Citation Nr: 1329174 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 11-18 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a cervical spine disability, including residuals of a fractured vertebra (cervical spine disability). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active service from April 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In July 2012, the Veteran testified at a Board videoconference hearing before the undersigned Veterans' Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The Veteran's appeal was last remanded by the Board in May 2013 in order to obtain a VA opinion as to whether it was at least as likely as not that his cervical strain with moderate, multilevel degenerative spondylosis of the cervical spine was caused by his active duty, has continued since service, or manifested itself to a compensable degree in the first post-service year. The requested opinion was provided in June 2013. Accordingly, the Board finds that there has been substantial compliance with the directives of the May 2013 Remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). 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). FINDING OF FACT The Veteran's current cervical spine disabilities are not the result of a disease or injury to the back or neck in service, and spondylosis of the cervical spine did not manifest itself within one year of separation from active duty in December 1945. CONCLUSION OF LAW A cervical spine disability was not incurred in active service, and arthritis of the cervical spine may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See 38 U.S.C. § 5103(a). The Board finds that the RO's October 2009 correspondence provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, 19 Vet. App. at 490. Moreover, this 38 U.S.C.A. § 5103(a) notice was provided prior to the initial adjudication of the claim. As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's available service records as well as his post-service treatment records. Furthermore, the Veteran was provided a VA spine examination in November 2012, and an addendum opinion was obtained in June 2013. The Board finds that the VA opinion obtained is adequate, as it is based on a reading of relevant medical records in the Veteran's claims file. The examiner considered all of the pertinent evidence of record and provided a rationale for the nexus opinion on file. There is adequate medical evidence of record to make a determination on the service connection issues in this case. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As mentioned above, the Veteran testified at a Board videoconference hearing in July 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. The Veteran was assisted at the hearing by an accredited representative from AMVETS. The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether any current disability is related to service. They also asked questions to draw out the current state of the Veteran's disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. 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 service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition, certain specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that he currently has residuals of a cervical spine fracture resulting from an injury incurred during a 1943 in-service training exercise at the University of Arizona when he struck his neck and head into the bank of a ditch. The medical evidence of record clearly shows current disabilities of the cervical spine. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Specifically, he has been diagnosed as having cervical strain with moderate, multilevel degenerative spondylosis of the cervical spine. A review of the Veteran's treatment records does not show treatment for head or neck injuries, nor does it show complaints of cervical spine symptomatology or diagnosis of a cervical spine disorder. In examinations conducted in October 1942 and May 1945, the Veteran was found to be physically qualified for service. His bones and joints were within normal limits, except for asymptomatic pes planus. Similarly, in December 1945, the Veteran was examined and found physically qualified for separation from service. The only defect noted at that time was pes planus. However, although the Veteran conceded that he did not seek treatment for a cervical spine disability while in service, he claims that he first sought treatment in 1946 with his private physician in Lincoln, Nebraska, following his separation from service. He alleges that he had been suffering from headaches and neck pain since the 1943 incident. The Veteran did not file a claim for entitlement to service connection for a cervical spine disability until October 2009, approximately 64 years following his separation from service. Pursuant to the Board's November 2012 Remand instructions, the Veteran was provided with a VA examination in November 2012, at which time he was diagnosed as having cervical strain with moderate, multilevel degenerative spondylosis of the cervical spine. X-rays revealed moderate, multilevel degenerative spondylosis with no acute osseous abnormalities. However, the examiner opined that it was less likely than not that the Veteran's current cervical spine disability was caused by his active duty or that it continued since service. The examiner explained that the Veteran reported multiple possibilities for a neck injury, including diving headfirst into a bank, wrestling, running, and boxing. Significantly, the medical records did not support chronicity of neck pain, nor did they support an in-service neck injury. The separation examination was silent for neck problems. The examiner also opined that it was less likely than not that any arthritis of the cervical spine manifested itself to a compensable degree in the first year following service. The examiner's rationale for this conclusion was that, "Veteran reports that he never required evaluation by a physician for his neck." However, in its May 2013 Remand, the Board emphasized that the November 2012 VA examination report conflicted with the multiple times in the record, including at his July 2012 hearing, in which the Veteran explicitly indicated that, although he did not seek treatment for a cervical spine disability while in service, he sought treatment for his neck in 1946 with his private physician in Lincoln, Nebraska, following his separation from service, at which time he was informed that he injured a vertebra in his neck. As such, the Board remanded the issue in order to obtain an addendum opinion. Pursuant to the Board's May 2013 Remand instructions, an addendum VA opinion was obtained in June 2013, at which time the VA physician who conducted the November 2012 examination opined that it was less likely than not that the Veteran's diagnosed cervical strain with moderate, multilevel degenerative spondylosis of the cervical spine was caused by his active duty service, had continued since service, or had manifested itself to a compensable degree in the first post-service year. Rather, the physician explained that the Veteran's cervical disabilities were most likely related to age. With increasing age, a large proportion of the population exhibit radiological signs of discopathy or spondylosis, leading to constriction of the spinal canal, usually in the cervical or lumbar spine. Moreover, risk factors for cervical spondylosis include age (as it is a normal part of aging, and the Veteran is 90 years old) and occupation (with certain jobs placing extra stress on the neck such as overhead work, and the Veteran reported performing telephone company installations for 40 years following service). The VA physician stated that, despite the Veteran's claim of being treated for a cervical spine disability in 1946, there were no records found of a neck disorder in 1946. Specifically, there was no evidence of record found detailing the Veteran's alleged treatment in Lincoln, Nebraska, by a private physician in 1946. Moreover, the VA physician found that the medical records did not support chronic neck problems in service or for many years following service. Hence, the only evidence linking the Veteran's current cervical spine disabilities to his service is his own lay contention. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder). Competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); but see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). However, the Board finds that the question of whether an alleged cervical spine injury incurred in 1943 resulted in the currently-diagnosed cervical strain with moderate, multilevel degenerative spondylosis of the cervical spine is a medical matter requiring medical evidence for its resolution, well beyond lay expertise. Degenerative disease of the spine clearly is not one susceptible to lay diagnosis as it is not observable and requires a X-ray or magnetic resonance imaging or other expertise to diagnose. The Board consequently finds that the Veteran is not competent to provide an opinion as to etiology or diagnosis. The Federal Circuit held in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that service connection under 38 C.F.R. § 3.303(b) based on continuity of symptomatology is only available for those chronic diseases that are listed in 38 C.F.R. § 3.307. Arthritis is a listed chronic disease in 38 C.F.R. § 3.307. However, although the Veteran now claims continuity of symptomatology of his neck problems since 1943, his statements in this regard are not credible or persuasive because they are inconsistent with the objective evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."), citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992). Concerning this, although the Veteran now claims a continuity of headaches and neck pain since 1943, he has only articulated these symptoms to VA since filing his claim for entitlement to service connection in October 2009, approximately 64 years after his separation from service and 66 years since the alleged injury. As discussed earlier, in December 1945, the Veteran was examined and found physically qualified for separation from service. The only defect noted at that time was pes planus, and his neck and extremities were otherwise found to be within normal limits. Moreover, although the Veteran filed a claim for entitlement to service connection for a dental condition in July 1950, only 4 years following his separation from service, he did not file a claim for entitlement to service connection for a cervical spine disability, let alone make any mention of cervical spine symptomatology, at that time. Therefore, the Veteran's statements regarding etiology do not constitute competent evidence on which the Board can make a service connection determination and his statements regarding continuity of symptomatology are not credible. The medical evidence in this case relevant to the etiology of the current cervical spine disabilities, specifically, the June 2013 VA examiner's opinion, reflects that it was less likely than not that the Veteran's diagnosed cervical strain with moderate, multilevel degenerative spondylosis of the cervical spine was caused by his active duty service or had continued since service. Thus, the Board concludes that the preponderance of the evidence is against the claim for service connection for a cervical spine disability. Finally, the Board notes that the evidence does not establish in this case that arthritis of the cervical spine manifested itself to a compensable degree within a year after the Veteran's separation from active duty in December 1945. To the contrary, the June 2013 VA examiner's opinion explicitly stated that it was less likely than not that the Veteran's diagnosed cervical strain with moderate, multilevel degenerative spondylosis of the cervical spine had manifested itself to a compensable degree in the first post-service year. Accordingly, service connection for arthritis of the cervical spine may not be granted on a presumptive basis. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309(a). The preponderance of the evidence is against the Veteran's claim, therefore, the benefit of the doubt provision does not apply and the Board concludes that service connection for a thoracolumbar or cervical spine disability is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). ORDER Entitlement to service connection for a cervical spine disability, including residuals of a fractured vertebra, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs