Citation Nr: 1318671 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-28 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a cervical spine disability (neck disability). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from November 1986 to May 1998, and March 1999 to September 2007. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case for further development in October 2012. As discussed below, the development requested has been completed, and the claim is now appropriate for appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. In correspondence received by the Board in March 2013, the Veteran claimed entitlement to service connection for a bilateral ankle disability and requested an increased rating for his service-connected headaches. The issues of entitlement to service connection for a bilateral ankle disability and to an increased rating for headaches have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran did not incur a cervical spine injury or disease during active service, symptoms of a cervical spine disability were not chronic in service, symptoms of a cervical spine disability have not been continuous since service separation, and the cervical spine disability is not related to active service. 2. Symptoms of cervical spine arthritis did not manifest to a compensable degree within one year of separation. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may 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. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims 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 a veteran 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has a current cervical spine disability that was incurred during active service. Specifically, he avers that he fell on his shoulder in 1991, while in service, and that, during the fall, he also hit his head, which caused the current cervical degenerative changes and disc bulges. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not incur an injury, event, or disease involving the cervical spine during active service, and that the weight of the evidence demonstrates that symptoms of a cervical spine disability were not chronic in service. Service treatment records confirm that the Veteran fell on his left shoulder in early 1991 while diving for cover during a scud missile attack. In January 1992, he reported persistent left shoulder pain, and was diagnosed with mild impingement syndrome. He did not report any neck or cervical spine pain or other cervical spine problems. The February 1999 enlistment examination report is negative for any complaints or diagnoses of cervical spine or neck problems, and physical examination of the neck and spine are marked as "normal." Moreover, the Veteran checked "no" next to "head injury" and "swollen or painful joints" on his February 1999 Report of Medical History. In addition, the June 2007 separation examination report is negative for any complaints or findings of a cervical spine problem. In short, there are no complaints, symptoms, history, findings, diagnoses, or treatment of cervical spine problems during active service. The Board next finds that the weight of the evidence demonstrates that symptoms of a cervical spine disability have not been continuous since separation from active service in September 2007. As noted above, the June 2007 separation examination report is negative for any cervical spine problems. Following service separation in September 2007, the evidence of record does not show any complaints, diagnosis, or treatment for cervical spine symptoms until July 2008, when the Veteran reported headaches that caused tightness in the upper neck area. An MRI study of the cervical spine was conducted and showed concentric bulging of the disc with annular tears involving C3-C4, C5-C6, and C6-C7, without evidence of cervical disc herniation, spinal stenosis, or cord compression. The VA clinician opined that the headaches could be related to the cervical spine bulging discs. The Veteran did not mention any neck injuries during active service or otherwise relate the neck pain to military service in the context of seeking medical treatment in July 2008, which is highly probative evidence against his current claim. The absence of post-service complaints, findings, diagnosis, or treatment for ten months after service separation until July 2008 is one factor that tends to weigh against a finding of continuous symptoms of a cervical spine disability after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Additional evidence showing that the Veteran's cervical spine disability has not been continuous since service separation includes a May 2008 VA general medical examination at which the Veteran did not report any neck or cervical spine problems despite reporting multiple orthopedic issues. Further, he underwent an employment physical examination the same month and did not report any neck or cervical spine problems; examination of neck was also normal. In addition, VA treatment notes from December 2008 indicate the Veteran specifically stated he did not remember having any previous whiplash or other neck injury. These more recent statements are, again, highly probative evidence against his own claim. The Board also finds that the weight of the evidence demonstrates that cervical spine arthritis did not manifest to a compensable degree within one year of service separation. The weight of the evidence demonstrates no arthritis symptoms during the one year period after service, and no diagnosis or findings of arthritis of any severity during the one year post-service presumptive period. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012) (degenerative and traumatic arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the joint involved, and can be assigned a 10 percent evaluation if limitation of motion is noncompensable). In so finding, in February 2013, the Board obtained a VA opinion regarding whether the July 2008 MRI findings represented arthritis. The VA examiner, who also conducted a physical examination in January 2012, reviewed the claims file and opined that the July 2008 MRI findings of bulging discs and annular tears did not represent arthritis, and that the January 2012 x-ray of the cervical spine was the first finding of arthritis. The February 2013 VA opinion is of significant probative value because it is factually accurate, as it appears the VA examiner was informed of the relevant evidence in this case, relied on accurate facts, and gave a fully articulated opinion that is supported by a sound reasoning. Further, the VA examiner's opinion is supported by the medical evidence of record, which includes a negative July 2009 cervical spine x-ray report. Thus, the evidence shows the first assessment of arthritis more than four years after service in January 2012 at the VA examination. For these reasons, the Board finds that arthritis, first diagnosed in 2012, did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for arthritis are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309. With regard to the Veteran's more recent assertions made as part of the current compensation claim that he has had cervical spine symptoms since separation from service in September 2007, the Board finds that, while the Veteran is competent to report the onset of cervical spine symptoms, his recent reports of continuous cervical spine symptoms since service are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the statements of the Veteran as to continuous cervical spine symptoms after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records which are negative for any findings or diagnoses of a cervical spine disability, negative May 2008 VA examination and employment physical examination reports, the lack of any post-service documentation of treatment or diagnosis of a cervical spine disability for ten months after service separation until July 2008 (and even then, treatment was sought for headaches which led to an incidental MRI finding of cervical spine disc bulging and annular tears), the Veteran's failure to relate his cervical spine problems to military service while seeking treatment in July 2008, and his claim for service connection for multiple disabilities in December 2007 with no mention of neck or cervical spine problems. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed a claim for service connection for multiple disorders in December 2007, but did not mention any cervical spine or neck symptoms at that time. This suggests to the Board that there was no pertinent cervical spine disability symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for a cervical spine disability, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain a cervical spine injury in service, or the lack of cervical spine symptomatology at the time he filed the claim, or both. For these reasons, the Board finds that weight of the lay and medical evidence that is of record outweighs the Veteran's more recent contentions regarding in-service chronic cervical spine disability symptoms and post-service cervical spine disability symptoms. The Board further finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed cervical spine disability is not related to his active service. In the February 2013 VA opinion, which weighs against the Veteran's claim, the examiner opined that the Veteran's current cervical spine disability was not a result of or aggravated by military service, to include as a result of the in-service shoulder injury, but rather represented wear-and-tear arthritis that has happened as the Veteran aged. The VA examiner pointed to the first finding of arthritis in 2012, as well as negative service treatment records and a pre-service automobile accident in which the Veteran could have injured his neck. As above, the February 2013 VA opinion is of significant probative value because it is factually accurate, as it appears the VA examiner was informed of the relevant evidence in this case, relied on accurate facts, and gave a fully articulated opinion that is supported by a sound reasoning, citing to specific medical records. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's cervical spine disability and his military service, including no credible evidence of either a relevant in-service disease or injury, chronic symptoms of a cervical spine disability during active service, or continuity of symptomatology of a cervical spine disability following separation. Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a cervical spine disability, and outweighs the Veteran's more recent contentions regarding in-service chronic cervical spine problems and post-service cervical spine problems. For these reasons, service connection for a cervical spine disability must be denied. As the preponderance of the evidence weighs against the Veteran's claim for service connection for a cervical spine disability, the benefit of the doubt doctrine is not applicable, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely August 2008 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The letter also described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, a VA opinion, and the Veteran's statements. A VA opinion was obtained in February 2013 with regard to the question of whether the Veteran's cervical spine disability was related to active service and as to whether arthritis manifested within one year of service separation. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the February 2013 VA opinion obtained in this case is adequate as to the question of whether the Veteran's cervical spine disability was related to active service and whether arthritis manifested within one year of service separation. The opinion was predicated on a thorough physical examination and a full reading of the private and VA medical records in the Veteran's claims file. The VA nexus opinion considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim decided herein has been met. 38 C.F.R. § 3.159(c)(4). The Board also finds that the February 2013 VA opinion satisfies the Board's October 2012 remand directives. Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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). ORDER Service connection for a cervical spine disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs