Citation Nr: 1320570 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 10-01 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a neck disability (claimed as a neck injury). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issues of (1) entitlement to compensation under 38 U.S.C.A. § 1151 for a back disorder has been raised by the Veteran in a September 2011 informal claim and (2) entitlement to compensation under 38 U.S.C.A. § 1151 for a neck disorder has been raised by the Veteran's representative in a June 2013 informal hearing presentation. In this regard, the issue of service connection for a neck disability on a direct basis and under 38 U.S.C.A. § 1151 (as a result of VA negligence) can be adjudicated separately, therefore, as the RO has not had the opportunity to address this new theory of causation, the Board see no prejudice in proceeding with the issue of service connection for a neck disability on a direct basis at this time. These new issues 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, if needed. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The Veteran did not sustain an injury, disease, or event manifesting in a neck disorder during active service. 3. The Veteran's current neck disorder, to include cervical radiculopathy, cervicalgia, cervical spondylosis, and cervical degenerative disc disease, is not related to service. CONCLUSION OF LAW The criteria for service connection for a neck disorder on a direct basis have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service. It may be granting by affirmatively showing inception or aggravation during service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for Veterans Claims (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). Service connection can also be established through application of statutory presumptions. Diseases subject to presumptive service connection are shown at 38 C.F.R. § 3.309. Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the fact of chronicity in service (or during the presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. When the fact of chronicity in service (or during the presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the evidence does not show the Veteran has ever been diagnosed with a disease listed as a "chronic disease" under 38 C.F.R. § 3.309(a) for his claim of service connection for a neck disorder, thus 38 C.F.R. § 3.303(b) does not apply in this case. 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). In making all determinations, the Board must consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed, Cir. 2007). 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). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that service connection is warranted for a neck disorder due to an in-service injury at Fort Polk. At the outset, the Board finds the evidentiary record shows the Veteran has a current neck disorder. A February 2009 Social Security Administration (SSA) evaluation report listed a diagnosis of cervical radiculopathy and VA outpatient treatment records noted the following neck diagnoses: cervical degenerative disc disease (April 2004); neck pain with likely C8 radiculopathy, cervical spondylosis with left C8 radiculopathy, and suspect cervical myelopathy (March 2009); cervicalgia with diminished range of motion (May 2009 and August 2009); and cervical radiculopathy with a significant degenerative disc disease under much better control (March 2010). In addition, March 2009 VA outpatient magnetic resonance imaging (MRI) test and x-ray results of the cervical spine revealed multilevel bilateral foraminal stenosis and encroachment with straightening of the cervical lordosis and disc space narrowing and degenerative change. With regard to an in-service incurrence or aggravation of a disease or injury, the Veteran contends in an April 2009 statement, via a VA Form 21-4138, that a neck injury occurred at Fort Polk during Advanced Individual Training (AIT). In an August 2009 statement, he explained that his neck was checked out about 1989 and was told it was from an old injury, he has never been in an accident or hurt his neck other than at Fort Polk for Republic of Vietnam (RVN) training, and he also re- hurt the neck in Korea while playing football on a Sunday. Review of the Veteran's service personnel records affirm the Veteran was stationed at Fort Polk in 1968 and served in Korea from June 1968 to August 1969. Service treatment records are silent as to any complaints, treatment, and diagnoses of a neck disorder. At the time of entry and separation from service, the January 1968 and June 1969 examination reports marked the Veteran's spine and other musculoskeletal system as normal. The Veteran also did not report any complaints or injury regarding the neck on the January 1968 and June 1969 reports of medical history. The Board notes that a January 2006 response to a Personal Information Exchange System (PIES) request indicates that the complete service treatment records were obtained and associated with the claims file. With regard to a nexus between the claimed in-service neck injury and the current neck disorder, the Veteran reported in a January 2010 substantive appeal, via a VA Form 9, that the neck disorder started in service and keeps getting worse. The Board acknowledges that the Veteran is competent to report readily observable features or symptoms of an injury. See Layno, 6 Vet. App. at 469. Nonetheless, the Veteran's assertions of an in-service neck injury and a link between such injury and the current neck disorder are not credible. The Veteran's more recently-reported history of a neck injury in service and continued symptoms since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that he suffered a neck injury in service, in the more contemporaneous medical history he gave at the service separation examination, he denied any history or complaints of a neck injury or disorder, providing factual evidence against his own claim. Specifically, the service separation examination report reflects the Veteran was examined and his spine and other musculoskeletal system, to include the neck, was found to be clinically normal. His in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden, 125 F.3d at 1481 (upholding a Board decision giving higher probative value to a contemporaneous letter a veteran wrote during treatment than to his subsequent assertion years later). More importantly, the post-service records provides particularly negative evidence against his claim. As noted above, the Veteran served on active duty from January 1968 to August 1969. The Veteran filed his first VA disability compensation claims for service connection in November 2005. At that time, he cited three problems, and only three problems, related to service: (1) bilateral hearing loss; (2) tinnitus; and (3) posttraumatic stress disorder (PTSD). The Board finds it factual highly unlikely that if the Veteran were have problems with his neck since at least 1969 (more than 30 years) as he now appears to contend, he would not have filed this claim in 2005 with the above, if not much earlier. Although an April 2004 VA outpatient treatment record lists the diagnosis of cervical degenerative disc disease, the Veteran reported the neck pain as manageable and did not require any further pain management at that time. Moreover, the Veteran did not claim service connection for a neck disorder or make any mention of any neck symptomatology related to service until the current claim on appeal in April 2009. The Veteran did not claim that symptoms of his disorder began in (or soon after) service until he filed his current VA disability compensation claim. Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories and previous statements made for treatment purposes. See Pond v. West, 12 Vet. App. 341 (1999) (holding that although the Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). During the recent VA compensation claim, the Veteran reported the onset of symptoms to different times. Specifically, he reported in April 2009 and August 2009 statements the date of onset of symptoms began during service and at a May 2009 VA outpatient treatment session complained of neck pain which first began to both him his 20s, which dates back to 1968 during service, and continued as a vague non-specific ache ever since. Nevertheless, during VA outpatient treatment sessions, the Veteran reported a more recent history of neck pain: In August 2009, the Veteran reported a 20 year history of neck pain, which dates back to 1989 and approximately 20 years after service. In March 2010, the VA physician noted treating the Veteran's severe neck pain since April 2009, which is approximately 40 years after service. These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of an in-service neck injury and a link between service and the current neck disorder. See Madden, 125 F.3d at 1481 (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding the Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). Furthermore, the Board notes that review of the VA outpatient treatment records and SSA records are silent as to any indication that the Veteran's current neck disorder is related to service. In fact, the May 2009 VA outpatient treatment record documents that at the time the Veteran reported the neck began to bother him during his 20s, he was working in miscellaneous jobs and there was no trauma to the neck to his awareness. As a result, the Board finds the weight of the evidentiary record shows the Veteran did not sustain an injury, disease, or event manifesting in a neck disorder during active service nor is the current neck disorder related to service. For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim for service connection for a neck disorder, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a June 2009 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. 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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the June 2009 letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, SSA records, and statements from the Veteran. The Veteran was not afforded a VA examination of any of his claimed disability, but none is required. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence that the Veteran's claimed disability is related to an in-service injury is his own conclusory generalized lay statements, which are unsupported by review of the service treatment records and even speculative medical evidence. The Veteran own prior statements do not support this claim. Accordingly, the Board finds that referral for a VA medical examination is not warranted. Significantly, neither the Veteran nor his representative has 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 the Veteran 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). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Service connection for a neck disorder is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs