Citation Nr: 1326748 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-42 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1967 to September 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This case was previously before the Board in April 2013, at which time the claim was remanded to the RO via the Appeals Management Center (AMC) for further evidentiary development. There has been substantial compliance with the mandates of the remand for the claim decided herein and the Board will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). Additional evidence was associated with the record in April 2013, but has not been considered in the most recent supplemental statement of the case (SSOC). The Veteran's representative essentially argues that the claim must be remanded so that the evidence can be reviewed by the RO/AMC. The only evidence pertinent to the neck claim is a copy of the February 2011 radiology report which was included in the February 2011 VA examination report, both of which were considered in an April 2011 SSOC. A remand is not necessary. See 38 C.F.R. §§ 19.37, 20.1304 (2012). The issue of service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's neck disability is etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for a neck disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this matter, substantially compliant notice was sent to the Veteran in September 2009. After the notice was provided, the Veteran was afforded the opportunity to submit additional evidence and he did so. The claim was most recently readjudicated in a May 2013 SSOC. Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), service personnel records, and post-service medical records, to include private treatment records. The Veteran was afforded VA examinations in February 2011 and in May 2013. The May 2013 VA examination is sufficient, as the examiner conducted a complete examination, recorded all relevant findings, and offered opinions based on consideration of the record, including the Veteran's statements. In the April 2013 remand, the Board noted the February 2011 VA radiologist's indication that "given the history of trauma," a computed tomography (CT) scan could be warranted and instructed that "all necessary tests" be conducted on remand. A CT scan was not performed as part of the May 2013 examination and the examiner specifically explained why the test was not required to answer the question posed on remand. At the February 2011 VA examination, the Veteran reported that he received chiropractic treatments for his neck disabilities in 1976. The RO contacted the Veteran to obtain the information and consent required to retrieve any related medical records, but the Veteran did not respond to that request. The Board finds that VA satisfied its duty to assist. II. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA regulations provide that, in cases where the evidence shows that a veteran engaged in combat with the enemy, VA will accept satisfactory lay or other evidence of service incurrence if it is consistent with the circumstances, conditions or hardship of such service, notwithstanding the fact that there is no official record of such in-service incurrence. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). This presumption does not establish a presumption of service connection, but it eases the Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) Competent medical evidence includes evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1372. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). In 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; Gilbert, 1 Vet. App. at 51. III. Factual Background The Veteran alleges that during active service in Vietnam in March 1968, he was struck with shrapnel in the neck and fell injuring his right knee, resulting in his current neck and right knee disabilities. He has asserted that he was examined at Bien Hoa, Vietnam and shrapnel was removed from his neck. The Veteran stated that he has experienced chronic neck stiffness since the March 1968 injury. The Veteran's service personnel records indicate that the Veteran was a cannoneer in Vietnam during the time in which the alleged mortar attack occurred. The Veteran's STRs are devoid of any treatment of his neck, or head in March 1968 or during any period of service. The report of a September 1969 separation examination included normal clinical evaluations and was silent for any pertinent defects or diagnoses. The Veteran did not report any complaints on the related Report of Medical History. September 2006 VA treatment records indicated that the Veteran's neck was "supple," "no thyromegaly, adenopathy, or carotid bruits were noted." His cranial nerves were grossly intact and no gross motor or sensory deficits were noted. At a November 2006 examination conducted prior to knee surgery, the Veteran was examined by a private physician, Dr. G. E., who noted that he did not provide any complaints of neck stiffness or pain; the Veteran's was noted to have "full range of motion" and a "supple" neck, without masses. During a February 2011 VA examination, the examiner noted that the onset of the neck complaints dated to May 1968 when the Veteran was struck at the base of the skull with shrapnel. The Veteran reported that he was sent to Saigon for shrapnel removal from his neck and that the next time that he received medical attention for his neck was in 1976 when he received chiropractic treatment. The Veteran also reported a history of head injury at 8 years old and "possibly 30 years prior" to the February 2011 VA examination, although he was not evaluated and did not seek treatment following this incident. X-ray studies showed chronic degenerative changes. The radiologist commented that, given the history of trauma, more sensitive evaluation by CT scan could be warranted. Based on the examination and review of the record, the diagnosis was cervical strain, which the examiner opined was not due to, caused by, or a result of service. The examiner stated that there is no indication that the Veteran had any chronic or ongoing problems since the time of his discharge and the medical records are silent for conditions pertaining to the Veteran's neck for more than 30 years. Although the Veteran reported seeing a chiropractor in 1976, there were no medical records confirming that. In April 2013, the Board remanded the claim for a new examination to consider the Veteran's history of treatment since service and the radiologist's reference to a CT scan. At the May 2013 VA Examination, the Veteran described the 1968 Vietnam mortar attack and injury, stating "they checked out my neck and said I would be okay;" he added that the wound was cleaned and bandaged, but no foreign body was removed and no sutures were placed. The Veteran reported that it was two to three years following his return from overseas, that he began to notice stiffness in his neck. The Veteran "did not recall seeing anyone" for a neck condition following separation until the February 2011 VA examination. The May 2013 VA examiner opined that it is less likely than not that the Veteran's cervical strain had its onset in service or is otherwise related to service, to specifically include the conceded shell fragment injury. The examiner explained that it has been conceded that the Veteran sustained a shell fragment wound to the head or neck while serving in Vietnam; however, there is no evidence in the available STRs to indicate that the Veteran was seen or treated for collateral injury secondary to the shell fragment wound that was of the degree that would result in a later cervical spine condition. The examiner stated that since the Veteran's recollection was that a shell fragment was not removed in a major surgical procedure, it is not likely to have impacted cervical spine itself and that significant cervical muscle injury does not appear to have occurred. Retained shell fragments were not seen in the soft tissue of the scalp or neck on x-ray. Available records contain no evidence of any spine abnormalities at separation from active service or of an ongoing chronic neck condition during or post-service. The separation examination does not report a spine abnormality on examination and the Report of Medical History is negative for any complaint. There is no evidence in the available records that the Veteran complained of or was treated for a neck condition from the time of discharge to the origin of the current claim. The examiner stated that available records do not support a nexus between a shell fragment wound to the head or neck during service in Vietnam and the current neck condition. A CT scan was not performed as part of the May 2013 examination. The examiner explained that he discussed the February 2011 radiology report with the reporting radiologist and learned that the radiologist was under the impression that the Veteran's 2011 examination was for acute trauma rather than a chronic condition, thus prompting his statement for better imaging capability to identify acute cervical spine injury such as fracture. The examiner indicated that a CT scan would not provide additional information regarding the nature or etiology of the Veteran's neck condition. IV. Analysis The Board has conducted a careful review of the record, and concludes that the evidence of record is against the claim of service connection for a neck disability. The Veteran's account of the mortar attack is consistent with his duties in service. Thus, it is conceded that Veteran sustained a shell fragment wound to the head or neck during service. The medical evidence includes a current diagnosis of a neck disability. Thus, the central issue is whether his currently diagnosed neck disability is related to service. The Veteran's post-service statements are inconsistent as to when his symptoms began. His separation examination report is negative for any residuals of a head or neck injury or scarring and he did not complain of any related symptoms on his Report of Medical History. He denied symptoms of neck pain and stiffness in November 2006. He told the February 2011 VA examiner that he first sought treatment from a chiropractor in 1976 and was last seen in 2005, but did not respond to the RO's request for information necessary to obtain those records. At the May 2013 VA examination, the Veteran reported that he began to notice stiffness in his neck two to three years following his return from service, but he did not recall seeing anyone for a neck condition until 2011, in connection with the current claim. The Veteran is competent to report that he experienced neck stiffness within a few years of separation from service; however, the Board finds that, given the inconsistency in his statements, he is less than credible with regard to chronic pain since service. The Board finds the May 2013 VA opinion that the Veteran's current neck disability is not related to service is the most probative evidence on the question of nexus. That examiner considered the Veteran's history of injury in service and his report that he experienced neck stiffness 2 to 3 years after service, but provided a negative opinion based on the nature of the in-service injury, the absence of retained shell fragments on x-ray and the lack of related findings or complaints on separation. Although the examiner also appears to have considered the lack of evidence of complaints or treatment from service to the time of the current claim, the Board has afforded the Veteran's report of his post-service history little probative weight because of the inconsistencies. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C.A §5107. ORDER Entitlement to service connection for a neck disability is denied. REMAND Additional development is necessary prior to further adjudication of the Veteran's claim for service connection for a right knee disability. In April 2011, the Board remanded the Veteran's case for an addendum medical opinion which specifically considered the Veteran's in-service fall. The May 2013 opinion is inadequate because the basis of the opinion is a lack of evaluation or treatment of a knee condition from discharge until 2006. The first treatment records are dated in 2006, but the Board points out that the records pertain to a total knee replacement. The fact that the "first treatment" since service was a total knee replacement in 2006 and the examiner offered a negative opinion because there was no treatment until 2006, calls into question the adequacy of the addendum opinion. Thus, another opinion is required. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007) Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to obtain the names and address of all VA, and non-VA medical care providers who have treated him for his right knee disability since service. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of his right knee disability. The claims folder must be made available to the examiner for review and all indicated testing should be performed. Based on the examination and review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's right knee disability is etiologically related to any incident of the Veteran's active service, including his conceded 1968 Vietnam combat injury. The examiner must provide a complete rationale for any opinion provided. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Readjudicate the claim on appeal. If the benefit sought is not fully granted, provide the Veteran and his representative a SSOC before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs