Citation Nr: 1328185 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 05-14 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to a right shoulder disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from January 1979 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) from a January 2004 rating decision of a Department of Veteran's Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This matter was remanded in April 2009, December 2010, and in February 2012 for additional development. FINDINGS OF FACT Complaints of neck pain were first noted more than seven years after separation from service and the most probative medical opinion evidence on the medical nexus question, on a direct or secondary basis, weighs against the claim. Arthritis was first noted many years after service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability, to include as secondary to a service-connected right shoulder disability, are not met. Arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in an August 2003 letter, and a rating decision in January 2004, and a statement of the case in March 2005. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent April 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim on appeal as well as two VHA opinions. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be presumed for certain chronic diseases, including arthritis, which develop to a compensable degree within one year after separation from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. 3.307, 3.309(a) (2012). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2012). 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. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). The Veteran contends that he has a cervical spine disability related to a "crick" in the neck that he developed in service as a result of a right shoulder basketball injury. The Veteran is service-connected for degenerative joint disease of the right shoulder. A disability may also be service connected on a secondary basis by demonstrating that the disability is either proximately due to or the result of an already service-connected disease or injury or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (2012). The service medical records are negative for any complaints, diagnoses, or treatment related to the neck or cervical spine. They show that in January 1990, the Veteran was treated for complaints of right shoulder pain following a basketball game in which an opposing player reportedly collided with his arm and "carried it up." He did not complain of any neck pain. X-rays revealed no evidence of any significant abnormality, and a right shoulder arthrogram performed the following month was normal. In July 1990, he underwent an in-service physical examination in which he reported ongoing right shoulder pain, but did not report any neck pain at that time. Private medical records from April 2003 show that the Veteran was injured at work, and in May 2003 and June 2003, he received private treatment for pain in the right side of his neck with symptoms going down his arm to his elbow. The physician noted that an MRI revealed a ruptured disc and a spur at the C6-7 level of his neck that was pinching a nerve going to his right upper extremity. However, it was noted that the appearance of the disc injury was old, and it was not felt that the injury was caused by his work. The physician felt that the nature of the neck lesion was such that the condition had to come on over a long period of time. The Veteran reported that he recalled an old neck injury several years ago. An August 2003 VA examination report shows that the Veteran complained of ongoing neck pain. The Veteran claimed that the conditions were related to his 1990 in-service basketball injury. It was noted that while the Veteran had not sought medical treatment for neck pain, he had recently undergone Magnetic Resonance Imaging (MRI) that showed desiccation of the C5, C6, and C7 discs of the cervical spine. While X-rays of the cervical spine were normal, based on the Veteran's statements, a review of the claims folder, and the physical examination, the examiner diagnosed arthralgia of the cervical spine with loss of function due to pain. The examiner further noted that, in his opinion, the Veteran's neck condition was at least as likely as not related to the shoulder injury. During a July 2009 VA examination, the Veteran complained of right shoulder pain and stiffness, and pain and stiffness at the base of the neck. He reported that since he sustained injury to his shoulder in 1990, he had associated pain and felt as though he had a "crick" in his neck at the right base of the neck. He also reported a "popping" sensation at times low in the neck, and stiffness most mornings. The examiner diagnosed mild degenerative disc disease of the cervical spine and noted that, in his opinion, the Veteran's cervical spine disorder was less likely as not caused by or a result of the shoulder injury in service. In support of that conclusion, the examiner noted that the mildness of the single disc area degeneration was not consistent with an injury of a remote nature to be associated with the in-service right shoulder injury. Thereafter, in a February 2011 report, the prior VA examiner opined that the Veteran's cervical spine disorder was not caused by or a result of his service-connected right shoulder disorder. In support of that opinion, the examiner referred to the opinions offered in the July 2009 VA examination and added that it was highly unlikely that any sort of shoulder injury or disorder could cause a cervical spine injury or disorder such as seen in the Veteran. Instead, the examiner felt that the reverse would be much more likely, if the actual injury was to the neck and not the shoulder. Therefore, the examiner concluded that the Veteran's cervical spine disorder was neither caused nor aggravated by the service-connected shoulder injury. In December 2011, the Veteran underwent an additional VA examination during which he reiterated prior contentions. The examiner noted a previous diagnosis of cervical spine degenerative disc disease. The examiner opined that the Veteran's claimed cervical spine condition was less likely than not incurred in or caused by his claimed in-service injury. In support of that conclusion, the examiner noted a normal spine examination and an absence of complaints of chronic neck pain in the service medical record. Additionally, the examiner found probative that the first evidence of neck pain was not until 2003. Finally, the examiner found that the Veteran's current cervical spine imaging showed degenerative disease that was not likely related to the Veteran's right shoulder injury. In March 2012, the Veteran underwent an additional VA examination. At that time, the VA examiner diagnosed degenerative disc disease of the cervical spine, noting the date of diagnosis in the 1980s. The VA examiner indicated that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The rationale was that there was no documentation of chronic neck pain during active military service. The examiner also opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The rationale was that there was no documentation of chronic neck pain. In a November 2012 VHA opinion, a VA orthopedic surgeon stated that the reported injury to the right shoulder region in 1990 while on active duty was likely a mild acromioclavicular (AC) joint separation, probably Grade 1 as the X-rays were reportedly negative. Additionally, an MRI one month later was reported as being normal. That period of time would have been adequate for a neck injury to manifest itself at least with a complaint of pain or stiffness. That was not documented. There were reportedly no other documents from the Veteran's time on Active Duty to indicate a neck injury or condition. Based on that information, the examiner found that there was a near 0 percent probability that the present neck condition was based on an identifiable factor related to the Veteran's active duty time. The cervical spine condition was documented in 2003. An MRI at that time reportedly showed desiccation of three separate discs and rupture of a disc at the C6-C7 level with impingement on the right C6 nerve root. Those changes were not caused by a shoulder condition. There was no literature to confirm or refute that statement. However in the differential diagnosis for etiology of cervical disc desiccation or herniation, shoulder pain/condition was not considered. A shoulder disability causing the cervical spine disability described would be reportable as an extremely unusual cause. The VA physician further opined that the likelihood of the service-connected right shoulder disability causing the cervical spine disability was far less than 50 percent and only marginally about 0 percent. The physician further stated that the likelihood of the shoulder disability aggravating the diagnosed cervical spine disability beyond the natural progression was far less than 50 percent. The shoulder disability for which the appellant was service-connected was not recognized as a causative factor for the cervical disability. Additionally, there was not any recognized evidence that the shoulder disability described would accelerate or worsen the natural history of the cervical spine disability described. There was no literature to support such a claim. In March 2013, an additional VHA opinion was obtained. The VA physician noted the Veteran's pertinent medical history after service. The physician also noted that the Veteran's right shoulder was injured in service when another player collided with him and pushed his arm up. At that time, the Veteran was found to have pain in the AC joint. There was no mention of neck pain. The VA physician stated that a literature search was done and there was no article found regarding the association of neck pain with grade 1 AC separation. There was a study regarding chronic type III acromioclavicular joint dislocation and cervical spine pain. That article found no correlation between type III AC joint dislocation and degenerative changes of the cervical spine. There was a correlation between type III AC joint dislocation and neck pain. The VA physician specifically noted that a grade 3 AC separation was a much more severe injury than grade 1. The physician further stated that the Veteran was diagnosed with a grade 1 AC separation. There was no radiographic diagnosis and therefore, that was clinical. Arthrogram of the shoulder was normal. The Veteran had no mention of any type of neck pain while in service. There is no correlation between degenerative arthritis and grade 3 AC separation. There was no diagnosis of hypolordosis in the MRI. The etiology of degenerative arthritis in the large majority of cases was essentially unknown, although it is felt that it may be caused by trauma in some instances. However, if the trauma was severe enough to cause bony and disc injury it was the physician's opinion that pain in the cervical spine area would be substantial and would be reported. The Veteran had no specific neck injury or reports of pain in the neck until 2003. Therefore, it was the VA physician's opinion that it was likely as not that the Veteran's arthritis and disc problem was not service-connected. After carefully considering the pertinent evidence, to include the Veteran's assertions, the Board finds that the preponderance of the evidence weighs against the claim for service connection for a cervical spine disability, on a direct or secondary basis. Service medical records are negative for symptoms, complaints, findings, or diagnosis of a neck or cervical spine disability. After service, the first evidence that the Veteran had complaints pertaining to his neck was in a May 2003 private medical records, contemporaneous to injuring himself at work, more than eight years after discharge from service. That time period is well beyond the presumptive period for establishing service connection for arthritis as a chronic disease. 38 C.F.R. §§ 3.307, 3.309 (2012). Furthermore, the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). In none of the medical records associated with the claims file, prior to the Veteran's submission of his claim for VA benefits in July 2003, did the Veteran mention that he had pain in his cervical spine or neck during or since service, or that cervical spine or neck pain was in any way related to his military service. The Board is aware that a June 2003 private medical record shows that a private physician believed that the Veteran's disc injury in his neck was old and that the nature of neck lesion was such that it had to come on over a period of years. However, that physician did not relate any neck disability to service or to the Veteran's right shoulder. Moreover, it was noted that the Veteran remembered an old neck injury from several years ago. Again, there is no indication that the Veteran related that injury to his active service. It is the Board's duty to assess the credibility and probative value of evidence. Hayes v. Brown, 5 Vet. App. 60 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1992). Moreover, providing that the Board offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429 (1995). With any piece of evidence, the credibility and weight to be assigned to the opinions are within the province of the Board as the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). In this case, the only medical evidence of a favorable nexus opinion is an August 2003 VA examination report in which the examiner opined that the Veteran's neck condition was at least as likely as not related to the shoulder injury. However, this VA examiner did not discuss that the first complaints pertaining to the Veteran's neck were more than seven years after service, contemporaneous with an injury while working. Moreover, the opinion is one sentence long, it is summary in nature, it does not cite to clinical findings in service, or thereafter, and it does not provide any sort of explanation or rationale, nor does it cite to any studies or medical authority. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). It is therefore afforded less probative value. By contrast, the Board accords great probative value to the VA physicians who provided the November 2012 and March 2013 VHA opinions. In those opinion, the VA physicians considered the Veteran's entire medical history, and discussed pertinent medical records associated with the claims file. Each of the physicians discussed that the medical literature failed to support a finding of a relationship between the Veteran's service-connected right shoulder disability and his current cervical spine disability. In addition, each of the VA physicians concluded that a neck injury would have manifested with at least a complaint of pain or stiffness in service. However, there was no documentation of any such complaints nor was there any documentation of a specific neck injury in service. The Board finds that the November 2012 and March 2013 VA physician's opinions constitute probative evidence on the medical nexus questions, both on a direct and secondary basis, as they were based on a review of the Veteran's documented medical history, both objective findings and subjective contentions by the Veteran, each VA physician provided a rationale for each of their opinions specific to the facts of the Veteran's case and they each discussed the fact that a review of the medical literature failed to support the Veteran's contentions. 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. Prejean v. West, 13 Vet. App. 444 (2000). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusions reached. The credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Thus, considering the medical opinions of record, for the reasons discussed above, the Board finds that the most probative medical opinion evidence on the medical nexus question weighs against the claims for service connection for a cervical spine disability, to include as secondary to a right shoulder disability. The Board acknowledges that the March 2013 examiner phrased the opinion that it was "likely as not" that the cervical spine disability was "no service connected." While that statement would seem to also imply that it was as likely as not that the cervical disability was service-connected, the Board has examined the remainder of the document in which the examiner provides the narrative basis for the opinion and restates the conclusions elsewhere. The Board finds that the opinion overall expresses a negative opinion that supports and concurs with that of the November 2012 VHA opinion. The only other evidence of record supporting the Veteran's claim is his own lay statements. Even if these statements could be read as claiming continuity of symptomatology since service, that history is substantially rebutted by the complete absence of complaints pertaining to the neck until a May 2003 private medical record. In addition, while the Veteran is competent to describe his symptoms, the Board finds that there is no evidence of record to show that he has the specialized medical education, training and experience necessary to render a competent medical opinion as to the nature and etiology of the cervical spine disability claimed on appeal and diagnosing cervical spine disabilities is medically complex in nature. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board concludes that the claims for service connection for a cervical spine disability, to include as secondary to a right shoulder disability, must be denied. The Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a cervical spine disability, to include as secondary to a right shoulder disability, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs