Citation Nr: 1331470 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-15 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran had active service from May 1991 until July 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In May 2010, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing held at the RO. A transcript of the hearing has been associated with the claims file. At this juncture, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who presides over a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the May 2010 Board hearing, the undersigned Veterans Law Judge's questions and the Veteran's oral testimony focused on the elements necessary to substantiate the Veteran's claim for service connection for a cervical spine disability and noted the elements of service connection that were lacking to substantiate the Veteran's claim including the need for current disabilities that are shown to be related to service. The Veterans Law Judge asked the Veteran questions about in-service and post service symptoms and treatment. Therefore, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). At the time of the May 2010 Travel Board hearing, the Veteran essentially indicated her desire to seek a disability rating in excess of 30 percent for her service-connected dysthymic disorder disability. The issue of an increased rating for this disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In a November 2010 Board decision, the Board found that new and material evidence had been received to reopen the claim for service connection for a cervical spine disability. The issue of service connection for a cervical spine disability was remanded to the RO for additional development. The Board finds that the agency of original jurisdiction substantially complied with the mandates of the November 2010 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). The Veteran was provided a VA examination in January 2011 and a VA medical opinion was obtained in December 2011. The Board concludes that there has been substantial compliance with the remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran sustained a neck injury in service, cervical strain and facet syndrome at C6 to T3 were diagnosed, and she experienced symptoms of neck pain in service. 2. The Veteran did not continuously manifest symptoms of neck pain in the years after service. 3. The cervical spine disability manifested by degenerative joint disease and degenerative disc disease did not have onset during the Veteran's active service, did not manifest within one year of separation from active service, and is not etiologically related to active service. CONCLUSION OF LAW The criteria for the establishment of service connection for cervical spine disability manifested by degenerative joint disease and degenerative disc disease are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the 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); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2008, prior to the initial adjudication of the claim. The February 2008 letter provided notice with regard to the evidence and information needed to substantiate a claim for service connection, and informed the Veteran of which information and evidence she was to provide to VA and which information and evidence VA would attempt to obtain on her behalf. VA informed the Veteran it had to obtain any records held by any federal agency. The letter also informed the Veteran that on her behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that she could obtain private records herself and submit them to VA. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the February 2008 letter explained the type of evidence necessary to establish a disability rating and effective date for the claim on appeal. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment records and all available VA treatment records dated from 2007 to 2011. The Veteran did not identify any treatment for the claimed cervical spine disability and she did not submit any releases or authorizations in support of her claim. VA afforded the Veteran an adequate examination in January 2011 and obtained a medical opinion in December 2011. The 2011 VA examination and medical opinion are adequate because the examination was performed by a medical professional based on review of claims file and a solicitation of history and symptomatology from the Veteran, and an examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA physicians provided a medical opinion as to whether the Veteran's cervical spine disability was related to her period of active service including the medical treatment in service. The VA physicians cited the evidence that supported the opinion. Neither the Veteran, nor her representative, has challenged the adequacy of the 2013 medical opinions and examination obtained for this issue. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board finds that no reasonable possibility exists that any other assistance would aid in substantiating the claim and VA met its duty to assist the Veteran. 2. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). As the condition at issue of arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for certain chronic diseases such as arthritis if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence; therefore, the veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against a veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service Connection Analysis The Veteran contends that she injured her neck in service and has had neck pain since active service. She asserts that service connection for a cervical spine disability is warranted. Based upon a review of all the lay and medical evidence, the Board finds the weight of the competent and credible evidence shows that the current cervical spine disability did not manifest in service or to a compensable degree within one year of service separation and is not otherwise related to active service. The Board finds the weight of the competent and credible evidence shows that while the Veteran sustained an injury to her cervical spine in service and she had chronic symptoms of pain in service and soon after service, the Veteran did not have continuous symptoms or medical treatment in the years after service, and the current cervical spine disability is not medically related to active service. The medical evidence establishes that the Veteran has a current cervical spine disability. VA treatment records and diagnostic reports show a diagnosis of degenerative disc disease of the cervical spine. See the January 2011 VA examination report and the May 2008 Magnetic Resonance Imaging (MRI) report. The December 2011 VA medical opinion notes that the March 2011 MRI of the cervical spine revealed unchanged degenerative joint disease. There is competent and credible evidence that the Veteran experienced symptoms of neck pain in service. Service treatment records show that in September 1993, the Veteran had sought medical treatment in the emergency room the day after she had been doing pushups. That morning, she felt a stiffness in her neck . The diagnosis was cervical strain. The veteran was given a flexible collar, muscle relaxants, and mild analgesics and she was told to return if the pain did not subside. A February 1994 service treatment record from the troop medical clinic indicates that the Veteran reported having neck pain on and off for approximately 2 months. The diagnosis was facet syndrome at C6 to T3. The Veteran did not report chronic residuals or complaints of cervical spine symptomatology at the time of discharge. The Board finds that the weight of the competent and credible evidence establishes that the Veteran injured her neck in service and she had recurrent or persistent symptoms of neck pain at least from September 1993 to February 1994. As noted, the Veteran did not report having neck pain or other symptoms upon service separation. The Veteran filed her initial claim for service connection for a cervical spine disability in July 1994, at which time she reported having chronic neck pain. She was afforded a VA examination in October 1994. The October 1994 VA general medical examination report is negative for a diagnosed cervical spine disorder. The October 1994 VA radiology examination report revealed no evidence of fractures, dislocations or abnormalities of the cervical spine. A cervical spine disability was not detected upon VA examination in October 1994. There is no competent and credible evidence of a diagnosis of degenerative joint disease or degenerative disc disease of the cervical spine within one year from service separation in July 1994. In December 2007, the Veteran filed the claim to reopen service connection for a cervical spine disability. She stated that she hurt her neck in service and she still suffered from severe pain. The Veteran did not identify any treatment for the claimed cervical spine disability and she did not submit any releases or authorizations in support of her claim. Review of the record shows that there is no evidence of treatment for the claimed cervical spine disability from 1994 until 2008, when the Veteran sought treatment at VA. Such a lengthy time interval between service and the earliest post service clinical documentation of the disability is of itself one factor for consideration against a finding that these diseases are related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A March 2008 VA joints examination report documents the Veteran's report of in-service neck pain; the assessment was recurrent cervical pain. Also included in these records is a May 2008 MRI study report which revealed the presence of significant degenerative changes in the cervical spine. A subsequent August 2008 medical record reflects a diagnosis of cervical degenerative disease. During the May 2010 Board hearing, the Veteran provided testimony as to her belief that her current cervical spine disorder is related to her military service. She reported that she first experienced neck pain during her period of active service and that she was given medication to treat her symptoms. The Veteran testified that her neck pain continued following her separation from service and that she has received treatment for her symptoms intermittently, without much relief. The January 2011 VA examination report indicates that the Veteran reported having pain in her neck since February 1994. The Veteran is competent to state that she has observable symptoms such as neck pain. See Jandreau, 492 F.3d at 1376-77. However, the Board finds that the Veteran's statements that she has had neck pain since service to have limited credibility because these statements were made over 10 years after service and were made in connection with her claim for compensation. In weighing credibility, VA may consider interest, bias, self interest, consistency with other evidence of record, and desire for monetary gain. Caluza v. Brown, 7 Vet. App. 498 (1995). Finally, the Board finds that the weight of the evidence demonstrates that degenerative joint disease and degenerative disc disease of the cervical spine are not caused by any in-service event or injury and are not medically related to service. The Veteran was afforded a VA examination in January 2011. The VA examiner reviewed the claims folder including the service treatment records, considered the Veteran's reported medical history, examined the Veteran, and offered an opinion as to the etiology of the claimed cervical spine disability. The VA examiner opined that the cervical spine disc disease and C5-C6 level spinal cord deformity cannot of themselves be directly related to the events that occurred in 1993 and 1994 while the Veteran was on active duty. In a December 2011 addendum opinion, another VA physician reviewed the claims folder and the January 2011 VA examination report. The VA examiner opined that it was less likely than not that the claimed cervical spine disability was incurred in or was caused by the claimed in-service injury. The VA physician stated that the rationale for the medical opinion was that the service treatment records show only two visits for treatment for neck pain, which was treated conservatively and resolved, as evidenced by no further service treatment record notes. The VA physician noted that there were no notations in the medical records concerning neck pain until 2008. The VA physician stated that there was no chronicity after the in-service treatment as evidenced by no follow-up. The VA physician further stated that the findings of degenerative joint disease changes on the current MRI were out of proportion to any in-service event. The Board finds the 2011 VA medical opinions to have great evidentiary weight as the opinions reflect a comprehensive and reasoned review of the entire evidentiary record. The VA physicians reviewed the claims folder including the service treatment records and the Veteran's medical history, and/or examined the Veteran before rendering the medical opinion. The VA physicians specifically addressed the service treatment records showing treatment of the cervical spine disability in service and discussed the examination findings and considered such findings when rendering the medical opinion. The VA physicians also considered the current diagnosis and whether such diagnosis was consistent with the in-service injury and treatment. Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The medical opinion is based on sufficient facts and data. In Nieves-Rodriguez, 22 Vet. App. 295, the Court held that guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. For these reasons, the Board has assigned great probative weight to the opinion of the VA physicians and finds that it outweighs the unsupported lay theories and lay statements of the Veteran and establishes that the Veteran's degenerative joint disease and degenerative disc disease of the cervical spine are not related to active service. The Veteran herself has related her degenerative joint disease and degenerative disc disease of the cervical spine to her active service. As noted, the Veteran, as a lay person, is competent to describe observable symptoms such as pain. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the etiology and onset of arthritis or disc disease falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. Lay testimony on the question of relating the current degenerative joint disease and degenerative disc disease of the cervical spine to service is not competent in the present case, because the Veteran is not competent to state that this disease was incurred in service. See Davidson v. Shinseki, 581 F.3d 1313, 316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011) (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). Such diagnoses requires clinical or diagnostic testing such as x-ray examination. X-ray examination soon after service were negative. Additionally, an opinion of etiology would require knowledge of the complexities of the musculoskeletal system and the various causes of arthritis, and would involve objective clinical testing that the Veteran is not competent to perform. The Board finds that the Veteran's lay statements are outweighed by the VA medical opinions dated in January 2011 and December 2011. The Board finds the weight of the competent and credible evidence shows that the degenerative joint disease and degenerative disc disease of the cervical spine did not manifest in service or within one year of service separation and are not related to active service. Substantial probative weight is afforded to the October 1994 VA x-ray examination which shows no evidence of cervical spine degenerative joint disease or disc disease or other abnormality and the 2011 VA medical opinions which did not find an in-service etiology. Significantly, the December 2011 VA medical opinion indicates that the current cervical spine disability was out of proportion to the in-service event. Further, the lack of any evidence of medical treatment of the cervical spine disability from 1994 to 2008 weighs against the claim. The Board finds that there is component and credible evidence of evidence of a neck injury in service and persistent or recurrent symptoms of neck pain in service, particularly from September 1993 to February 1994. The Veteran also asserts that she has had neck pain since the injury in service. However, several reasons are found for rejecting continuity of symptomatology as a viable theory of entitlement in this case. The Veteran did not report neck pain upon service separation examination. She did not report symptoms of neck pain until she filed her claim for compensation benefits in 2008. A prolonged period without medical complaint can be considered in analyzing a service connection claim. Maxson v. West, 12 Vet. App. 452 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board finds that the Veteran's statements that she had neck pain symptoms continuously since service are outweighed by the prolonged period without medical treatment and are outweighed by the findings of the October 1994 VA examination and the 2011 VA medical opinions and examination findings. The Board finds the weight of the competent and credible evidence shows that the degenerative joint disease and degenerative disc disease of the cervical spine did not manifest in service or within one year of service separation and is not related to active service. Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.303(a) is not warranted. The Board also finds that the weight of the competent and credible evidence establishes while the Veteran experienced symptoms of neck pain during service, she did not have continuous neck symptoms since service, and the degenerative joint disease and degenerative disc disease of the cervical spine first manifested many years after service separation and are not related to disease or injury in service. Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted. For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for degenerative joint disease and degenerative disc disease of the cervical spine including as a presumptive disease and on a direct basis, and the claim must be denied. ORDER Service connection for degenerative joint disease and degenerative disc disease of the cervical spine is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs