Citation Nr: 1329111 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 06-21 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served in the National Guard from November 1980 to September 1984, in the Army Reserve from May 1986 to September 1986, and had active duty service in the Navy from October 1989 to May 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied service connection for degenerative joint disease of the cervical spine. The Veteran testified at a hearing before the undersigned Acting Veterans Law Judge (AVLJ) in August 2007. A transcript of the hearing is of record. This case was previously before the Board in May 2008, November 2009, and May 2012, when it was remanded for further development. Further, in March 2013 the Board requested a medical expert opinion from a member of the Veterans Health Administration ("VHA opinion") regarding the appellate claim, and the requested opinion was promulgated in July 2013. For the reasons detailed below, the Board finds that the evidence of record warrants the benefit sought on appeal. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT The competent and credible evidence of record reflects it is at least as likely as not that the Veteran developed cervical spondylosis and degenerative disc disease with chronic cervicalgia as a result of his military service. CONCLUSION OF LAW The criteria for a grant of service connection for the Veteran's cervical spine disorder are met. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, and for the reasons detailed below, the Board finds that service connection is warranted for the Veteran's cervical spine disorder. Therefore, no further discussion of VA's duties to notify or assist is warranted in this case as any deficiency is moot. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27). The Veteran is seeking service connection for a neck/cervical spine disorder, which he asserts was caused by one or several in-service incidents. For example, in an April 2005 statement the Veteran claims the first injury to his neck and shoulder occurred in service in 1989 when he slipped on ice and experienced shoulder and neck pain. Although this incident is not documented in the Veteran's service treatment records, he is competent, as a lay person, to describe such an injury and the Board finds his account of such to be credible. Therefore, for purposes of this case, the Board assumes the Veteran did fall on the ice and experience neck and shoulder pain in February 1989, as he alleges in his April 2005 statement. The Veteran also contends that he was hit by a large buoy on his shoulder and neck in September 1993. His service treatment records show an incident in September 1993 where he hit his back and neck on a tool box while stationed on board the USS Nicholson which resulted in contusions and abrasions ranging from the right shoulder to the cervical spine. There is also a "Medevac Summary" dated September 21, 1993 which says the Veteran was complaining of right shoulder discomfort after being hit with a buoy aboard ship. Further, the Veteran is currently service-connected for a right shoulder disorder. In short, the record supports a finding that the Veteran did sustain at least two neck/cervical spine injuries while on active duty. However, despite these injuries, no chronic cervical spine disorder was diagnosed in the service treatment records or for years after his separation from service. Further, the record reflects the Veteran currently has degenerative changes to the cervical spine, which is a complex internal medical condition not subject to lay observation. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Nevertheless, his account of the in-service injuries and resulting symptomatology can support a later diagnosis and opinion by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds that competent medical evidence is necessary to resolve whether the Veteran's current cervical spine disorder was incurred in or otherwise the result of his military service. In this case, the Veteran underwent VA examinations in July 2007 and October 2010, in addition to the July 2013 VHA opinion. The July 2007 VA examination report noted, in part, that a 1992 magnetic resonance imaging (MRI) report showed cervical osteoarthritis and narrowing of intervertebral disk space at C6-7. However, this 1992 report has not been associated with the Veteran's claims file. Moreover, no opinion was expressed regarding the etiology of the Veteran's cervical spine disorder at this examination. As such, this examination report does not address the salient point of whether the Veteran's current cervical spine disability is related to his military service. The October 2010 VA examiner indicated that he was unable to determine whether it was at least as likely as not that the Veteran's current cervical conditions (variously diagnosed as sprain with spasm, spondylosis, and degenerative disc disease) were related to his service without resorting to speculation because he did not have the Veteran's claims file to review. In a December 2010 addendum, the same examiner stated that he reviewed the Veteran's claims file but that there were no changes to his initial report. As the examiner did not provide an opinion on the etiology of the Veteran's current cervical spine condition nor provide an explanation for why he could not provide an opinion without resorting to mere speculation after reviewing the Veteran's claims file, the Board finds that this medical opinion is not probative evidence in the current appeal. In a May 2012 addendum opinion, the same examiner stated that it is less likely as not that the Veteran's current degenerative disc disease, spondylosis, and chronic sprain involving his cervical spine are related to, secondary to, or the result of the Veteran's military service. By way of rationale, the examiner stated that there were no in-service notations concerning the Veteran's cervical spine/ neck and no post-service notations concerning the claimed disorder until 2004 or 2005. The examiner stated the only in-service notations were concerning the Veteran's right shoulder in 1990, 1991, and 1993. The examiner also pointed out that a 1992 MRI of the Veteran's neck was not in the claims file. The Board finds that this opinion has no probative value as it is based on the incorrect factual premise that there was no documentation of a neck injury in service when in fact the September 1993 injury was noted to involve the cervical spine. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). The July 2013 VHA opinion, completed by a spinal neurosurgeon, concluded the Veteran had a diagnosis of cervical spondylosis and degenerative disc disease with chronic cervicalgia. The VHA examiner also summarized the in-service injuries, to include the fact that the September 1993 injuries were severe enough to warrant a cervical X-ray. While there were no records of subsequent complaints of neck pain or neck pain treatment prior to 2005, the VHA examiner stated this did not rule out that the complaints in 2005 were related to the injury in 1993 and therefore service connected. The VHA examiner stated that cervical spine trauma is a known risk factor for development of cervical spondylosis and chronic cervicalgia as well as whiplash like condition which may develop acutely or in a chronic fashion. The VHA examiner further stated that while cervical spondylosis may develop in the absence of trauma, the severity of the trauma sustained in 1993 involving the cervical spine makes it more likely than not that the Veteran would develop the resulting disability of neck pain and cervical spondylosis. Although the VHA examiner believed that causality cannot be established, it was likely related to cervical spine trauma in 1989 and particularly 1993 - within a reasonable degree of medical certainty. Moreover, the VHA examiner cited to various medical treatises in support of this opinion. There are no contrary probative medical opinions of record that weigh against the Veteran's claim. Accordingly, entitlement to service connection for cervical spondylosis and degenerative disc disease with chronic cervicalgia is warranted. ORDER Service connection for cervical spondylosis and degenerative disc disease with chronic cervicalgia is granted. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs