Citation Nr: 1322531 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-25 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for cervical spondylosis without myelopathy, claimed as a cervical spine headaches condition. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to December 1980, and from May 1986 to November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In November 2012, the Board remanded the claim for additional development. FINDING OF FACT The evidence of record does not show that the Veteran has a cervical spine disability that is related to active duty service. CONCLUSION OF LAW A cervical spine disability was not incurred in, or otherwise due to, the Veteran's active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran asserts that he is entitled to service connection for cervical spondylosis without myelopathy, claimed as a cervical spine headaches condition. He argues that he had to do a great deal of heavy lifting during service, specifically, lifting parts of bridges, and that he has had cervical spine pain since his service. 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 also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). Service connection may also be granted for arthritis, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. The Veteran's service treatment reports show that on two occasions in July 1988, the Veteran sought treatment for complaints of a stiff neck, vomiting, and diarrhea, with pain radiating to all parts of his body, following head trauma. The assessments noted myositis, and gastroenteritis. The Veteran's separation examination report, dated in October 1988, shows that his head, spine, and neurological system, were clinically evaluated as normal. In an associated "report of medical history," the Veteran denied having had frequent or severe headaches, or recurrent back pain. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 1990 and 2013. The relevant evidence is summarized as follows: A private treatment report from the Friedman Chiropractic Center (FCC), dated in August 2000, notes that the Veteran was in a motor vehicle accident in June 2000, in which his head and upper torso extended backwards, followed by an extreme flexion of those regions. He complained of symptoms that included headaches, bilateral neck pain, middle and low back pain, palpable contractions of the cervical, thoracic, and lumbar spine, and a restricted range of motion of the cervical and dorsolumbar spine. The report also notes a history of an MVA in 1992 in which he sustained injuries to the cervical and thoracic spine. An associated magnetic resonance imaging (MRI) study, dated in July 2000, contains an impression noting anterior disc herniation at C3-C4, C4-C5, C5-C6, and C6-C7, posterior disc herniation at C4-C5 and C5-C6, straightening of the spine possibly due to muscle spasm, and dessication of the nucleus pulposus at C3-C4, C4-C5, and C5-C6. VA progress notes, dated between 2001 and 2013, show that in August 2003, an X-ray of the cervical spine revealed slight loss of height of C5-6 disc space, and mild degenerative changes in the uncovertebral joints at C5-6. In October 2003, the Veteran complained of headaches "for the last couple of years." Another October 2003 report notes complaints of a two-to-three week history of headaches. An April 2007 X-ray report for the cervical spine contains an impression noting cervical spondylosis, intervertebral osteochondrosis at C5-C6, and paravertebral spasm. Beginning in 2009, this evidence shows that multiple "problem lists" noted spondylosis of the cervical spine, and that the Veteran complained of neck pain on a number of occasions. A decision of the Social Security Administration (SSA), dated in November 2009, shows that the SSA determined that the Veteran was disabled as of March 2007, due to a severe cervical spine disorder, and a severe mental disorder. As an initial matter, the Board finds that the Veteran is not a credible historian. The Veteran has asserted that he has had cervical spine pain due to heavy lifting during service, and that he has had cervical spine pain since his service; he has not asserted that he sustained cervical spine trauma during service. See e.g., Veteran's letter, received in June 2007; Veteran's appeal (VA Form 9), received in July 2009. However, apart from neck pain treated in July 1988 that was associated with myositis and gastroenteritis, he was not treated for neck/cervical spine pain during service. His October 1988 separation examination report shows that his head, spine, and neurological system, were clinically evaluated as normal. In an associated "report of medical history," the Veteran denied having had frequent or severe headaches, or recurrent back pain. He received significant cervical spine injuries following an MVA in August 2000, with another MVA causing cervical spine injury in 1992 noted by history. In a VA progress note, dated in October 2003, the Veteran complained of headaches "for the last couple of years." In a VA progress note, dated in July 2010, the Veteran reported that he had had cervical spine pain for many years due to a fall with loss of consciousness, and that he had been involved in an MVA. In a March 2011 VA progress note, the Veteran reported a history of neck pain for eight to ten years. The aforementioned evidence is inconsistent with his claim of ongoing symptoms since his service. Finally, the Veteran is shown to have paranoid schizophrenia, for which service connection is in effect, evaluated as 100 percent disabling. This is evidence of impaired perception, reasoning and judgment. The Board therefore finds that he is not a credible historian. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). The Board further finds that the claim must be denied. Although there were two complaints of neck pain in July 1988, these were associated with myositis and gastroenteritis. A cervical spine condition, and headaches, were not shown upon separation from service, nor is the Veteran shown to have complained of cervical spine or headache symptoms upon separation from service. Therefore, the Veteran is not shown to have a cervical spine disorder during service, and thus, a chronic disease is not shown. See 38 C.F.R. § 3.309(b). Rather, the earliest post-service medical evidence of any relevant findings is found in the August 2000 FCC report. This is about 12 years after separation from active duty service, and the report states that the Veteran was in an MVA in June 2000, with a history of a second MVA in 1992; both MVAs were noted to have caused cervical spine injuries. The August 2000 FCC findings are dated shortly after the Veteran was involved in an MVA in which he sustained multiple-level cervical spine disc herniations. There is no competent opinion in support of the claim. Finally, there is no competent evidence to show that that arthritis manifested to a compensable degree within one year of service. 38 C.F.R. §§ 3.307, 3.309. The Board therefore finds that the preponderance of the evidence is against the claim, and that the claim must be denied. With regard to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring complex medical knowledge. Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The issue on appeal is based on the contention that a cervical spine disability (claimed as cervical spine headaches) was caused by service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether or not the Veteran has a cervical spine disability that is related to service, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The medical records have been discussed. To the extent that a layperson is competent to report headaches, the Veteran has been found not to be credible. The Veteran is not shown to have a cervical spine disorder during service, he has a post-service history of cervical spine trauma, and the earliest post-service medical evidence of a cervical spine disorder is dated 12 years after separation from service. Given the foregoing, the Board finds that the medical evidence outweighs the Veteran's contentions to the effect that a cervical spine disability was caused by service. The Board finds that the preponderance of the evidence is against the claim for service connection, and that the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Duties to Notify and Assist The Board finds that the duties to notify have been fulfilled by information provided to the Veteran in a letter from the RO dated in May 2007. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims, and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service medical reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records, and SSA records. The Veteran has not been afforded an examination, and an etiological opinion has not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifest during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. With regard to the third McLendon criterion, the earliest medical evidence of the claimed condition is dated no earlier than 2000. The Veteran has been found not to be credible, there is evidence of a post-service history of two MVAs with associated cervical spine injuries, and there is no competent evidence to show that the claimed condition is related to service, which ended in 1988. Therefore, an examination and an etiological opinion need not be obtained. McLendon; see also 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Veteran and his representative have not argued that any error or deficiency in the accomplishment of the duty to notify has prejudiced him in the adjudication of his appeal. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination). In view of the above, the Board finds that the notice requirements pertinent to the issue on appeal have been met. In November 2012, the Board remanded this claim. The Board directed that the RO/AMC attempt to secure hospital records from September 1988, during which the Veteran alleged that he was treated for mental health concerns at the 97th General Hospital in Frankfurt, Germany. In December 2012, the AMC sent the National Personnel Records Center a request for these records, however, there is no record of a response. In any event, as this request was made in association with a claim for service connection for a disability that was granted, and which is not on appeal, no further development is warranted. See 38 C.F.R. § 3.159(d) (2012). The Board also directed that the RO/AMC contact the Veteran and his representative and ask them to specify all private and VA medical care providers who treated him for his cervical spine disorder, and whose records are not found within the claims file. The Board stated that of particular interest were any treatment and evaluation records from the Ponce VA clinic or the San Juan VAMC, from September 2007 until the present. In December 2012, the AMC sent the Veteran a duty-to-assist letter that was in compliance with the Board's directions. The AMC subsequently obtained over 800 pages of treatment reports from the Ponce VA clinic and the San Juan VAMC. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In summary, the Board finds that the available medical evidence is sufficient for an adequate determination of the claims on appeal. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims does not cause any prejudice to the Veteran. ORDER The appeal is denied. ____________________________________________ JONATHAN A. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs