Citation Nr: 1329357 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-37 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for cervical myositis and cervical degenerative joint disease (cervical spine disability). 2. Entitlement to service connection for right hip disability. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from March 1953 to March 1955. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a right hip disability. A May 2010 rating decision denied service connection for a cervical spine disability. The Board remanded the Veteran's claims in May 2013. As the Board has remanded the Veteran's claims, the Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, however, the Board does find substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). Since the May 2013 Board remand, the RO granted the Veteran's claim for service connection for status post lumbar laminectomy residuals (paravertebral, myositis, degenerative changes) in a July 2013 rating decision. As such, this issue is no longer on appeal. 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 preponderance of the competent and credible evidence shows that the Veteran's cervical spine disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 2. The preponderance of the competent and credible evidence shows that the Veteran's right hip disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a right hip disability have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. With regard to the right hip disability, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. As to the cervical spine disability, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2010 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board notes that in a July 2013 memorandum, it was determined that Social Security medical records were not available for review. Requests were made by VA to the Social Security Administration (SSA) for records pertaining to the Veteran, but a response was received from the SSA in May 2013 reflecting that there were no medical records on file regarding the Veteran. The RO advised the appellant of the negative response in June 2013. In view of the foregoing, the Board finds that VA has no further duty to assist with respect to obtaining records from the SSA. See 38 C.F.R. § 3.159(c)(2); Counts v. Brown, 6 Vet. App. 473, 477 (1994) (noting that "VA has no duty to seek to obtain that which does not exist."). All relevant, identified, and available evidence has been obtained. Aside from the SSA records, the appellant has not referred to any additional, unobtained, relevant evidence. VA has also obtained medical examinations with regard to the cervical spine and right hip claims. VA appropriately examined the medical history of the Veteran's claimed disabilities for compensation purposes addressing the claimed disorders. Findings from the examination reports are adequate for the purposes of deciding the claims on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As noted above, this case was previously before the Board in May 2013. In the May 2013 remand, the Board instructed that all documents pertaining to an award of SSA disability benefits be obtained. As noted above, it was determined that SSA records were not available. The Board instructed that the Veteran be notified that he may submit lay statements from himself and from individuals who have first- hand knowledge of the nature, extent and severity of his right hip and cervical spine problems during and since service. A May 2013 letter notified the Veteran of this information. The Board instructed that the Veteran's treatment records since February 2010 be obtained. The Veteran's VA treatment records since February 2010 were obtained in May 2013 and July 2013. The Board instructed that the Veteran undergo VA examinations. The Veteran underwent such examinations in June 2013. The directive of the May 2013 remand has thus been accomplished. Again, the Board has a duty to ensure substantial compliance with its remand directives. See D'Aries, 22 Vet. App. at 9. As the requested development has been completed, the case may proceed without prejudice to the Veteran. Stegall, 11 Vet. App. at 271. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal decided herein is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Criteria & Analysis 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). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall 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. 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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). 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."). Cervical Spine Disability Service treatment records reflect that, in May 1953, the Veteran was wrestling with companions and was grabbed around the neck. He began to notice pains and stiffness that increased so that he was unable to turn his head. He was diagnosed with traumatic myositis of cervical muscles. In June 1953, he was treated for neck pain. On June 5, 1953, the Veteran had less stiffness in his neck. The Veteran was discharged from treatment on June 6, 1953. A Report of Medical Examination dated in March 1955 reflects that the Veteran's spine was clinically evaluated as normal. It was noted on the March 1955 Report of Medical Examination that the Veteran made no complaints of a medical nature at time of examination. VA treatment records dated in November 1977 reflect that the Veteran was assessed with a chronic neck sprain. Private treatment records from Dr. Dreyfous dated in February 1982 reflect that the Veteran was doing fine following back surgery until January 7, 1982 when he tried to change a battery and felt severe neck pain after lifting the battery. Dr. Dreyfous diagnosed cervical osteoarthritis with compretion neuropathy. Multiple VA treatment records in 1986 reflect that the Veteran complained of cervical spine pain. The Veteran complained of severe acute cervical pain in April 1995. The Veteran underwent a VA examination in April 2010. He reported a history of neck pain since 1953 when he injured his neck wrestling with an instructor and was treated at the dispensary and for several days with physical therapy. He stated that he had neck pain and decreased range of motion which improved after treatment, although he had bouts of neck pain throughout the years after release from military service. He reported that he was unable to seek treatment since he had to work to support his family. Following physical examination, the examiner diagnosed mild to moderate cervical spondylosis. The examiner opined that cervical myositis and cervical degenerative joint disease are not at least as likely as not due to cervical strain in military service in May 1953. The examiner noted that the Veteran received treatment on June 4, 1953 and June 6, 1953, which documented improvement of neck pain and range of motion. The examiner opined that the neck strain was at least at likely as not acute and transitory with full recovery with treatment in the military service. The examiner noted that the claims file was silent for a neck condition or neck pain until 1982 when thereafter there were multiple notes after an injury to the neck when the Veteran lifted a battery. The examiner noted that the claims file was silent for neck pain since discharge from military service up until the 1980's. VA treatment records dated in March 2011 reflect that the Veteran was assessed with cervical stenosis with myelopathy. In June 2011, the Veteran was diagnosed with cervical myelopathy. The Veteran had another VA examination in June 2013. He reported that he developed cervical pain associated to heavy weight handling many years ago. Following physical examination, the examiner diagnosed cervical spondylosis, discogenic disease with associated cord compression and myelopathic changes. The examiner opined that the claimed cervical spine condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the claims file has evidence of a cervical spasm condition during service that was transitory and which did not correlate with present cervical spine findings. After review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a cervical spine disability. Although the Veteran has a current diagnosis of a cervical spine disability, the most probative evidence indicates that such disability is not related to active service. The June 2013 VA examiner specifically addressed whether the Veteran's current cervical spine condition is related to service and concluded that it is less likely than not that this condition was caused by service. The examiner provided an adequate rationale for this opinion, noting that the cervical problem in service was transitory and did not correlate with the cervical spine findings on examination. Thus, such opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). There is no medical opinion to the contrary. The Veteran has reported having cervical spine pain since 1953. However, other than the one incident in service for which treatment ended in June 1953, his service treatment records reveal no complaints or treatment for any cervical spine disability. Moreover, the March 1955 Report of Medical Examination for transfer purposes reflects that the Veteran did not make any complaints of a medical nature. Thereafter, there is no record of relevant complaints for years. Moreover, the Veteran's contentions as cervical spine complaints have been inconsistent. Although he now reports having had recurrent cervical spine complaints since service, the March 1955 Report of Medical Examination is a contemporaneous record that reflects that he did not have any cervical spine problems, which is inconsistent with his current account of having had recurrent cervical spine complaints since service. Further, a February 1982 private medical report, which was prepared in conjunction with the Veteran's treatment for neck problems, shows that he reported that he was "doing fine until last Jan. 7, 1982 when he was trying to change a battery and after he lifted it there was severe neck pain and back pain with cramps over the left shoulder and arm." As such, the Board finds his report of recurrent cervical spine problems since service is not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence) The Board also finds it probative that, when the Veteran was invited to provide statements from individuals having knowledge of his claimed cervical spine disability in May 2013, the Veteran did not do so. Although the Veteran contends that his current cervical spine condition is due to service, he is not shown to possess any specialized experience such that he is qualified to render a medical diagnosis or medical opinion concerning the diagnosis or etiology of a cervical spine disability, which involves a complex medical issue. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Spine disabilities require medical testing and expertise to diagnose and to determine the etiology thereof. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current cervical spine disability is also a matter that requires medical expertise to determine. The Board finds that the most probative medical opinion of record with regards to the relationship of the Veteran's cervical spine condition to service is the opinion of the June 2013 VA examiner who has the training and expertise to render such an opinion. Thus, the opinion rendered in the June 2013 VA examination report is entitled to significantly greater weight than the Veteran's lay opinions. In summary, a chronic cervical spine disability was not shown in service, there is no evidence of arthritis of the cervical spine shown during the year following discharge from service, and the most probative evidence of record indicates the Veteran's current cervical spine disability is not related to service, to include the cervical spine complaints noted therein. Thus, the preponderance of the evidence is against a finding of service connection for a cervical spine disability. Right Hip Disability A Report of Medical Examination dated in March 1955 for transfer purposes reflects that the Veteran's lower extremities were clinically evaluated as normal. It was noted on the March 1955 Report of Medical Examination for transfer purposes that the Veteran made no complaints of a medical nature at time of examination. There are no other service treatment records related to a right hip disability. This is strong evidence that as of March 1955, there was no right hip disability. The Veteran underwent a VA examination in June 2013. He reported right hip pain since the late 1990's. Following physical examination, the examiner diagnosed right hip degenerative changes. The examiner opined that the claimed right hip condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the right hip condition is related to degenerative changes, and the claims file is silent for a right hip condition during service of degenerative etiology. The Board finds that the preponderance of the evidence is against a finding of service connection. Initially, the Board notes the Veteran currently contends that he suffered from a right hip disability in service. However, the Veteran's service treatment records make no mention of any right hip complaints. No right hip disability or complaints were found at time of separation. Thereafter, there is no record of relevant complaints for years. Moreover, the Veteran's contentions as to an injury to his right hip have been inconsistent. Although he reports having a right hip disability since service, he reported right hip pain since the late 1990's at the June 2013 VA examination. In short, his account of having a right hip disability since service is inconsistent with the contemporaneous service treatment records as well as his own statements and other evidence of record. Thus, such contentions are not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). The Board also finds it probative that, when the Veteran was invited to provide statements from individuals having knowledge of his claimed right hip disability in May 2013, the Veteran did not do so. To the extent that the Veteran himself believes that there is a nexus between a right hip disability and service, as a lay person, he is not competent to opine on matters requiring medical expertise, such as the etiology of a right hip disorder because it is a complex medical issue. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Here, the most probative evidence addressing whether there is a relationship between the claimed disability and service is the opinion of the June 2013 VA examiner, who after reviewing the record, found no indication of a right hip disability in service or having started in service, but instead related the Veteran's condition to degenerative changes. This opinion was fully informed, clear and consistent with the medical evidence of record. As such, the Board considers it to carry the most evidentiary weight and as it is against the claim, service connection for a right hip disability is denied. In summary, a chronic right hip disability was not shown in service, there is no evidence of arthritis of the right hip shown during the year following discharge from service, and the most probative evidence of record indicates the Veteran's current right hip disability is not related to service. Thus, the preponderance of the evidence is against a finding of service connection for a right hip disability. ORDER Service connection for cervical spine disability is denied. Service connection for right hip disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs