Citation Nr: 1318653 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 06-17 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a cervical spine disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active service from September 1976 to September 1981. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in part, denied service connection for degenerative disc disease of the cervical spine. The Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at a Board videoconference hearing in October 2009. A transcript of this proceeding has been associated with the claims file. In January 2010, the Board disposed of other issues on appeal and remanded the remaining cervical spine issue to the RO for further development. In March 2012, the Board again remanded this issue to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. The claim has now been returned to the Board for appellate disposition. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran'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 Veteran's cervical spine disorder was not manifested during her active military service, is not shown to be causally or etiologically related to her active military service, and is not shown to have manifested to a degree of 10 percent or more within one year from the date of separation from the military. CONCLUSION OF LAW Service connection for a cervical spine disorder is not established. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist Under applicable law, 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, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in June 2003, September 2003, and August 2008 provided the Veteran with an explanation of the type of evidence necessary to substantiate her claim, as well as an explanation of what evidence was to be provided by her and what evidence the VA would attempt to obtain on her behalf. The August 2008 letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The August 2008 duty-to-assist letter was not provided before the initial RO adjudication of her claim in the February 2004 rating decision. However, after she was provided the August 2008 letter, the claim was then readjudicated in the May 2009, February 2011, and October 2012 Supplemental Statements of the Case (SSOCs) based on any additional evidence received in response to that additional notice. This is important to point out because if there was no VCAA notice provided prior to the initial adjudication of the claim, or for whatever reason the notice provided was inadequate or incomplete, this timing error may be effectively "cured" by providing any necessary notice and then going back and readjudicating the claim, including in a Statement of the Case (SOC) or SSOC, such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of her claim. In other words, this timing error in the provision of the notice is ultimately inconsequential and, therefore, at most nonprejudicial, i.e., harmless error. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. Her STRs and post-service treatment records have been obtained. Her Social Security Administration (SSA) disability benefits decision was also associated with the claims file. However, in an April 2012 statement, SSA informed VA that the records associated with this decision had been destroyed. The Veteran was informed of this fact in a letter from VA dated in April 2012. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran participated in VA examinations in August 2008 and March 2010, the results of which have been included in the claims file for review. The examinations involved reviews of the claims file, thorough examinations of the Veteran, and opinions that were supported by sufficient rationale. Therefore, the Board finds that the examinations, when taken in totality, are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. Furthermore, the Veteran was afforded a Board videoconference hearing in October 2009. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2012); Procopio v. Shinseki, No. 11-1253, 2012 WL 4882287 at 3 (Vet. App. Oct. 16, 2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the Board hearing, the AVLJ specifically noted the issue, in pertinent part, as entitlement to service connection for degenerative disc disease of the cervical spine. The Veteran was assisted at the hearing by an accredited representative from Disabled American Veterans. See BVA Hearing Transcript, page 2. The Veteran's representative asked questions to ascertain whether the Veteran had submitted evidence in support of this claim. See BVA Hearing Transcript, pages 8-10. The representative sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Id. In addition, the representative asked questions to draw out the evidence which related the Veteran's cervical spine disorder to her active service, the only element of the claim in question. See BVA Hearing Transcript, pages 2-6. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the element necessary to substantiate her claim for benefits. As such, the Board finds that the AVLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Board is also satisfied as to substantial compliance with its January 2010 and March 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). These remands included scheduling the Veteran for another VA examination, which she had in March 2010, and additional VA medical opinions, which were provided in March 2010, August 2012, and September 2012. The remands also included obtaining the Veteran's SSA records, which have been associated with the claims file, as described above. The remands also included obtaining the Veteran's recent VA treatment records, which were obtained and associated with her claims file. Finally, the remands directed the RO/AMC to readjudicate the claim, which was accomplished in the February 2011 and October 2012 SSOCs. Thus, the Board finds that there has been substantial compliance with its remand directives. Id. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection The Veteran seeks service connection for a cervical spine disorder. To establish direct service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis (i.e., degenerative joint disease), will be presumed if they manifest to a compensable degree within one year following the active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. §§ 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. As noted above, the first element of direct service connection requires medical evidence of a current disorder. Here, a current diagnosis has been established. The Veteran was diagnosed with degenerative disc disease of the cervical spine at the August 2008 and March 2010 VA examinations. The Veteran was also diagnosed with traumatic arthropathy of the cervical spine with myelopathy by the VA Medical Center (VAMC) in April 2006. In October 2005, the Veteran was diagnosed with cervical stenosis by the VAMC. In March 2005, the VAMC diagnosed the Veteran with cervical spondylosis with myelopathy. Further, the Veteran was diagnosed with degenerative joint disease of the cervical spine by the VAMC in November 2001. Thus, the Veteran has satisfied the first element of service connection. As stated above, the second element of direct service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. The Veteran contends that she injured her neck during military service in approximately December 1979, when a fellow postal clerk threw a bag of mail directly at her head and neck. In this regard, her STRs document that in January 1980, the Veteran was seen for upper thoracic pain, which was "likely related to bed." A January 1980 X-ray of the cervical spine was normal. The Veteran's September 1981 military separation examination did not document any cervical spine problems. Post-service, the Veteran was afforded a VA examination in 1984, in which back pain, but no neck complaints, were noted. The first post-service relevant record related to a cervical spine disorder was in an April 1990 VAMC magnetic resonance imaging (MRI) record, which documented that the Veteran had cervical spondylosis. The first post-service complaint of neck problems was in 1992 by the VAMC. Again, the Veteran's active duty ended in 1981. This lengthy period without treatment for the disorder weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (holding that service incurrence may be rebutted by the absence of medical treatment of the claimed disorder for many years after the military discharge). As previously mentioned, the third element of direct service connection requires medical evidence of a nexus between the current disorder and the in-service disease or injury. Here, the only nexus opinions of record are negative. Specifically, the Veteran was afforded a VA examination regarding her cervical spine in August 2008. Initially, the August 2008 examiner noted that the STRs did not document an injury to the neck. Upon a physical examination of the Veteran, the examiner diagnosed the Veteran with degenerative disc disease of the cervical spine. The examiner also opined that she could not resolve the issue of entitlement to service connection for a cervical spine disorder without resorting to mere speculation. She noted that there was no documentation whatsoever concerning a cervical spine injury while in service. In its January 2010 remand, the Board found that, in considering the evidence as a whole, the January 1980 in-service report of upper thoracic pain, included the neck area. Thus, the Board remanded the claim for a new VA examination and medical opinion to be obtained. Accordingly, in March 2010, the Veteran was afforded another VA examination. Following a physical examination of the Veteran and a review of the claims file, the VA examiner determined that the Veteran's current cervical spine disorder was less likely as not (less than 50/50 probability) related to her complaints in service. The examiner reasoned that the record is silent regarding treatment or complaints related to the Veteran's cervical spine between 1981 and 1992 (or later). The examiner noted that the Veteran's significant complaints did not begin until 2001. The examiner also pointed to the Veteran's post-service complaints of a whiplash injury in 1992. Therefore, the examiner found that there was no evidence of a chronic disabling cervical spine disorder. The examiner provided an alternative theory for the etiology of the Veteran's cervical spine pain - namely, osteoporosis. The examiner stated that the Veteran has multiple risk factors for osteoporosis. In accordance with the Board's remand directives, the Veteran was afforded another VA medical opinion in August 2012. The March 2010 VA examiner re-reviewed the Veteran's claims file, to include the newly added SSA decision. The examiner noted that these new records established that the Veteran was awarded SSA disability benefits for her knee and spine problems, starting in 2002. However, per the examiner, these additional records did not provide a nexus sufficient for service connection. The examiner indicated that the SSA records did not provide additional evidence of treatment during the period when the medical records were silent. Another VA addendum medical opinion was provided in September 2012. The March 2010 VA examiner re-reviewed the Veteran's claims file, to include the newly added SSA decision. The examiner found that the nature of the in-service 1979 injury, per the Veteran's history, was a blow to her head and neck by a large bag of mail. However, the examiner pointed out that this incident was not sufficient enough to prompt the Veteran to seek medical treatment, as the examiner noted that the Veteran was first treated post-service, twelve years after this claimed in-service injury and two years after a whiplash injury. The examiner also pointed out that the in-service blow to the Veteran's head was not documented in the record until 1992, when the Veteran described the incident to a VA physician. The examiner then determined that the Veteran's cervical spine disorder was typical for her age, and was not consistent with a traumatic injury. The examiner stated that traumatic spinal injuries present with fractures or acute symptoms of muscle spasm and limitation of motion. The examiner indicated that occasionally severe ligamentous injuries can be visualized by examination under anesthesia or MRI studies. The examiner found that none of these were documented in the Veteran's STRs, and thus her symptoms were not consistent with a traumatic injury. Instead, the examiner pointed out that VAMC MRI studies in 1992 showed degenerative changes in the cervical spine. In 1992, the Veteran was 45 years old. The examiner found that degenerative changes would have been normal on an MRI study at that time in the Veteran's life. As further support for the examiner's negative nexus opinions throughout this appeal, the examiner pointed to the time interval between the Veteran's history of an in-service neck injury and her first seeking treatment for her neck. The examiner noted the intervening whiplash injury. The examiner also stated that no specific neck injury was documented in the Veteran's STRs; instead, only upper thoracic spine pain was documented. The VA examiners clearly reviewed the STRs and other evidence in the claims file. They provided medical opinions that are supported by and consistent with the evidence of record. They provided alternative theories to address the etiology of the current cervical spine disorder. There is no positive evidence to the contrary of these opinions in the claims file. The treatment records do not provide contrary evidence. For all of these reasons, service connection is not warranted. The Board notes that the Veteran reports continuous symptomatology since her active military service. However, the Veteran's contentions are not supported by the medical evidence of record. As stated above, the earliest pertinent post-service medical evidence associated with the claims file is dated from 1990, almost ten years after the Veteran's military separation in 1981. Furthermore, the Board notes that the record contains evidence of other traumatic incidents cited, including an apparent distant history of domestic abuse, with multiple traumas to the head (and potentially involving the cervical spine), and whiplash injury, as reported in the VA treatment records. These post-service incident demonstrate that the Veteran has not had continuous cervical spine problems since her active military service; instead, there are superseding causes. Further, the STRs do not show that the Veteran developed a chronic cervical spine disorder during her active military service. The STRs document one incident of pain, which is not a chronic disorder. Further, the cervical spine X-ray taken in service was normal, and no cervical spine complaints were noted on the military exit examination. The evidence of record does not document continuity of symptomatology during and since the Veteran's active military service. Thus, the Board finds that the medical evidence does not establish a "chronic disorder." 38 C.F.R. § 3.303; see Walker, 708 F.3d at 1331. The Veteran's service connection claim cannot be granted on this theory of entitlement. Additionally, the Board finds that the Veteran is not entitled to presumptive service connection for degenerative joint disease of the cervical spine. As stated above, the earliest post-service medical treatment records are dated from 1990, and the Veteran was separated from the active duty in 1981. No diagnosis of degenerative joint disease of the cervical spine was made within one year of the Veteran's military discharge. Thus, the presumption for service connection for chronic diseases does not apply. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). In reaching this decision, the Board has considered the Veteran's arguments in support of her claim. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which she has first-hand knowledge, e.g., an injury during her active military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id. Although the Veteran is competent to report that she injured her cervical spine during her active military service, which resulted in her current cervical spine disorder, the Board must still weigh her lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In making this credibility determination, the Board does not find the Veteran's statements concerning the etiology of her cervical spine disorder to be credible, since her STRs make no reference to a cervical spine injury, and since the record first documents cervical spine problems in 1990, almost ten years after her separation from the active duty. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). It is important to point out that the Board does not find that the Veteran's lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the Veteran's statements are found to be incredible because they are inconsistent with the evidence of record, which fails to show a cervical spine injury during her active military service, which fails to show a cervical spine disorder until almost ten years after her military discharge, and which contains only negative nexus medical opinions. For the reasons set forth above, the Board finds that the Veteran's lay statements that her symptoms have been present since her active military service are not credible. Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required. All other evidence of record, aside from the Veteran's statements in support of this current claim, is unfavorable to the claim for service connection for a cervical spine disorder. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim for service connection for a cervical spine disorder is not warranted. ORDER Service connection for a cervical spine disorder is denied. ____________________________________________ APRIL MADDOX Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs