Citation Nr: 1324084 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 07-12 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a cervical spine disorder, to include as due to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Kordich, Senior Counsel INTRODUCTION The Veteran served on active duty from September 1969 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the benefit sought on appeal. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in February 2010. A transcript of this hearing has been associated with the Veteran's VA claims folder. This matter was previously before the Board and was remanded in February 2011 and September 2012. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT A cervical spine disorder was not present in service and did not originate in service; arthritis of the cervical spine was not manifested in the first post-service year; and the current cervical spine disorder was not caused or permanently worsened by the service-connected PTSD. CONCLUSION OF LAW A cervical spine disorder was not incurred in or aggravated in active service and is not proximately due to, the result of, or aggravated by service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). Notice provided in support of a service connection claim must inform a claimant that if a claim is granted, VA will assign the service-connected disability a rating and an effective date. Id. at 486. In this case, the RO provided the Veteran VCAA notice on the claim decided herein by a letter dated in February 2005. With regard to content, the letter reflects compliance with the pertinent regulatory provisions and case law noted above, except with respect to an initial rating or effective date. Therein, the RO acknowledged the Veteran's claim, notified him of the evidence needed to substantiate the claim, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was developing his claim pursuant to that duty. As well, it identified the evidence it had received in support of the Veteran's claim and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identified the source(s) thereof. The RO also noted that, ultimately, it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. Although the notification to the Veteran did not include the criteria for assigning disability ratings or effective dates, see Dingess, supra, because the Board will deny the Veteran's claim of service connection for a cervical spine disorder, this deficiency is harmless. Consequently, a remand to provide notice as to how initial ratings and effective dates are assigned is not necessary. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Notice under the VCAA must be provided to a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). In this case, the RO sent the notice letter timely, before the RO initially decided the Veteran's claim. As already explained, the notice defect as to the assignment of an initial rating and effective date is harmless. Duty to Assist VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The RO made reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). Specifically, the RO secured and associated with the claims file all evidence the Veteran identified as being pertinent to his appeal, including service treatment records and post-service treatment records. VA examinations were conducted in March 2006 (with an addendum in November 2006), March 2011 (with an addendum in August 2011) and October 2012. VA medical opinions were also obtained in February 2013 and May 2013. The VA examinations and opinions provided the findings and etiology opinions requested by the Board and necessary to adjudicate this appeal. In reviewing the examination reports, the Board finds that they are adequate for the purpose of adjudicating this appeal. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the 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 Veteran's claims folder 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). Service Connection Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) 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) 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternate method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (2012) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). However, service connection on the basis of continuity of symptomatology is only possible if a claimed disability is among the chronic conditions listed in 38 C.F.R. § 3.309(a), see Walker, supra. In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ([T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). The Board notes that the regulation pertaining to secondary service connection was amended, effective October 10, 2006. The previous version of 38 C.F.R. § 3.310 is, however, potentially more favorable to the Veteran, and will be applied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). Background The Veteran seeks service connection for a cervical spine disorder. He contends that he developed a cervical spine disorder during service, or, in the alternative, that his cervical spine disorder was aggravated by his service connected PTSD. Service treatment records show that in June 1970, the Veteran was seen for complaints of intermittent neck pain since he injured it the previous summer prior to service. The Veteran stated that he went to bed the night before and awoke with pain in the neck, which had spread to the upper arm and back. The Veteran denied any recent trauma to the neck. Movement caused shooting pain to the shoulder, and muscle spasm. A spasm of the trapezius was noted. The impression was rule out "cervical (illegible)". X-rays were within normal limits. The Veteran was seen two days later and was much improved and sent back to duty. The Veteran's file contains two examinations noted as Medical Examinations for Expiration of Term of Service (ETS), one in February 1972 and one in May 1977. The February 1972 examination noted clinical evaluation of the spine, other musculoskeletal and upper extremities was normal. The May 1977 examination did not note any abnormal clinical evaluation of the spine, other musculoskeletal or upper extremities. A private X-ray report from Krohn Internal Medicine Associates dated in February 2000 show diagnoses of levorotoscoliosis of the lumbar spine and mild to moderate degenerative disc disease seen throughout the mid to lower thoracic spine. VA treatment records dated in May 2002 note a history of low back discomfort, and record the Veteran's report that was told he had degenerative disc disease. A February 2005 statement from a physician with the Lufkin VA outpatient treatment clinic indicated that the Veteran's current neck condition was more likely than not related to the complaints in military service of neck spasm in June 1970. A March 2006 VA X-ray report showed degenerative changes of the cervical spine, which was interpreted as consistent with degenerative arthritis. At his February 2010 Travel Board hearing, the Veteran testified that he had experienced neck pain since active duty which had been treated with different pain pills, heat pads, and ointments. The Veteran could not remember the circumstances of the injury to his neck in service but stated that he did not injure his neck after separation from service. At a March 2011 VA examination, the examiner noted that the Veteran did not describe a history of an injury to his neck. The Veteran described some on and off tightness in his neck. X-rays of the cervical spine showed normal alignment with mild narrowing of the C6-7 disc space. There was no evidence of neural foraminal encroachment. The impression was mild degenerative disc disease. The examiner concluded that this represented age acquired changes in the neck, and was not associated with military service. An August 2011 addendum to the March 2011 VA examination report noted that the claims file and all available records had been reviewed. The examiner noted that the Veteran had a one-time complaint in June 1970 of neck pain with trapezius spasms, and from the examiner's review of the service treatment records he believed the records showed a cervical spine sprain. The examiner noted that X-rays in service were normal, and that the Veteran was seen two days later and was much improved and was sent back to duty; the examiner noted no other entries in the service medical record. He noted that the discharge history and physical dated in February 1972 was negative for complaints regarding the cervical spine, and showed a normal examination. The examiner noted that after the initial complaint in 1970, the Veteran was in service for another seven years with no further complaints regarding the cervical spine. The examiner again noted the X-ray results and indicated the mild degenerative disc disease was consistent with the Veteran's age of 63, and represented age acquired changes in the cervical spine, and was not service connected. An October 2012 VA examination resulted in a diagnosis of degenerative disc disease. After reviewing the Veteran's medical records, the examiner opined that the Veteran had no injury to the cervical spine in service and there was no evidence of a chronic ongoing condition associated with the military service. The examiner stated that the current mild degenerative changes of the cervical spine were consistent with his age, and that there was no service connection for the cervical spine. Because the October 2012 examiner did not disregard the Veteran's reported history of pre-service neck problems per the September 2012 Board remand instructions, an additional medical opinion was requested. A VA medical opinion dated in February 2013 indicated that the cervical spine disorder was less likely than not incurred in or caused by the claimed in-service event or injury. The examiner provided the following rationale: Discharge history and physical dated in February 1972 was negative for complaints regarding the cervical spine and the Veteran had a normal examination. The Veteran noted that he did not recall any history of an injury to the neck while in service. The Veteran was in service for another seven years with no further complaints regarding the cervical spine and there were no private treatment records and the only previous treatment had been for Compensation and Pension examinations. There was no evidence of a chronic ongoing condition associated with the military service and there was no evidence of aggravation beyond normal for age and job history. The Veteran had mild narrowing of the C6-7 disc space and small anterior osteophytes at C4-5, C5-6 and C6-7. There was no evidence of neural forminal encroachment and the impression was mild degenerative disc disease which was consistent with the age of 63. The examiner noted that these were all age acquired changes in the cervical spine. An additional medical opinion was requested concerning whether it was at least as likely as not that any current cervical spine disability (diagnosed as degenerative disc disease on the VA examination dated in October 2012) was caused or aggravated by the Veteran's service-connected PTSD. VA medical opinion dated in May 2013 stated that the Veteran's claimed cervical spine condition, currently diagnosed as mild degenerative disc disease of the cervical spine, stable, was less likely than not proximately due to or the result of, or aggravated by his service connected condition of PTSD. The examiner stated that there is no scientifically based medical literature associating PTSD and degenerative disc disease of the cervical spine. Analysis The Board initially notes that, inasmuch as the service entrance examination is silent for any reference to a cervical problem, the presumption of soundness applies to this case. See 38 U.S.C.A. § 1111. Turning first to service connection on a primary basis, although the Veteran was treated on one occasion in service for neck complaints which were attributed to an apparent cervical sprain, X-ray studies at the time were negative for any abnormalities, his symptoms were greatly improved within a matter of days, and the service treatment records for the next 7 years were entirely silent for any reference to further neck problems. Nor were any pertinent complaints mentioned during his service discharge examination, and orthopedic examination at the time was negative for any identified abnormalities. In short, the service treatment records do not reference cervical arthritis, or any neck problems following the June 1970 entries. Moreover, there is no post-service evidence of neck problems until decades after service. The post-service treatment records currently show the Veteran has cervical problems including arthritis. The evidence in support of the claim consists of the opinion of the February 2005 VA treating physician, who concluded, without rationale, that the Veteran's current neck condition was related to the neck spasms noted in June 1970. The evidence against the claim consists of the opinions of the March 2011 and February 2013 examiners (including addendum opinions). Both examiners concluded that the Veteran's cervical spine disorder represented an age-related condition which was not associated with service. The March 2011 examiner based his opinion on the lack of any reference to further neck problems in service after June 1970, and his review of X-ray studies showing the current state of the degenerative changes in the cervical spine. The February 2013 physician relied on the Veteran's inability to recall a precipitating injury to the neck in service, the lack of any reference to neck problems after June 1970, and his review of the current X-ray studies which, in his opinion, were consistent with changes expected in a person of the Veteran's age. The Board notes that while the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Court held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). But, the Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. 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-Yoyens 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). However, a medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, when evaluating the ultimate merits of this claim, the Board ascribes the greatest probative value to the medical opinions provided by the March 2011 and February 2013 VA physicians who reviewed the Veteran's medical records and provided a clear rationale for their conclusions. The Board finds that their rationales are supported by the service treatment records and post-service records. Although the February 2005 VA physician concluded that the Veteran's current neck condition was related to the neck spasm in June 1970, he did not further elaborate on his conclusion. He did not acknowledge the absence of further neck complaints for seven years after the referenced neck spasm, or the absence of treatment for neck problems until decades after service. The March 2011 and February 2013 VA physicians noted that further examinations in service were negative for complaints regarding the cervical spine, and that the Veteran had normal orthopedic examinations. In addition, the Veteran did not recall any history of an injury to the neck and the Veteran was in service for another seven years with no further complaints regarding the cervical spine. Both examiners found that the current X-ray studies were consistent with a non-service origin for the Veteran's cervical spine disorder. The Board notes that the Veteran contends that he has experienced cervical spine problems continuously since service. The Board finds his testimony is undermined by the absence of any reference to neck complaints in the post-service record until decades after service. In the Board's opinion, from the description of the neck discomfort mentioned by the Veteran, the Board finds it unlikely he would simply not seek treatment for decades. The Board finds his account of continuity to lack credibility. In any event, the Board points out that although arthritis is a "chronic" disability for which 38 C.F.R. § 3.303(b) allows the possibility of service connection through the establishment of continuity of symptoms, a diagnosis of arthritis was not established in service, and no opinion on file even remotely suggests that arthritis was present in service or until decades after service. Consequently, the Board finds that even were the Veteran's account of symptoms since service credible, they would not provide a basis to establish service connection. The Board notes that in some circumstances, a Veteran is competent to offer a lay opinion as to etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Under the facts of this case, the Board finds that a layperson such as the Veteran is not competent to link the cervical spine disorder to service. In this regard, the Board points out that the cervical spine disability at issue in this case involves processes which are not observable. Although the Veteran may feel pain, he clearly could not observe the degenerative process in his neck, and thus know when the processes began. Lacking the ability to observe the current underlying pathologic process in his cervical spine, he lacks the competence to identify the origin of the process, including any which may have occurred following service. In any event, even if the Veteran were competent to offer an opinion as to etiology, the probative value of his opinion is outweighed by those of the VA examiners, each of whom clearly have more education, training, and experience than the Veteran in evaluating medical disorders and their etiology. In sum, the Board finds that the preponderance of the evidence shows that the Veteran's current cervical spine disorder did not originate in service or until decades thereafter, and is not otherwise etiologically related to service. Turning to service connection on a secondary basis, the only medical opinion on file addressing the relationship of the cervical spine disorder to service-connected disability is against the claim. The May 2013 VA examiner concluded that the Veteran's PTSD neither caused nor aggravated the cervical spine disorder, relying on his review of the scientific literature which does not support the presence of such a link. Significantly, neither the Veteran nor his representative has submitted or identified any medical opinion that actually supports his claim as to the association between the Veteran's current cervical spine disorder and his service connected PTSD. The Board again notes that while the Veteran may be competent to report his neck symptoms he is not competent under the facts of this case to offer an opinion as to etiology, including whether his PTSD caused or aggravated the cervical spine disorder. In short, then, the evidence as a whole shows that the Veteran's cervical spine disorder was not incurred in active service and is not proximately due to, the result of, or aggravated by the service-connected PTSD. Insofar as the Veteran has argued continuity of symptomatology since military service by stating that his cervical spine disability began in service, the Board finds that the Veteran is simply not credible in that assertion. As noted above, the Board recognizes that the Veteran is competent to state medical history and to relate his symptomatology. With regard to credibility however, the Veteran was treated once in service for an apparent cervical strain in June 1970 (with one follow-up visit) and spent seven more years in service without complaint or treatment. His physical dated in February 1972 was negative for complaints or findings regarding the cervical spine and the Veteran had a normal examination on separation in May 1977. After service, the first reference to the cervical spine comes in a February 2005 statement from a VA physician approximately 28 years after separation from service. Consequently, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for cervical spine disorder, to include as due to service-connected PTSD. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable and the Veteran's claim must be denied. ORDER Entitlement to service connection for a cervical spine disorder, to include as due to service-connected PTSD is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs