Citation Nr: 1331336 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-03 622A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from November 2000 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2007 and July 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that in relevant part, denied service connection for a cervical spine disability and a lumbar spine disability. The Board remanded the issues in November 2012 for further development. In a July 2013 rating decision, the RO granted service connection for degenerative disc disease of the lumbar spine and assigned a 10 percent rating; granted service connection for radiculopathy of the right lower extremity and assigned a 10 percent rating; and granted service connection for radiculopathy of the left lower extremity and assigned a 20 percent rating. This represents a full grant of the benefit sought on appeal for this issue; hence, it is no longer in appellate status and will be addressed herein. The Board is satisfied that the requested development for the cervical spine claim was accomplished. Hence, further remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (only substantial, and not strict, compliance with the terms of a Board remand is required). FINDING OF FACT A chronic cervical spine disability is not shown in service, and the most probative evidence fails to shows that a diagnosed neck disorder, to include arthritis, had its onset in service, was manifest within one year of discharge, or is otherwise related to the Veteran's period of active duty, including an in-service injury. CONCLUSION OF LAW A chronic cervical spine disability was not incurred in or aggravated by active service, and neither arthritis nor stenosis may be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). The United States Court of Appeals for Veterans Claims (Court) has held that VA must inform the claimant of any information and 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). The Court has 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. Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); 38 U.S.C. § 5103(a). In a letter dated in September 2006, prior to the rating on appeal, the Veteran was provided notice regarding what information and evidence was needed to substantiate his service connection claims, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claims. The correspondence also informed the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection or increased ratings are awarded. The Veteran has not demonstrated any other error in VCAA notice, therefore the presumption of prejudicial error as to such notice does not arise. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Accordingly, the Board finds that the duty to notify provisions have been satisfactorily met, and neither the Veteran nor his representative has pointed out any specific deficiency to be corrected. The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records, available VA medical records and private medical records for which an appropriate release was received are in the file. Pursuant to the November 2012 remand, the Veteran was afforded another VA examination in July 2012 to determine the etiology of his neck problem. The examiner reviewed the Veteran's past medical history, documented his current medical conditions, considered the appropriate contentions and evidence (including the lay statements), and rendered appropriate diagnoses and opinions with supporting rationale. Hence, the Board finds that the opinion is adequate for adjudication purposes. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Consequently, the Board finds that VA's duty to assist has also been met in this case, and further remand would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540 (1991) (a remand is inappropriate where there is no possibility of any benefit flowing to the veteran). II. Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Evidence of continuity of symptomatology of a disability identified in 38 C.F.R. § 3.309(a) from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Certain chronic disabilities, such as arthritis, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). 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 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Additionally, competency of evidence must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). It is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the preponderance of the evidence is against the claim for service connection for a cervical spine back disability because the most probative evidence of record, the July 2013 VA examination report, concluded that the Veteran's currently manifest degenerative disc disease of the cervical spine was not related to his military service, including the in-service complaints of neck pain, but was more likely due to genetic factors, aging, and cumulative life activities. Winsett v. West, 11 Vet. App. 420 (1998). That opinion was based on a full review of the record, including the service treatment reports, the Veteran's statements related to his paratrooper experiences, his reports of continuity of symptomatology, and a thorough clinical evaluation. Notably, the examiner explained that current studies performed by the United States Army at trauma centers showed that traumatic arthritis associated with significant trauma will be established within three years from the date of injury. However, the Veteran had a normal cervical spine x-ray in February 2008, almost four years after his release from active duty. See Bloom v. West, 12 Vet. App. 185 (1999). The medical evidence reflects that the Veteran was seen in service on a couple of occasions for complaints of neck pain in December 2003 and January 2004. However, upon examination in January 2004, the cervical spine was found to be clinically normal. Additionally, the Board observes that in a Report of Medical Assessment, completed in January 2004, the Veteran reported that he injured his left knee on an airborne jump in 2001; however, he did not mention any injury to his neck. Additionally, upon evaluation in October 2006, there were no complaints of neck pain and an x-ray in February 2008 was normal. In fact, the examiner at that time noted that despite subjective complaints related to the cervical spine, there were no objective findings to support a diagnosis of a neck disability. The Veteran's degenerative disc disease of the cervical spine was initially demonstrated by objective evidence in June 2010, more than six years after the Veteran's discharge from military service. The Board notes that a prolonged period without documented medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). To the extent that the Veteran has alleged continuity of symptomatology since discharge, the Board finds that he is competent to report about neck pain during service and after his discharge. Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465 (1994) (veteran is competent to report symptoms because that requires only personal knowledge, not medical expertise, as it comes to him through his senses). Although lay persons are competent to provide opinions on some medical issues, the specific disability in this case arthritis/degenerative disc disease falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Arthritis and degenerative disc disease are complex diseases that require specialized training and medical diagnostic testing for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology alone. Therefore, the Veteran's statements cannot be accepted as competent evidence sufficient to establish service connection for a chronic disease listed in 38 C.F.R. § 3.309(a) pursuant to 38 C.F.R. § 3.303(b). Additionally, the Board finds that the Veteran's assertions are not credible in light of the contemporaneous medical reports that failed to show that the Veteran had any chronic cervical spine upon separation, he did not report any neck injuries at the time of his separation, and x-rays in February 2008 were normal. Consequently, the Board finds that the objective contemporary clinical evidence pertaining to the Veteran's medical problems is more probative than later unsupported statements made in conjunction with a claim for VA compensation benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Consequently, the Board finds that no probative weight can be assigned to the statements regarding experiencing neck pain since service. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a cervical spine disability is denied. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs