Citation Nr: 1320821 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 00-11 305 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from March 1981 to January 1985. This appeal to the Board of Veterans' Appeals (Board) arose from a May 1997 rating decision in which the RO, inter alia, disallowed service connection for a neck disability as not well grounded, on the basis that there was no competent evidence reflecting that the Veteran had a current disability of the neck, or that such disability, if present, was related to military service. Within the appeal period, the Veteran submitted a statement in which he identified four private healthcare providers who had treated him for problems associated with his neck. As such, the May 1997 rating decision did not become final. See 38 C.F.R. § 3.156(b) (2012); Muehl v. West, 13 Vet. App. 159 (1999). After receipt of private treatment records, in a January 1999 rating decision, the RO denied service connection for degenerative disc disease (DDD), C5 through C7 (claimed as residuals of neck injury), as not well grounded, on the basis that there was no competent evidence linking the diagnosed disability to service. In September 1999, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in December 1999, and a supplemental SOC (SSOC) was issued in March 2000. In the March 2000 SSOC, the RO noted that the Veteran had been informed of the January 1999 rating decision by letter dated February 9, 1999. The RO pointed out that the normal appeal period with respect to the January 1999 rating decision would have passed on February 9, 2000; however, as additional evidence was received in November 1999, an SSOC was being issued to reflect consideration of that evidence. The RO noted that, in order to perfect an appeal of the January 1999 rating decision, the Veteran would have to file a substantive appeal within 60 days of the March 2000 SSOC. Thereafter, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2000, within the allotted time frame. In March 2001, the Board denied service connection for a neck disability. The Veteran appealed the March 2001 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2003 single-judge Order, the Court determined that VA had failed to satisfy its duty to notify under 38 U.S.C.A. § 5103(a) (which had been enacted on November 9, 2000, during the pendency of the Veteran's appeal). Accordingly, the Court vacated the Board's decision, and remanded the claim to the Board for further proceedings consistent with the Court's Order. The Secretary of VA appealed the Court's decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). In an April 2004 Order, the Federal Circuit vacated the Court's June 2003 Order, and remanded the matter to the Court for further proceedings consistent with the Federal Circuit's decision in Conway v. Principi, 353 F. 3d 1369 (Fed. Cir. 2004) (holding that the Court, in determining whether VA has complied with the notice provisions of 38 U.S.C.A. § 5103(a), is required to take due account of the rule of prejudicial error). In a July 2004 Order, the Court again vacated and remanded the Board's March 2001 decision, noting that VA had failed to satisfy its duty to notify under 38 U.S.C.A. § 5103(a). With regard to prejudicial error, the Court noted that "because the appellant has not had the opportunity to benefit from and react to the notices that the Secretary was and is obligated to provide, any conclusion by the Court that the appellant is not prejudiced would be pure speculation." See July 2004 Order, at 4. Judgment was entered in August 2004. The VA Secretary again appealed the Court's decision to the Federal Circuit. In March 2008-after a stay was lifted, pending the disposition of related cases-the Federal Circuit summarily affirmed the Court's judgment, thereby returning the case to the Board. In February 2009, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, in order to fulfill VA's duty to notify under 38 U.S.C.A. § 5103(a). After completing the requested development, the AMC continued to deny the claim (as reflected in a November 2009 SSOC) and returned this matter to the Board for further appellate consideration. In February 2010, the Board again denied service connection for a neck disability. The Veteran appealed the February 2010 Board decision to the Court. In August 2010, the Court granted a joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. The Board notes that, while the Veteran previously was represented by Disabled American Veterans, in September 2010, the Veteran granted a power-of-attorney in favor of Robert V. Chisholm, a private attorney, with regard to the claim on appeal. The Veteran's current attorney has submitted written argument on his behalf. The Board has recognized the change in representation. In December 2010, the Board remanded the claim on appeal to the RO for further action, to include additional development of the evidence. After taking further action, the RO continued to deny the claim (as reflected in an April 2012 SSOC) and returned this matter to the Board for further appellate consideration. In July 2012, the Veteran's attorney submitted additional medical evidence to the RO, and, in August 2012, the attorney submitted a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran has a current disability of the cervical spine, diagnosed as DDD, and the competent opinion evidence on the question of whether the disability is etiologically related to service is, at least, in relative equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a neck disability, currently diagnosed as DDD of the cervical spine, are met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the Veteran's claim, the Board finds that all notification and development actions needed to fairly adjudicate this matter have been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from 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). In adjudicating a claim for benefits, VA is responsible for determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the governing legal authority, and affording the Veteran the benefit of the doubt, the Board finds that service connection for a neck disability is warranted. Service treatment records reflect that the Veteran sustained injuries in a motor vehicle accident in April 1982. While on duty, he was riding as a passenger in a Government-owned, van-type vehicle that impacted a telephone pole, was thrown against the dashboard and windshield, head first, and subsequently complained of neck pain. X-rays of the cervical spine were interpreted to reveal no evidence of misalignment or recent fracture, and interspaces that appeared to be maintained. Examination revealed tenderness at C4-5. Service examination reports from September 1982, July 1984, and October 1984 are negative for any signs, symptoms, or diagnoses of a neck disorder. The Veteran noted in an October 1984 Report of Medical History that he did not have any swollen or painful joints; arthritis, rheumatism, or bursitis; or recurrent back pain. A December 1984 separation examination report reflects that the Veteran's neck, spine, and upper extremities were all found to be normal. On VA examination in February 1987, the Veteran complained of generalized aching in the neck and occasional numbness in the fingers of the right hand. On examination, the cervical spine was noted to be nontender. He had forward flexion in the cervical spine to 65 degrees, backward extension to 45 degrees, lateral flexion to 30 degrees, and rotation to 30 degrees. X-rays of the cervical spine were interpreted to reveal no soft tissue, joint, or bony abnormality. The clinical impression was cervical strain. Private medical treatment records dated in April 1995 reflect the Veteran's evaluation for complaints of left neck, shoulder, and arm discomfort, including some numbness in the lower arm and hand on the radial aspect. It was noted that that the Veteran was not aware of any injury related to his symptoms, and that he had history a low back injury 10 years ago, when he was in the military, but that it was totally unrelated to his present symptoms. The clinical assessment was questionable neuritis. A May 1995 report from a private neurologist, M.G.D., M.D., reflects that the Veteran was evaluated for complaints of left arm numbness. It was noted that X-rays revealed some degenerative changes at C5 through C7, and that there was a foraminal encroachment at both levels, more on the left than on the right. The Veteran denied any injury to the neck or arm, but reported that he had injured his back years ago. The clinical impression was double crush syndrome involving a left C6 radiculopathy and minimal carpal tunnel syndrome. He had radiating paresthesias, absent biceps and brachial radialis reflexes, mild weakness, and a bit of denervation in the biceps, all supporting the C6 radiculopathy. It was noted that he was 34 years old. In a statement dated in September 1996, the Veteran indicated that he had recently developed "numb spots" in his left arm and sought treatment from a neurologist, who told him that he was developing arthritis in his neck. The Veteran stated that he had suffered no injuries of even a minor nature since service; as a result, he concluded that his present symptoms could only have been caused by the accident in service. Private treatment reports from Highland Hospital show the Veteran underwent physical therapy from May 1998 to December 1998. The reports contain diagnoses of DDD at C6-C7 and mild anterior and posterior spondylosis at C5-C6. Records from R.A.S., M.D., reflect that the Veteran was evaluated for chronic neck ache and episodic arm symptoms between June and October 1999. Dr. S. noted the Veteran's injury in service, stating that he went on to have chronic low level neck ache. The examiner recommended magnetic resonance imaging (MRI) because of the Veteran's previous significant trauma and residual symptoms. The MRI was noted to reveal C5-6 disc spur complex to the left, which narrowed the central canal and foramen. There were similar but less severe findings at C6-7 to the right. The clinical impression was that the Veteran had a history consistent with cervical myeloradiculopathy. A letter from C. B.-C., M.D., dated in November 1999, indicates that she did not examine the Veteran, but that he was evaluated initially by a nurse practitioner and subsequently referred to Dr. S. On VA examination in June 2000, the Veteran's history of in-service injury was noted. The Veteran reported that, following the accident, he complained of tenderness in the neck area, but X-rays were always negative. He indicated that he had done well following service discharge in 1985, until 1996, when he was bending over at work, suddenly raised his head, and noticed some numbness in the left arm. He stated that he was referred to a neurologist, who did a variety of studies which indicated some possible neuropathy. In 1997, he had a recurrence of numbness in his left arm as well as some spotty numbness in portions of his right upper extremity. An MRI was significant for a C5-6 disc spur complex to the left, which now is a central canal and foramina. There were similar but less severe findings at C6-7 to the right. There were no abnormal signals to the spinal cord. The Veteran reported that he had been seen intermittently between 1997 and 1999, but no further diagnostic or therapeutic procedures had been done. With regard to his symptoms, the Veteran reported that he had no pain in his neck, but that he did have weakness, stiffness, fatigability, and lack of endurance. He denied that he was presently under treatment. He stated that he did not have any flare-ups of his neck condition and did not use crutches, a brace, or a cane. There was no history of surgery. The only reported injury was that of the motor vehicle accident in 1982. The Veteran worked as a computer engineer and stated that bending over the computer led to some fatigue in his neck after a period of several hours. He did not mention any disabilities as far as daily activities were concerned. On objective examination, neck flexion was to a full 30 degrees, backward extension was to approximately 20 degrees, lateral flexion was to 40 degrees and rotation was to 50 degrees. The diagnosis was, per MRI, C5-6 disc spur complex to the left with narrowing of the central canal and foramina, similar to the less severe findings at C6-7 on the right. The examiner opined that, based on the fact that there were no abnormalities initially or for the next two years while the Veteran was in the service, and also based on the fact that radiculopathy symptomatology did not surface until 1996, he could not say with any degree of certainty that the Veteran's current cervical spine condition was related to the motor vehicle accident in 1982. However, in rendering his opinion, the examiner made no mention of the February 1987 VA examination report, which, noted above, reflects the Veteran's complaint of generalized aching in the neck and occasional numbness in the fingers of the right hand, and was assessed with cervical strain. Accordingly, and in response to a joint motion for remand filed by the parties to the appeal in August 2010, the Board, in December 2010, remanded the case for a new examination and opinion with respect to etiology. Thereafter, the Veteran underwent another examination in March 2012. After reviewing the claims file, examining the Veteran, and diagnosing DDD, the examiner (a physician's assistant) concluded that it was less likely than not (i.e., less than 50 percent probable) that the Veteran's disability was incurred in, or caused by, service. In support of her opinion, the examiner noted that there was no mention of neck injury, chronic neck condition, or cervical radiculopathy in service; that the Veteran had normal in-service examinations for his neck following the accident in 1982; and that the Veteran's symptoms of radiculopathy did not appear until the 1990's, years after service. The examiner also noted that a report from April 1995 indicated that the Veteran's neck pain and radicular symptoms began 10 days prior. However, as with the June 2000 VA examination, the examiner made no mention of the February 1987 VA examination, wherein the Veteran complained of generalized aching in the neck and occasional numbness in the fingers of the right hand, and was assessed with cervical strain. In July 2012, the Veteran's attorney submitted a June 2012 medical opinion from a physician board-certified by the American Academy of Orthopaedic Surgeons. After interviewing the Veteran, reviewing his claims file, and setting out pertinent historical information-including the assessment of cervical strain on VA examination in February 1987, and the prior opinions offered by VA examiners in June 2000 and May 2012-the physician opined that it was at least as likely as not that the Veteran's progressive cervical symptoms were the direct result of the in-service motor vehicle accident in 1982. In support of his opinion, the physician cited an article from a medical journal relating to the role of torsion in the production of disc degeneration. The physician explained that the Veteran's MRI findings (pertaining to disc/spur complex) were consistent with a severe compressive/torsion injury in service, resulting in permanent damage to the C5-6 and C6-7 disc complexes; that such an injury could result in the onset of a progressive, degenerative process, with radiculopathy manifesting much later; that the Veteran's degenerative changes appeared at an earlier age (in his 30's) than would ordinarily be expected in the absence of significant trauma; and that his degenerative changes were present only at the two levels of the cervical spine which are most injured. The examiner stated, "My opinion is this matter is with a high degree of medical certainty." As outlined above, the record contains conflicting opinions as to whether the current disability of the Veteran's cervical spine can be attributed to service. The June 2012 report from the private orthopedist indicates that it is at least as likely as not that the disability can attributed to service. The reports of the June 2000 and March 2012 VA examinations, on the other hand, indicate either that it is unlikely that the Veteran's disability can be attributed to service, or that such a relationship cannot be determined with any degree of certainty. Under these circumstances, it is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009). In this case, the Board finds the opinions contained in the June 2000 and March 2012 VA examination reports to be of somewhat limited probative value. Although both examiners had access to the Veteran's claims file, neither of them addressed the February 1987 VA examination, wherein the Veteran complained of generalized aching in the neck and occasional numbness in the fingers of the right hand, and was assessed with cervical strain. In addition, the March 2012 opinion was offered by a physician's assistant, rather than a physician. The June 2012 opinion, by contrast, takes note of the finding of cervical strain on VA examination in February 1987. It also takes note of the prior VA opinions; provides substantive reasons as to why the conclusions reached by those examiners may not be medically persuasive; and sets out a supporting rationale for the private examiner's contrary conclusion. Following a thorough review of the evidence, the Board finds that the opinion from the June 2012 private examiner is at least as probative as the opinions of the June 2000 and March 2012 VA examiners. That is to say, the competent opinion evidence on the question of whether the Veteran's current disability is etiologically related to service is, at least, in relative equipoise. When, as here, after consideration of all evidence and material of record in a case for VA benefits, 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 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. In light of the facts noted above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran has a current disability of the cervical spine-currently diagnosed as DDD-that is etiologically related to service; hence, the criteria for service connection are met. ORDER Service connection for a neck disability, currently diagnosed as DDD of the cervical spine, is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs