Citation Nr: 1319302 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 09-20 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from November 1979 to April 1982. This matter came before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Jurisdiction over the Veteran's claims file currently resides with the Boston, Massachusetts RO. In January 2013, the Board remanded the issues of entitlement to service connection for a low back disability, cervical spine disability, and sinusitis. While the appeal was in remand status, the agency of original jurisdiction (AOJ) granted service connection for the low back disability and sinusitis. As such, those issues are no longer in appellate status. The Board observes that there are various documents that have been returned to the AOJ and the Board as undeliverable. Notably, the claims file contains an October 2010 notification of address change submitted by the Veteran's representative. Future mailings should be sent to this address. FINDING OF FACT A cervical spine disability was not manifest in service and degenerative joint disease of the cervical spine was not manifest within one year of discharge; the cervical spine disability is unrelated to service. CONCLUSION OF LAW A cervical spine disability was not incurred in or aggravated by service, and degenerative joint disease of the cervical spine may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 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. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in April 2007 discussed the evidence necessary to support a claim for service connection. The evidence of record was listed and the Veteran was told that VA would assist him in obtaining additional relevant evidence. He was invited to identify or submit evidence supportive of his claim. He was advised of the manner in which VA determines disability ratings and effective dates. An August 2007 letter provided similar information. In November 2011 the Veteran was provided with the status of his claim. The Board finds that the content of the above notices fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect to VA's duty to assist, the Board notes that identified treatment records have been associated with the claims file. The Veteran was afforded a VA examination. The Board finds that the examination was adequate in that the examining physician reviewed the record, interviewed the Veteran, and performed appropriate examinations prior to providing her conclusions. The examination and addendum reports of record are thorough and consistent with contemporaneous treatment records, and adequately respond to the questions posed in this appeal. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Service treatment records indicate that in March 1981 the Veteran was seen after jumping into a fox hole and hitting his head against his helmet. He denied loss of consciousness. He had a laceration in the occipital scalp that was sutured. The sutures were removed in April 1981, and the Veteran was returned to duty. In September 1981 the Veteran complained of right shoulder pain due to a football accident. The assessment was trapezius spasm. On separation examination in March 1982, the Veteran denied recurrent back pain, arthritis, bone or joint deformity, and lameness. His spine was clinically normal on physical examination. Nothing was listed in the summary of defects and diagnoses, and the Veteran was noted to be qualified for separation. An October 1991 VA treatment record indicates the Veteran's report of low back pain. The Veteran was hospitalized in November and December 1991 for a 21-day substance abuse treatment program. During that stay, he complained of low back pain and skin problems, and was seen by a physician's assistant for those complaints. In December 1997 the Veteran reported upper back strain since starting a new job five days previously. Cervical spine degenerative joint disease is noted in a July 1998 VA treatment record. The Veteran indicated that he had started a new job two to three weeks previously. He complained of some numbness and tingling in the bilateral arms and pain with turning his head. The Veteran underwent a CT scan for assessment of bilateral arm numbness, to rule out cervical radiculopathy. The assessment was moderate degenerative bony changes. A November 1998 record indicates an assessment of cervical degenerative joint disease and questionable cervical radiculopathy. Testing was proposed. An April 2000 neurology note indicates that the Veteran was first seen in November 1998 for complaints of neck and arm pain. The provider noted that the Veteran was supposed to be seen two months later but did not present again until December 1999. She further noted that the Veteran had failed to appear for various appointments. The Veteran reported severe neck and low back pain since a motor vehicle accident in 1983 or 1984. The assessment was history of motor vehicle accident with alleged neck and low back injury, cervical degenerative joint disease and moderate central canal stenosis per CT, chronic neck pain, and questionable cervical radiculopathy. A December 2006 VA problem oriented assessment plan includes a notation of low back pain and diffuse joint and muscle pain. In February 2007 the Veteran reported a 15 to 20 year history of localized neck pain, grinding, and stiffness. The impression was cervical spondylosis without specific radiculopathy or myelopathy. In his April 2007 claim, the Veteran indicated that his neck disability began in 1980. In an August 2007 statement, the Veteran related that he had fallen in May 1980 on the steel stairs in the barracks, and had pain radiating from his low back. He noted that his back had continued to bother him since service. A September 2007 VA record indicates a history of cervical spondylosis without specific radiculopathy. The Veteran underwent a VA examination in January 2012. The examiner reviewed the Veteran's history and indicated that she had also reviewed marked documents in the claims file. She concluded that the Veteran's cervical spine disc disease was less than likely as not related to the fall in service. She reasoned that the Veteran's exit physical was normal and he denied any neck complaints. She pointed out that the Veteran was in a motor vehicle accident after service and that it could have caused the claimed disability. In January 2013, the same VA examiner reviewed the claims file and again concluded that the cervical spine disability was less likely as not related to service. She reasoned that the exit physical examination was normal and the Veteran denied any neck complaints. She noted that the Veteran was in a motor vehicle accident following service that could have caused the cervical spine disability. Having carefully reviewed the record, the Board concludes that service connection is not warranted for a cervical spine disability. In this case the Board notes that there is a remarkable lack of credible evidence of pathology or treatment in proximity to service or within years of separation. The earliest post-service treatment for any complaints referable to the Veteran's cervical spine dates to 1998. At that time, the Veteran reported that he had recently started a new job. In April 2000 the Veteran dated onset of his neck complaints to 1983 or 1984, following a motor vehicle accident. In February 2007, he reported a 15 to 20 year history of localized neck pain; such would place onset of neck complaints in approximately 1987, well after service discharge. Finally, the Veteran stated in his April 2007 claim that his neck disability began in 1980. While the Veteran has identified differing dates of onset while pursuing treatment, his reports consistently indicated onset years following his separation from service, and are in conflict with his report to VA that he has experienced neck symptoms since service, in 1980. The Board finds statements as to history made directly to health care providers during the course of treatment to be inherently more credible than statements made in support of a claim for benefits. In short, the most credible evidence regarding the most likely date of onset of the claimed cervical spine disability consists of treatment records reflecting onset of symptomatology years after service discharge. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran has argued to VA that he has experienced symptoms related to his neck since service. However as discussed in detail above, the Board finds that his statements to the contrary, in the pursuit of treatment years following his separation from service, prove that his current statements as to onset are unreliable and not credible. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record contains diagnoses related to the Veteran's cervical spine, it does not contain reliable evidence which relates this claimed disability to any injury or disease in service. The Board finds that the negative record at service discharge and for years following service is more probative than the Veteran's more recent statements. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board additionally notes that the VA examiner concluded that the current cervical spine disability was not related to service. In essence, she provided a reasoned opinion, based on complete review of the record, interview, and examination. In assigning high probative value to this opinion, the Board notes that the examiner had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. The Board thus finds the VA examiner's opinions to be of greater probative value than the Veteran's unsupported statements. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Absent reliable lay or medical evidence relating these claimed disabilities to service, and in consideration of the VA opinion discussed above, the Board concludes that the claims of entitlement to service connection for degenerative disc disease of the cervical spine must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a cervical spine disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs