Citation Nr: 1333350 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-19 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, claimed as a neck disability. 2. Entitlement to service connection for right upper extremity radiculopathy, claimed as right shoulder disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from September 1986 to September 1990. This matter comes to the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2011 a Travel Board hearing was held. A transcript of the testimony offered at that hearing has been associated with the record. It is noted that the cervical spine issue was recharacterized based on the diagnoses of record, the Veteran's contentions and the adjudication of the claim by VA in the rating decision, statement of the case and supplemental statements of the case. This matter was last before the Board in February 2013 when it was remanded for further development. That development was substantially completed. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDINGS OF FACT 1. It has not been shown by competent and probative evidence to at least equipoise that the Veteran incurred a cervical spine disorder, including osteoarthritis, in service, that cervical spine osteoarthritis is otherwise attributable thereto, or that cervical spine osteoarthritis manifested to a compensable degree within the first post-service year. 2. It has not been shown by competent and probative evidence to at least equipoise that the Veteran incurred right upper extremity radiculopathy in service, or that right upper extremity radiculopathy is otherwise attributable thereto. CONCLUSIONS OF LAW 1. Service connection for a cervical spine disability, claimed as a neck disability, is not established. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. Service connection for right upper extremity radiculopathy, claimed as a right shoulder disability, is not established. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letters dated in May and July 2007. These letters informed him of how to substantiate a claim for service connection, the allocation of responsibilities between himself and VA, and how ratings and effective dates are assigned. VA has obtained some of the Veteran's service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained a medical opinion as to the etiology of his claimed disabilities, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file. When this matter was before the Board in October 2011 it was remanded to attempt to obtain the Veteran's personnel and service treatment records. The AMC/RO was directed to attempt to obtain the Veteran's personnel records from the National Personnel Records Center (NPRC) and, if unsuccessful, through the Navy's Electronic Military Personnel Records System. In regard to the service treatment records, the AMC/RO was directed to attempt to obtain those records from the NPRC and the Naval Reserve Personnel Center. The AMC/RO attempted to obtain records from each source, but was only able to obtain a few of the Veteran's personnel records and duplicates of his Report of Medical Examination and Report of Medical History dated in December 1985 related to his entrance into service. The Veteran was previously informed by way of a June 2007 that his service treatment records were unavailable and if he had copies he should send them to VA. In addition, the May 2007 letter from the RO had already informed him of evidence that could substitute for missing service treatment records. No further development is necessary to attempt to obtain any service records. The Board's remand directives have been substantially complied with and the matter is now ready for consideration by the Board. D'Aries, supra. Moreover, after several requests to all known sources, each custodian has indicated that it has no further service records. 38 C.F.R. § 3.159 (c)(2). The Board is cognizant that in such situations, "the BVA's [Board's] obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the most recent VA examination obtained in this case is adequate. It is predicated on a review of the history and medical findings and considers the Veteran's complaints, symptoms and history, particularly his reports of in-service head injury and subsequent history. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issues addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2013). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Specified diseases listed as chronic in nature, including arthritis, may be presumed to have been incurred in service if the evidence shows that such disease became manifest to a degree of 10 percent or more within one year from separation from active service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts As noted above, only the Veteran's entrance examination has been associated with the record. It does not document any disability of the neck or right shoulder, or complaints in this regard. The Veteran claims that his currently diagnosed cervical spine disability and right arm radiculopathy are attributable to service, particularly a history of being struck in the head with a supply locker in 1988 while onboard the USS Independence (CV-62). He relates an onset of arthritis in the neck, right shoulder and right arm in 2004. See VA Form 21-526. Per the Board's February 2013 remand instructions, a July 2000 VA Initial Patient Assessment Note was obtained related to the Veteran's application to enter the Merchant Marines. The note does not document any complaints regarding the neck and upper extremities, including the right shoulder/arm. The earliest clinical evidence of neck pain appears in a March 2004 private treatment record from First Charlotte Physicians (FCP). The note documents a chief complaint of a weak and numb right arm, with pain from the shoulder to the hand with a one year history. Examination also noted decreased muscle bulk in the right arm and chest. He then complained of occasional neck pain, as well. X-rays of the right shoulder were normal. X-rays of the cervical spine showed degenerative changes. Right upper extremity/neck pain and parasthesias were assessed at this time and medication was prescribed. The Veteran was also scheduled for a nerve conduction study. A July 2004 follow-up note from FCP documents that the Veteran then presented complaining of, inter alia, a recurrence of right arm pain in the past 2 weeks. The Veteran had not kept his appointment for the nerve conduction study and the pain had resolved with Celebrex. He denied any numbness, parasthesias and weakness and complained of pain in the lower part of his neck on the right posteriorly. He denied any injury. Right arm pain was assessed and possible causes, including cervical radiculopathy, were discussed, as was further testing, to include obtaining a MRI and nerve conduction studies. A June 2006 record from FCP notes that the Veteran presented with a chief complaint of having felt his neck pop 2 weeks prior with resultant pain and stiffness. He also complained of sharp pain with movement of the shoulders, as well as a right arm problem for several months manifested by aching pain, weakness and numbness. Cervical strain, recent, was assessed at this time, as was right arm pain and intermittent right arm weakness/numbness. A November 2006 note from FCP documents that X-rays showed degenerative changes of the cervical spine, with resolution of neck and right upper extremity pain for the time being. Cervical spine osteoarthritis was assessed at this time. A May 2007 note from FCP documents a complaint of continued daily neck pain with radiation into the right upper extremity and occasional sensation of decreased grip strength in that arm. Degenerative arthritis of the cervical spine with right upper extremity radiculopathy was assessed at this time and a MRI was to be scheduled. In his November 2008 Notice of Disagreement (NOD) the Veteran explained that he had only had a head injury in service, when a locker fell and struck him. He took issue with the lack of service documentation of this incident and asserted that the accident did indeed occur. Of record is a March 2009 letter from C.K.K., M.D., a doctor with FCP, sent to VA specifically in support of the Veteran's claim "regarding chronic neck and shoulder problems." The letter reflects that FCP first saw the Veteran in March 2004 at which time he complained of right arm weakness extending from his shoulder down to his hand. The letter reflects that X-rays taken at that time showed degenerative changes at C4-C5 and that he was then treated with anti-inflammatories. It discloses further treatment with Celebrex in July and that the Veteran declined to proceed with nerve conduction testing and MRI. Nevertheless, the letter notes that nerve conduction studies in June 2006 were normal. In March 2009 the Veteran submitted a statement in support of his claim. In the letter, he related that the only head injury he had occurred in service when he was hit in the head with a locker, as outlined above. He stated that "[he] live[d] with constant neck and shoulder pain." He requested that his service treatment records be reviewed and that he had been "suffering with this for years." In May 2011 the Veteran testified before the Board. At his hearing, he reiterated his history of injury when a locker fell and hit him in service. He also explained, that it was after service when he started having pain in his arm, although he could not remember the exact date. He explained that he did not have any such pain until he relocated from Georgia to North Carolina, and that he first sought treatment for this pain from Dr. C.K.K. around the time he relocated. He related that he had provided Dr. K. a history of his in-service injury and that she had related that "that may have caused the arthritis in [his]neck and when it flares up, it presses on a nerve that makes [his] whole arm hurt, arm and shoulder." He indicated that he did not experience the neck pain in service. He denied having received any VA treatment for the condition. He asserted that his neck and arm conditions stemmed from the in-service locker incident, noting that he had no history of injury otherwise. In December 2011 the Veteran was afforded a VA examination. The examiner, based upon a full review of the claims file, was advised to comment on whether or not the Veteran's osteoarthritis of the cervical spine was incurred in service. The examiner was asked to particularly consider this question in light of an elicited history from the Veteran, noting that the Veteran has sought to attribute osteoarthritis of the cervical spine to a 1988 in-service incident where he was struck in the head by a storage locker. In this regard, the examiner opined that "[i]n the absence of better documentation it is not possible to connect the in[-]service event with the [V]eteran's present neck problem without [resorting to] speculation" and noted that a July 2000 VA record from the Dublin, GA VA Medical Center (VAMC) documented no complaints regarding the neck. The examination report notes a diagnosis of degenerative disc disease (DDD)/degenerative joint disease (DJD) of the cervical spine (neck), as well as signs and symptoms of radiculopathy, but no assessment of intervertebral disc syndrome (IVDS) or any neurologic abnormality. EMG/PNCV testing was noted as having been reported as normal. In April 2013, the Veteran was afforded another VA examination in accordance with the Board's February 2013 remand directives. The examination report documents that the claims file was reviewed by the examiner and that an in-person examination was conducted. Examination resulted in assessment of DDD of the cervical spine and "subjective cervical neuralgia affecting right upper extremity without objective evidence of radiculopathy," each with a diagnosis date of 2004. The examiner referenced the history outlined herein above by the Board, and particularly the history of head injury as related by the Veteran. The examiner, despite the absence of service treatment records regarding this injury, acknowledged the Veteran's report of in-service injury and accepted his report as true. In regard to the reported injury, the Veteran further explained that when the locker fell and hit him in the head, it did not cause a loss of consciousness and he did not "see stars." He related that he had a bleeding cut on the crown of his head and received medical treatment for this injury, which did not require stitches. He explained that he was prescribed 1 day of bed rest, went back to duty thereafter and the cut had healed without incident. He denied any headaches and dizziness following the incident, and denied any in-service sick visits for headaches, dizziness and neck conditions thereafter in service. He denied any history of symptomatology following service until 2004 when he began having severe neck and right arm pain felt deep inside his arm and all the way to the fingers. He related that at this time, he went to a local doctor who found significant arthritis in the neck and asked about a history of head injury in 2007, which precipitated the Veteran's current claim. He denied any injury post-service, as well. Following physical examination and interview of the Veteran, the examiner concluded that it was less likely than not that the Veteran's currently diagnosed DDD of the cervical spine with subjective neuralgia of the right arm was incurred in or caused by service, particularly the reported history of head trauma. In terms of rationale, the examiner noted that the Veteran had added information at the time of the examination regarding the absence of chronic headache, dizziness or neck pain following the reported in-service head injury, and that he did not lose consciousness or "see stars." Along these lines, the examiner explained that this suggested that the impact of the locker was of minor intensity, thus diminishing the risk of residual symptoms, as well as DJD of the cervical spine. The examiner also noted that in tracing through the Veteran's history following discharge that he denied any other problems with headache, dizziness and neck pain until 2004, i.e. 16 years following the reported injury. The examiner remarked further that residuals of head trauma were expected to begin within 6 weeks of trauma and consist of chronic headache, dizziness, neck pain, forgetfulness/inattentiveness and irritability. He explained that the Veteran denied any symptoms at all until 2004, when he began having neck and right arm pain, but no headache or dizziness. He found no evidence of chronicity of any cervical spine condition from the time of the reported head injury in 1988 until 2004. Analysis Initially, the Board notes that the provisions providing for presumptive service connection of arthritis are inapplicable in the present case. The evidence does not show nor does the Veteran assert that he had arthritis and/or an organic disease of the neurologic system that manifested to a compensable degree within one year of separation. The Board acknowledges the Veteran's reports that he sustained an injury in service when a locker fell and hit his head and that the currently diagnosed conditions of the neck and right arm are attributable thereto. However, although the Veteran is competent to report his lay observations of pain and otherwise lay observable manifestations, he is not competent to attribute these conditions, first assessed around 16 years following the reported incident, to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Along these lines, the Board also notes that the Veteran has reported that his private doctor has advised him that his neck and arm conditions "may" have been caused by his reported in-service injury. A lay person's account of what a doctor purportedly said is too attenuated and inherently unreliable to constitute "medical" evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (veteran's statement that his physician told him that he "most probably" had diabetes at time of his discharge from service was not sufficient medical evidence to establish service connection for diabetes). Moreover, a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship. Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993). Otherwise, the competent and probative evidence weighs against the claim. The Veteran has related that he suffered a cut on his head in service when a locker fell and struck him. The Veteran's report of the injury is considered competent, credible and probative. He has denied any history of neck and arm pain in and following service, until 2004, when he first sought treatment for these symptoms. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Board finds that the Veteran did not experience any symptoms of the claimed condition for at least 16 years after service, based on his affirmative denials of any symptomatology until approximately 2004. In this regard, it is also noted that the July 2000 VA medical record did not note any cervical spine or right arm neurologic disorders on examination. This long period without problems weighs against the claim. Moreover, recent VA examination, taking into account the Veteran's lay reports of injury, has indicated that it is less likely than not that the Veteran's claimed conditions are attributable to service, and in particular his reported head injury therein. The examination report competently indicates that due to the severity of the reported head injury, it is less likely than not that the Veteran incurred any neck and arm disability related thereto, The examiner conducted an examination and provided an opinion that was based on a review of the history, the Veteran's reports, and was supported by a rationale. In this case continuity is not shown as an examination in July 2000 resulted in negative findings. Moreover, even if the Veteran were competent to attribute his current disabilities, including degenerative disc disease, arthritis, and radiculopathy, to an injury in service, his statements are outweighed by the more probative medical opinion. The examiner has medical training and fully considered the history and the Veteran's reports in providing the opinion, which was supported by a rationale. Thus, despite the Veteran's assertions, the evidence weighs against the claims and they must, therefore, be denied. Gilbert, supra. ORDER Entitlement to service connection for a cervical spine disorder, claimed as a neck disability, is denied. Entitlement to service connection for right upper extremity radiculopathy, claimed as right shoulder disability, is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs