Citation Nr: 1330494 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 05-32 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from March 1975 to March 1979, with additional periods of reserve military service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 decision of the Waco, Texas, Regional Office (RO). On his September 2005 Appeal, the Veteran requested a Board hearing in connection with his appeal; however, in July 2008 statement, he properly withdrew that request. 38 C.F.R. §§ 20.703, 20.704 (2012). The Board previously remanded the matter for additional development in November 2008, December 2010, April 2012, and February 2013. FINDING OF FACT A cervical spine disability was not shown to have been present in service; was first documented more than one year after service; and is unrelated to an injury, disease or event in active or reserve service. CONCLUSION OF LAW The criteria to establish service connection for a cervical spine disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to assist and notify VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. March 2004, April 2004, December 2008, February 2010, May 2012, October 2012, and February 2012 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a June 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any further private/VA treatment records pertinent to the appeal VA should seek to obtain on his behalf. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). July 2005 and January 2011 VA examinations were conducted but neither is adequate for rating purposes. In February 2013, the appeal was remanded to obtain an adequate examination and opinion but the Veteran failed to appear for that or subsequently scheduled examinations on March 17, 2013, and April 18, 2013. Moreover, neither he nor his representative has provided good cause for failing to appear for scheduled examinations. Wood v. Derwinski, 1 Vet. App. 190 (1991). Because of his failure to cooperate in the development of the claim, only the evidence of record will be considered in adjudicating the matter. The record does not indicate that there is any additional evidence, relevant to the issue decided, that is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Thus, there is no evidence 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. Cervical spine disability 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). 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, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. 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, supra. An August 1975 service treatment record reflects the Veteran's treatment after being involved in a motor vehicle accident; his complaints of neck/cervical spine symptoms; and his diagnosis of general muscular skeletal pain. Active service treatment records are otherwise negative of any neck/cervical spine complaint, treatment, or diagnosis. A June 1985 reserve service treatment record documents the Veteran's neck/cervical spine complaints, after sustaining trauma to his head. A cervical spine disability was not diagnosed at this time. A June 1987 reserve service treatment record details the Veteran's follow-up treatment in connection with a March 1987 diagnosis of cervical strain; however, the medical professional determined that the condition had resolved and that the Veteran was fit for duty. The Veteran was separated from reserve service because diagnosed chronic lower back pain and anxiety rendered him unfit for duty, as documented in the March 1997 reserve medical separation documents. The supporting documents indicate the Veteran's motor vehicle accident related diagnosis of cervical strain was fully resolved and would not result in long- or short-term disabilities. At his July 2005 VA examination, the Veteran placed the onset of neck/cervical spine symptoms in 1987 but the report does not detail the cause or circumstances related to the symptoms. The examiner diagnosed cervical strain but did not provide an etiological opinion. The January 2011 VA examination details the Veteran's relevant medical history and account of symptom; however, the examiner concluded a cervical spine diagnosis was not warranted nor was any such disability related to any period of service. Merits The Veteran provides a competent account of symptoms; however, he lacks the requisite training and expertise and is not competent to provide an etiological opinion or diagnose a cervical spine disability. The probative evidence indicates that a cervical spine disability has not been continuously present since separation from active service. A June 1987 treatment record and the supporting medical records related to his March 1997 reserve medical separation both reflect the resolution of discrete cervical spine diagnoses. The claim file documents the Veteran's regular and extensive treatment for a lumbar spine disability and, at best, sporadic cervical spine complaints and treatment. A June 1985 reserve service treatment record is the first credible evidence of the Veteran's post-active service neck/cervical spine complaints or treatment, which is approximately 6 years after separation from active service. There is no probative evidence of record that the Veteran has a current chronic cervical spine disability related to any period of service, or that is caused or aggravated by a service-connected disability. VA attempted on multiple occasions to obtain adequate examination reports but without success. The first two examinations were inadequate and the Veteran without good cause failed to show for the next three scheduled examinations. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for a cervical spine disability is not warranted. ORDER Service connection for a cervical spine disability is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs