine disability have not been met.  38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b).  The notice requirements were accomplished in a letter sent in February 2007 and March 2010.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  The letters provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006).   

The Veteran was afforded a December 2009 Travel Board hearing before the undersigned Veterans Law Judge.  The United States Court of Appeals for Veterans Claims has held that, under 38 C.F.R. § 3.103(c)(2), a VA officer who chairs a hearing has the duty to explain the issues and to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  However, the Veteran has not contended, and the evidence does not otherwise show, that the undersigned Veterans Law Judge committed prejudicial error, either by failing to adequately apprise the Veteran of the issue presented or by neglecting to suggest the submission of helpful evidence that may otherwise have been overlooked.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.103(c)(2); Bryant, 28 Vet. App. at 296.  On the contrary, the hearing transcript reflects that the Veterans Law Judge identified the issues and also elicited testimony from the Veteran regarding his theories as to why service connection was warranted for his claimed cervical spine disorder.  The Veteran's testimony alerted the Board to the need for additional evidentiary development, which was thereafter accomplished to the extent possible pursuant to the February 2010 and July 2011 remands.  

The Board further observes that since November 2011, the Veteran has been represented by an attorney experienced in VA law, who certainly has actual knowledge of the bases for the prior denials of the service connection claim as well as the particular elements that have been found lacking in connection with that claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim).  Thus, no further action pursuant to Bryant or 38 C.F.R. §3.103(c)(2) is necessary and the Veteran is not prejudiced by a decision being rendered at this time. 

The claimant was provided the opportunity to present pertinent evidence.  The service treatment records, and available private and VA treatment records have been obtained.  In addition, he has been provided with VA examinations in connection with his present claim, and a VHA expert medical opinion was obtained.  He has not indicated there are any additional records that VA should seek to obtain on his behalf.  Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required.

Service Connection

The Veteran has claimed entitlement to service connection for a cervical spine disability.  He contends this disability is due to physical activity, including lifting of heavy objects, that he performed during his active duty and National Guard service.  

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).  If a condition noted during service is one of the specifically enumerated disease process listed at 38 C.F.R. § 3.309 and it is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection.  38 C.F.R. § 3.303(b); See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012).  

Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the Veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  38 U.S.C.A. 
§ 101(24); 38 C.F.R. § 3.6(a).  Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes.  38 U.S.C.A. 
§ 101(22); 38 C.F.R. § 3.6(c).  Inactive duty training (INCDUTRA) includes duty, other than full-time duty, prescribed for the Reserves.  38 U.S.C.A. § 101(23)(A). 

Thus, with respect to the Veteran's National Guard service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or (with the exceptions noted above) an injury incurred or aggravated while performing INACDUTRA.  38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304.  

Moreover, where a Veteran served continuously for ninety (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 within one year from date of termination of such service, such disease shall be presumed to have been incurred in 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  However, presumptive periods do not apply to ACDUTRA or INACDUTRA.  See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).  Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for his reserve service is not appropriate.

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

The Board has reviewed all the evidence in the appellant's claims file and electronic Virtual VA file.  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).

The Veteran served on active duty from August 1981 to August 1984 and from November 1990 to August 1991.  He served in the National Guard between 1984 and 2004 and generally had a two to three week period of active duty for training each year.  The remaining weeks of those years he worked in civilian employment.  The Veteran did not report any neck injuries or seek treatment for neck symptoms during either period of active duty or during active duty for training.  

After service, the Veteran was reportedly employed as a heating and air conditioning installer from the mid-1980s to the early 1990s.  His other civilian jobs have included working in a car wash, a retail store, and a grocery store.  The Veteran has not worked since September 2004 due to blood pressure and back problems.  The Veteran reports having had no treatment for neck symptoms prior to 2006.  In March 2006, he was involved in a motor vehicle accident.  He was seen in an emergency room for headache and neck pain.  Cervical spine x-rays showed hypertrophic bridging osteophytes anteriorly at C4-5-6-7.  There was no evidence of acute cervical injury.  A radiologist opined that the x-rays showed degenerative cervical spondylosis or possibly diffuse idiopathic skeletal hyperostosis (DISH).  There is no medical evidence establishing cervical spine arthritis manifested to a compensable degree within one year following separation from service.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

The Board has weighed statements made by the Veteran as to incurrence of a cervical spine disability during service and recurrence of symptomatology and finds the current recollections and statements made in connection with a claim for benefits to be of less probative value.  As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran.  Dalton v. Nicholson, 21 Vet. App. 23 (2007). 

The Board recognizes the Veteran's contentions as to the diagnosis and relationship between the service-connected cervical spine disability and service.  The Board acknowledges that he is competent to testify about what he experienced; for example, he is competent to discuss symptoms of pain and stiffness in the neck, and other observable problems.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the diagnosed cervical spine degenerative changes and its medical causation are not subject to lay observation or assertion, and fall outside the realm of common knowledge of a lay person.  The diagnosis was based on clinical findings, to include radiographic studies.  For this reason, his cervical spine disability is not a simple medical condition that the Veteran is competent to etiologically relate to any medical disability, injury or activity as he is not shown to be qualified through education, training, or experience to interpret clinical findings of a disease process or interpret diagnostic studies and determine its etiology.  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).  Given the complex nature of the disability his assertions do not constitute competent medical evidence that he suffers from a cervical spine disability, to include arthritis, that is a result of service. 

The Veteran's attorney has argued that because the Veteran is competent to testify as to symptomatology and has testified that his symptoms were continuous since service, a nexus opinion is not needed to link his symptoms to his current disability.  However, while the Veteran is competent to testify as to symptoms, he is not competent to diagnose those symptoms allegedly experienced during service as arthritis.  Whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his currently diagnosed cervical spine disability is 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.").  Moreover, the Veteran did not specify whether those stiff neck complaints were first manifested during active duty, ACDUTRA, INACDUTRA, or merely during non-training periods while a member of the reserves.  Thus, simply because the Veteran recalls having a stiff neck during service and since service does not, in and of itself, provide sufficient support for establishing service connection in the absence of competent medical evidence linking those complaints to his current diagnosis.  

With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, which may include a review of medical literature; and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Also, the probative value of a medical opinion is generally based on the relative merits of the analytical findings, and the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion.  Id.  Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion.  Prejean v. West, 13 Vet. App. 444 (2000).

The evidence in support of his claim consists of medical statements from the Veteran's treating chiropractor, Dr. Stull.  In a December 2009 statement, Dr. Stull noted that he first treated the Veteran following the 2006 motor vehicle accident (MVA).  He indicated that the 2006 diagnosis was neck and back sprains associated with and complicated by extreme pre-existing spinal arthritic spurring and joint degeneration.  Dr. Stull stated that the type and severity of the Veteran's spondylosis takes many years to develop.  He opined that the Veteran's spinal condition was not caused by the 2006 MVA, but by extreme wear and tear over a long period of time, such as the Veteran experienced in his Armed Services career.

Thereafter in an August 2010 statement, Dr. Stull reiterated that the Veteran's cervical spine spurring developed over a long period of time, through continuous micro-traumas such as the Veteran reported experiencing over a long military career.  Dr. Stull opined that there was a 90 percent probability that the Veteran's cervical spine disorder was a result of his military service.  

The evidence against the claim consists of the medical opinions of VA examiners and physicians in July 2010, March 2012, May 2012, and the VHA medical expert in September 2012, who opined that the Veteran's current cervical spine disability was less likely than not due to service.  

On VA examination in July 2010, the Veteran reported of a history of pain in his neck and entire back since the late 1980s, without any preceding accident or injury.  Reportedly, the Veteran had renewed neck pain after the 2006 MVA.  Cervical spine CT showed evidence of severe DISH.  The examiner opined that the Veteran's current cervical spine disabilities were less likely than not related to his service.  The examiner explained that the Veteran did not report neck pain during service, and the chiropractic records were consistent with a finding of onset of neck pain after the 2006 MVA.  The examiner opined that neck pain was caused more by muscle strain that was sustained in the 2006 MVA than by spine degeneration.

On VA examination in March 2012, the Veteran reported he was not aware of any neck condition prior to the 2006 MVA.  The Veteran stated that he occasionally noted some neck stiffness prior to the accident, but had had no previous back injuries other than from climbing, lifting, and carrying back packs during service.  The examiner diagnosed significant degenerative arthritis of the cervical spine and radiculopathy of the left upper extremity.  The examiner opined that it was less than a 50 percent probability that the Veteran's current cervical spine disability was related to active duty service or to training while in service.  The rationale provided was that there were no entries to indicate any significant cervical spine condition during either period of active duty service.

In a May 2012 opinion report a VA physician noted that the Veteran was a middle aged male, and there was no evidence that the Veteran experienced prolonged exposure to retinoid medications or developed type II diabetes mellitus while in service.  The VA physician found it less likely as not that the Veteran's current cervical spine condition was related to service.  He noted that the record showed the 2006 MVA and the Veteran's report of being told at the time that he had arthritis and calcification in the neck and back, as well as the Veteran's recollection of prior neck stiffness related to strenuous activities while on active duty.  The VA physician stated that the only potentially pertinent injuries noted while on active duty were acute self-limited minor injuries to the low back.  

In August 2012 the Board sought an expert opinion from a VHA specialist as to the nature and etiology of the Veteran's cervical spine symptomatology.  In the September 2012 opinion, following a review of the Veteran's claims file, the reviewing VHA orthopedic surgeon opined that it was less likely than not that the Veteran's cervical spine disability was caused by, resulted from, or was permanently aggravated by the Veteran's military service.  The specialist noted 
that the evidence showed that the Veteran's cervical spine became symptomatic after the March 2006 MVA, at which time spondylosis and osteophytes interiorly from C4-C7 were noted on x-ray.  The specialist stated he could not find any reference in the claims file to a neck condition prior to that time.  The specialist reviewed the opinion reports submitted by Dr. Stull and opined that his opinions were highly speculative and not supported by the evidence of record.  The specialist agreed with Dr. Stull's findings that osteophyte formation was a slow process that took a long time to develop.  He also agreed that the condition could be aggravated by strenuous activity.  However, he stated that how Dr. Stull arrived at the conclusion that the Veteran's current cervical spine disability was caused by undocumented and unreported injuries allegedly incurred in service, as opposed to the many years the Veteran was employed in jobs that required heavy lifting and straining, was beyond comprehension.  In this regard, the orthopedic surgeon noted that during the periods the Veteran was not in active duty he was employed as a heating and air conditioner installer, and also worked in a carwash, retail store and grocery store.  Moreover, Dr. Stull's exclusion of a violent MVA as the cause of the Veteran's current cervical spine complaints, and to which the Veteran has attributed onset of his neck problems, was also beyond reasonable evaluation.   

The Board assigns greater weight to the opinion of the orthopedic surgeon because he has greater specialized expertise in the area of diagnosing and determining the etiology of orthopedic disorders.  Also, the VHA specialist's opinion is based on review of the claims folder, to include the Veteran's service treatment records, post-service treatment records, and VA examination reports, and refers to relevant documentation in the claims file, to include the medical opinions rendered by Dr. Stull.  The orthopedic surgeon explained, based on sound medical principles, why the Veteran's cervical spine disability was not caused or aggravated by service and why Dr. Stull's opinions were inadequate and inconsistent with the evidence of record.  The VHA physician's conclusion is fully explained and is consistent with the competent and credible evidence of record.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  In this regard, the Board observes that the VHA physician and VA examiners in July 2010, March 2012, and May 2012, reached the same conclusions.  Indeed, following a review of the Veteran's claims file and an examination of the Veteran, the VA examiners concurred as to the lack of any nexus between the Veteran's active service and his current cervical spine problems and instead attributed the neck problems to occupational heavy lifting and straining, as well as the March 2006 MVA.  

Conversely, Dr. Stull appears to have considered the Veteran's entire reserve service as being equivalent to full time active duty service.  In this regard, Dr. Stull does not make a distinction between the length of time the Veteran spent on active duty and the two to three weeks of ACDUTRA per year with the National Guard, versus the years spent in non-training status as a member of the National Guard.  In this regard, his opinion was based on the Veteran's "extreme, long lasting trauma" during his "Armed services career."  However, the long career was as a reservist, not on active duty.  His active duty period combines to less than four years cumulatively, with only two to three weeks a year of ACDUTRA during his 20 year reserve service.  During this 20 year period, he did not report any neck complaints.  Such complaints were first shown following the MVA in 2006.  

Moreover, Dr. Stull did not take into account the Veteran's civilian work history during those 20 years of reserve service.  As noted above, only diseases or injuries incurred or aggravated during periods of ACDUTRA (or injuries sustained during INACDUTRA) can be considered for establishing service connection.  A disability arising during non-training periods with the National Guard is not subject to service connection.  As his opinion does not differentiate between the Veteran's periods of active duty and ACDUTRA, versus the non-training periods during his "Armed services career" and civilian employment, the opinion is afforded significantly less probative weight.  See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence).  Additionally, the Board finds the opinion of an orthopedic surgeon to be more probative than an opinion from a chiropractor, as the orthopedic surgeon has significantly more extensive education and training than a chiropractor.  See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data).  Thus, although the opinions from the chiropractor are competent medical evidence, they are significantly less probative than the opinion from the VA orthopedic surgeon.  

In summary, the most probative evidence of record indicates that the Veteran's current cervical spine disability is not related service, and there is no competent evidence of arthritis within one year following discharge from active duty service.  Thus, the Board finds that the preponderance of the evidence is against the claim for service connection for a cervical spine disability, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

Service connection for a cervical spine disability is denied.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs