Citation Nr: 1327607 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 05-31 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a neck disorder, to include as due to the service-connected mechanical low back pain. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from September 1985 to September 1989. This case arises to the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied service connection for a claimed neck disability. The Veteran testified before the undersigned Acting Veterans Law Judge at videoconference hearing held in July 2009. This matter was remanded in August 2009, March 2012, and April 2013. The requested development was completed, and the case has now been returned to the Board for further appellate action. FINDING OF FACT The most probative evidence indicates the Veteran's neck disorder, initially diagnosed after service, is not caused or aggravated by his service-connected mechanical low back pain. CONCLUSION OF LAW A neck disorder was not incurred in or aggravated by active service, and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1131, 1112, 1133, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished by letters sent in October 2004 and March 2006. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The March 2006 letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to Dingess v. Nicholson, 19 Vet App 473 (2006). Additionally, the claim was readjudicated in the May 2013 supplemental statement of the case. The Veteran has been afforded a hearing before the undersigned AVLJ at a videoconference hearing held in July 2009, in which he presented oral argument in support of his claim for service connection for a neck disability as secondary to the low back disability. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, at the hearings, the AVLJ discussed with the Veteran facts relating to the elements of the pending claim that were lacking to substantiate his claim for benefits. The AVLJ also sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. In fact, the Veteran was able to provide pertinent evidence as to the current severity of his symptoms, which was considered in this decision. Moreover, neither he nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the evidence is sufficient for a determination. The claimant was provided the opportunity to present pertinent evidence. The Virtual VA file, service records, and available private and VA treatment records have been obtained. In addition, he has been provided with VA examinations in connection with his present claim. He has not indicated there are any additional records that VA should seek to obtain on his behalf. As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Service Connection In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. § 1110. Service connection may 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). Where a Veteran served for 90 days in active service, and arthritis develops to a degree of 10 percent or more within one year from the date of separation from service, such disability may be service connected even though there is no evidence of such disease in service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, a disability may be service-connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Moreover, when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In adjudicating this claim, the Board must assess the Appellant's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means 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 the facts or circumstances and conveys matters that can be observed and described by a lay person). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Service treatment records document complaints of neck pain in June 1987, which were attributed to tension headaches. The service treatment records contain no complaints, history or findings consistent with a cervical spine disability, and on separation from service the Veteran's spine was clinically evaluated as normal. After service, a VA clinical treatment note in March 2001, noted complaints of chronic low back pain and intermittent complaints of cervical spine pain. In April 2002, the Veteran reported a history of neck and head trauma in service. A VA clinical treatment note in January 2003 reflects complaints of and treatment for neck pain. An October 2004 MRI of the cervical spine revealed minimal degenerative disease. In November 2004, VA cervical spine x-rays showed minimal degenerative change and osteophyte formation at C-5. The Veteran reported a relevant history of motor vehicle accidents since leaving service in the 1980's, 1991, 2002, and 2004. Given the absence of any complaints in service, or for years thereafter, and no competent evidence linking the current disability to service, there is no basis for concluding the Veteran's neck disorder was incurred in or is otherwise due to service. Additionally, degenerative joint disease of the cervical spine was not documented within one year of discharge from service, so service connection for degenerative joint disease on a presumptive basis is not warranted. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Likewise, the Veteran has not asserted that he has a neck disability directly due to service. The thrust of the Veteran's claim is that he developed a neck disorder due to his service-connected mechanical low back pain. The Veteran asserts that his cervical spine disability was caused or aggravated by his service-connected low back disability. Regarding the Veteran's contentions, the Board acknowledges that he is competent to give evidence about what he experienced, and he is competent to report that he has experienced pain and spasms in his neck. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Although he is competent to describe symptoms affecting the neck, the determination as to the cause of a cervical spine disability is medical in nature and not capable of lay observation. As a lay person, he does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of the condition. See Kahana; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that "[l]ay evidence can be competent and sufficient to establish a diagnosis when... a lay person is competent to identify the medical condition" and providing, as an example, that a layperson would be competent to identify a condition such as a broken leg, but would not be competent to identify a form of cancer); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). As such, the Board finds the Veteran's assertions alone are insufficient to establish service connection. His lay assertions are of limited probative value when offered to establish a causal connection between his neck condition and the service-connected low back disability. On the question of medical causation or medical evidence of an association or link between a neck disorder, to include degenerative joint disease and muscle spasms, and the service-connected low back disability, there is evidence both for and against the claim. 38 C.F.R. § 3.303(d). The Veteran was afforded a VA spine examination in November 2009. X-rays of the cervical spine were not obtained at the examination and the examiner concluded that he could "only speculate it is less likely that the [Veteran's] cervical spine resulted from the service-connected mechanical low back pains without any x-ray evidence." The examination noted that x-rays of the cervical spine were ordered. However, these x-rays, and an addendum medical opinion were not of record, thus the Board has determined this the examination is inadequate with regard to the question of etiology. In support of his claim, in November 2009, the Veteran's VA cardiologist reported, "he does appear to have a neck disability from cervical spondylosis or cervical spine disorder. It could very well be aggravated from the chronic back pain." The Board notes that to the extent that the Veteran's cardiologist associated the Veteran's cervical spine disability to the service-connected low back condition, it is hard to establish a definite correlation between the two problems, as the opinion is speculative because a medical opinion expressed in the term of "could" the equivalent of may, also implies that it could not and such an equivocal statement regarding the etiology of the condition is not sufficiently probative to make a decision in this appeal. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Significantly, the opinion was not supported by a rationale, which weighs against its probative value. Nieves-Rodriguez. That report, while a statement by competent medical professional, is of little probative value and does not constitute competent medical evidence of a nexus between the Veteran's neck disorder and the low back disability to the extent that it is based solely on reported assertions of the Veteran and does not contain medical analysis in support of the findings. The evidence against the claim consists of the medical opinion of a VA examiner in April 2012 and April 2013, who opined that the Veteran's cervical spine condition was not caused or aggravated by his service-connected low back disability. On VA examination in April 2012, the examiner reported that x-rays of the neck were "essentially normal." Examination of the cervical spine revealed limitation of motion and painful motion with additional functional impairment due to weakened movement, incoordination, painful motion, excess fatigability, disturbance of motion, and interference with sitting, standing, and weight-bearing. Muscle spasm was severe enough to cause abnormal spine contour. The cervical spine condition impacted the Veteran's ability to work, as it limited his driving, turning his head in several planes, limited his capacity for lifting, and limited his attention and concentration. The examiner diagnosed muscle spasms, trapezius muscles, bilaterally. The examiner concluded that it was unlikely that the neck condition was due to or the result of the service-connected condition. The examiner reiterated that x-rays of the cervical spine were essentially normal and physical examination showed no chronic processes. Moreover, many years had passed following the Veteran's fall on board a ship in 1986, and post-service complaints pertaining to a neck disorder. However, the examiner did not address whether the service-connected low back disability aggravated the cervical spine disorder, that is, made it worse, or more painful, or harder to treat, etc, and as such, the Board remanded for an addendum opinion to address aggravation. In an addendum opinion report dated in April 2013, the examiner who previously examined the Veteran in April 2012, following a review of the Veteran's claims file, opined that the Veteran's cervical spine disorder was not caused by low back pain, nor was it worsened by it. Rather, the examiner attributed symptoms associated with the neck to the Veteran's posture. In this regard, the examiner explained that Veteran was observed to sit in a very tense position and held the neck rigidly. The Board assigns greater weight to the medical opinions of the VA examiner in April 2012 and 2013, because the examiner applied medical analysis to the significant facts of the case. The opinions are reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. Prejean v. West, 13 Vet. App. 444 (2000). The opinions of the VA examiner were based on review of the Veteran's claims file, to include the service treatment records and post-service medical evidence, and included an examination of the Veteran. The examiner also explained why the Veteran's symptomatology was not related to his service-connected low back disability. Nieves-Rodriguez. At the personal hearing in July 2009, the Veteran testified that his treating physicians had told him, in private, that his neck muscle spasms were due to the low back condition. To the extent that the Veteran was repeating what a physician told him, what a physician purportedly said, is medical hearsay evidence and is too attenuated and inherently unreliable to constitute medical evidence and the Board rejects the statements as competent evidence of a relationship between the neck disorder and the service-connected mechanical low back pain. Robinette v. Brown, 8 Vet. App. 69 (1995). The Board may consider only competent, medical evidence to support its findings as to questions involving a medical diagnosis that is not capable of lay observation. The Board may only consider competent medical evidence of medical causation because lay assertion on medical causation is not competent evidence. Here the weight of the competent medical evidence is against a finding that the Veteran's current neck condition is causally related to service, manifested more than 1 year after discharge from service and is not otherwise related to service or a service-connected disability, to include the low back disability. For these reasons, the preponderance of the evidence weighs against the award of service connection for a neck disorder, and the claim must be denied. In reaching these conclusions, the Board notes that, under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim in this case, and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a neck disorder, to include as due to the service-connected mechanical low back pain, is denied. ____________________________________________ M.W. KREINDLER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs