Citation Nr: 1328326 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 11- 13 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a neck condition, to include degenerative joint disease (DJD), degenerative disc disease (DDD), and spinal stenosis of the cervical spine. REPRESENTATION Appellant represented by: Kenneth LaVan (Attorney) WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from April 1945 to December 1946. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for a neck condition. The record reveals diagnoses of DJD, DDD, and spinal stenosis. Accordingly, the Board has recharacterized the issue as reflected on the title page in order to include these diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (finding that a claimant is not generally competent to diagnose a specific condition, rather, a claimant is competent to identify and explain the symptoms that he observes and experiences). In June 2013 and August 2013, the Veteran's representative submitted additional evidence to the Board with a waiver of consideration by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2012). Accordingly, the Board may proceed with adjudication of the claims without prejudice to the Veteran. See 38 C.F.R. § 20.1304(c). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy during service. 2. The Veteran was involved in a motor vehicle accident in service in October 1946. 3. The Veteran has a current diagnoses of DJD, DDD, and spinal stenosis of the cervical spine. 4. Symptoms relating to a cervical spine disability were not chronic in service and have not been continuous since service separation. 5. DJD (arthritis) of the cervical spine did not manifest in service or within one year of service separation. 6. The Veteran's neck disorder, to include DJD, DDD, and spinal stenosis is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a neck condition, to include DJD, DDD, and spinal stenosis of the cervical spine have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that the VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). An April 2010 VCAA notice letter satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, the RO informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; and the information and evidence the Veteran was expected to provide. In the same notice, the RO provided the information about the provisions for the effective date of a claim and for the degree of disability assignable. The Board also finds that all necessary assistance has been provided to the Veteran. The evidence of record indicates that service treatment records, VA treatment records, private treatment records, and the Veteran's statements are of record. The Veteran was also provided a VA examination that addressed the claim for service connection for his neck condition in December 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion and findings obtained in this case are predicated on a full reading of the medical records in the claims file. Specifically, the December 2011 VA opinion considered all the pertinent evidence of record, to include the Veteran's statements, VA treatment records, private records, and provided a rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. The Board will rely on all the evidence of record to determine the issues on appeal. The record is sufficiently developed for a determination at this time. Accordingly, appellate review may proceed without prejudice to the Veteran. See Bernard, 4 Vet. App. at 384. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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). The Board finds that a component of the Veteran's cervical spine disability involves DJD (arthritis), which is considered a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the Board will apply 38 C.F.R. § 3.303(b) to the cervical spine disability issue. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946 develops certain chronic diseases, such arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor. See VAOPGCPREC 12- 99. The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Service Connection for Cervical Spine Disability The Veteran contends that he suffered a neck injury during service while serving in South Korea in October 1946. Specifically, the Veteran stated that he hit his head on the windshield of a Jeep after he missed a turn and landed in a ditch. The Veteran contends that he has continued to have neck pain since the in-service motor vehicle accident and maintains that his current neck pain and related diagnoses are a result of his in-service neck injury. See May 2013 Hearing Transcript. At the outset, the Board finds that the Veteran has currently diagnosed DJD, DDD, and spinal stenosis of the cervical spine. See December 2011 VA examination report. Next, the Veteran's DD Form 214 shows that he was awarded the World War II Victory Medal and the Army of Occupation Medal. Although the evidence of record does not establish that the Veteran is a combat-veteran, the described injury in service is consistent with the circumstances and conditions of his military service. Specifically, the Veteran's DD Form 214 reveals that his military occupational specialty was "truck driver." Further, the Veteran has credibly and consistently reported the in-service motor vehicle accident. See May 2013 Hearing Transcript. The Board finds that, although the Veteran sustained a neck injury in service, symptoms relating to a cervical spine disability were not chronic in service. Service treatment records are negative for any complaints, treatment, or diagnoses relating to the cervical spine. In the separation examination report dated November 1946, the Veteran did not report neck pain and no musculoskeletal defects were noted. Had the Veteran experienced continuous neck pain after the in-service motor vehicle accident, the Board finds it reasonable to assume that the Veteran would have reported such ailments during the separation examination, especially since he testified that the motor vehicle accident occurred in October 1946, only one month prior to the November 1946 service separation medical examination. See May 2013 Hearing Transcript at pg. 10. For these reasons, the Board finds that the Veteran's cervical spine disability was not chronic in service. The Board also finds that the weight of the probative evidence demonstrates that cervical spine arthritis (DJD) did not manifest to a compensable degree within one year of service separation. The weight of the evidence demonstrates no arthritis symptoms during the one year period after service, and no diagnosis or findings of arthritis of any severity during the one year post-service presumptive period. See 38 C.F.R. §§ 3.307, 3.309. As will be discussed in detail below, the evidence shows the first assessment of arthritis was 47 years after service separation in 1946. See statement of attending physician dated April 2008. For these reasons, the Board finds that arthritis (DJD), first diagnosed in 1994, did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for arthritis are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309. The Board next finds that the weight of the evidence demonstrates that symptoms associated with a cervical spine disability have not been continuous since service separation. Upon review of the evidence of record, the Board finds that the evidence does not demonstrate any complaints, treatment, or diagnosis relating to the cervical spine until 1994, 47 years after service separation. The Board finds the lack of complaints, diagnosis, and treatment from either private or VA medical professionals for over 45 years weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor for consideration in deciding a claim). Although the evidence of record reveals that the Veteran first sought treatment from Dr. C.A. in 1988 for chronic shoulder pain, an April 2008 statement from Dr. C.A reveals that chronic neck pain began in 1994. In a January 1994 treatment note, Dr. C.A. stated that the Veteran complained of neck pain and stiffness all the time which worsened at night after work. Dr. C.A. noted that the Veteran was a welder and wore a helmet for approximately 8 to 12 hours a day. Further, in a May 1994 office visit to Dr. D.H., the Veteran was seen for a right hand condition. When describing his history, the Veteran stated that he had chronic neck pain due to arthritis. The Veteran made no mention of the in- service motor vehicle accident or continuous neck pain since that time. In a February 2010 VA treatment note, the VA physician stated that the Veteran reported posterior cervical pain for over 20 years (i.e., 1980 and over 30 years after service separation). The Board finds that this also weighs against a finding of continuous cervical spine disorder symptoms since service separation. The Board finds the February 2010 VA treatment note and the May 1994 and April 2008 private treatment records to be highly probative as to the lack of continuing symptomatology after service separation and also as to the Veteran's credibility. Although he Veteran now contends that his cervical spine pain has been continuous since service separation, private treatment records reflect that the Veteran first sought treatment in 1994, 47 years after service separation. Further, the January 1994 and May 1994 reports do not discuss or reference any cervical injury relating to the in-service motor vehicle accident. In February 2010, the Veteran reported an onset date for neck pain to be approximately 30 years after service. Accordingly, the Board finds that the Veteran's statements relating to continuous cervical spine pain since service separation not credible, and therefore, of no probative value. For these reasons, the Board finds that the Veteran's more recent statements of continuous symptoms of cervical spine pain after service, made pursuant to the claim for VA compensation, are outweighed by other lay and medical evidence, including the 1994 private treatment records. Accordingly, the Board finds that the Veteran's cervical spine symptoms have not been continuous since service separation. The Board further finds that the weight of the competent and probative evidence demonstrates that the currently diagnosed cervical spine disabilities are not related to or caused by the in-service motor vehicle accident in October 1946. In a September 2011 statement, Dr. C.A. noted a diagnosis of chronic neck pain and the Veteran's history of a motor vehicle accident in 1946. Dr. C.A. stated that subsequent to the motor vehicle accident, degenerative joint disease and osteoarthritis worsened the Veteran's neck pain. There is no indication that Dr. C.A. reviewed the claims file, to include service treatment records. Further, the opinion does not relate DJD or osteoarthritis to the in-service motor vehicle accident. Moreover, Dr. C.A.'s opinion is not accompanied by a supporting rationale. For these reasons, the Board affords little probative weight to the September 2011 statement from Dr. C.A. In December 2011, the Veteran was afforded a VA examination to assist in determining the etiology of his cervical spine disability. After a thorough review of the claims file, to include service treatment records and Dr. C.A.'s opinion, the VA examiner diagnosed the Veteran with DJD, DDD, and spinal stenosis. The examiner opined that the Veteran's cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury. In support of his opinion, the VA examiner reasoned that at the time of his initial documented complaints the Veteran was 67 years old. According to the December 2011 VA examiner, DDD and neck pain are common at that age in the normal population. The VA examiner also provided the following rationale: "if we assume as instructed that the Jeep accident occurred, then we apply the same criteria to this case as to any other claim for direct service connection. From what we know, there was only a single event. There is no medical care during the service recorded, and no neck pain was noted a the time of discharge. However a discharge examination was provided in November 1945 and November 1946. Following discharge, there are no buddy statements from other servicemen. Although the veteran states he had pain in his neck after the service, he is vague as to when this pain started. He was gainfully employed for many years without neck problems sufficient to require medical treatment. The first records we have of medical treatment are in 1993. Therefore, the records are silent for a period of over 45 years that would document continued complaint or treatment. There is no evidence of documented continuing complaints or treatments to indicate a chronic disabling condition. X-ray changes and physical examination are compatible with his age and senessence [sic]." If there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the Board finds the December 2011 VA medical opinion to be the most competent and probative evidence of record on the issue of a nexus to service. Unlike Dr. C.A., the December 2011 VA examiner reviewed all the evidence in the claims file, including the November 1946 service separation examination, post-service treatment records, and the Veteran's prior statements. Further, the December 2011 VA examiner provided a detailed rationale in support of the opinion rendered. While the examiner noted no buddy statements from other servicemen were of record, the examiner indicated that the opinion was based on the assumption that the jeep accident occurred. Therefore the absence of buddy statements was not relevant to the formation of the opinion and not prejudicial to the Veteran. The Board has also reviewed post-service VA treatment records which document continued treatment for neck pain. That notwithstanding, these treatment records do not provide an opinion as to etiology of the Veteran's neck condition. For example, in the February 2010 VA treatment record, the VA physician noted that the Veteran was a welder for most of his life and used a heavy welding mask and was always looking down. The VA physician further noted that the Veteran reported that his neck pain could have started with the in-service motor vehicle accident. The February 2010 VA physician did not provide an etiological opinion for the currently diagnosed cervical spine disability. The Board has considered statements from the Veteran asserting a nexus between his currently-diagnosed cervical spine disability and active duty service. The Board has also reviewed and considered the July 2011 statements from the Veteran's sister and son. In summary, the Veteran's sister and son stated that the Veteran had neck pain for many years as a result of a neck injury sustained in a Jeep accident on patrol in Korea. The July 2011 statements provide no indication that the Veteran's sister or son witnessed the in-service injury or that they are qualified to render a medical opinion about the etiology of the Veteran's neck condition. The Board acknowledges that the Veteran is competent to report symptoms as they come to him through his senses. Further, his sister and son are competent to report that they assist the Veteran in his daily tasks due to his purported neck disorder symptoms. That notwithstanding, lay persons are not competent to provide evidence on questions of etiology to disorders such as DDD, DJD, and spinal stenosis, which require x-rays and MRI to even diagnose. See Layno, 6 Vet. App. at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person); see also Rucker, at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Here, the Board finds that the Veteran, his sister, and his son do not have the education, training, or experience to provide a competent opinion as to the etiology of his disorders. Instead, the Board finds the December 2011 VA medical opinion to be the most competent and probative evidence of record. Based on the evidence of record, the Board finds that the weight of the competent and probative evidence is against a finding of relationship between the Veteran's current cervical spine disability and the in-service motor vehicle accident. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a neck condition, to include degenerative DJD, DDD, and spinal stenosis of the cervical spine, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a neck condition, to include degenerative DJD, DDD, and spinal stenosis of the cervical spine is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs