Citation Nr: 1334146 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 08-12 971A ) 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 disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active service from February 1971 to November 1972. The Veteran was awarded the Purple Heart for wounds sustained in action while serving a tour of duty in Vietnam, and has also been awarded a number of other citations for his honorable service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2009, the Veteran testified at a Travel Board hearing at the RO. A transcript of the hearing is associated with the record and has been reviewed. The Board previously remanded this matter for additional development in January 2010, September 2011 and March 2013. That development has been completed, and the case has been returned to the Board for further appellate review. It is noted that the claim of service connection for bilateral hearing loss, which was previously before the U.S. Court of Appeals for Veterans Claims (Court), was recently granted in a May 2013 RO decision. This matter is no longer before the Board. FINDING OF FACT The competent and credible evidence does not show that the Veteran's degenerative joint disease of the cervical spine manifested within one year of active service, and does not show that a current cervical spine disorder is related to any disease, injury, or event in active service. CONCLUSION OF LAW A cervical spine disorder was not incurred in or aggravated by service, and arthritis may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by 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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, prior to the initial rating decision in this matter, an October 2006 letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence. The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes assisting the veteran in obtaining service treatment records and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. The Board concludes that the duty to assist has been satisfied. The Veteran's service treatment records and VA medical records have been obtained and associated with the claims file. Pursuant to the Board's September 2011 remand directive, additional VA treatment records dating from March 2007 have been obtained and associated with the claims file. Pursuant to the March 2013 remand, the Veteran was requested to submit additional medical evidence from a private physician clarifying his treatment for a cervical spine disorder, and additional VA records were obtained. In an April 2013 response, the Veteran indicated that the private chiropractor's office is no longer open. The Veteran has not identified any other outstanding records. The Board concludes that the duty to assist has been satisfied with respect to obtaining relevant evidence on the Veteran's behalf. See 38 C.F.R. § 3.159(c). The Board finds that there has been substantial compliance with the January 2010, September 2011 and March 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was afforded VA examinations in June 2007, February 2011 and October 2011. An addendum opinion was obtained in May 2013. To that end, 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). In the January 2010 remand, the Board determined that the June 2007 VA examination was inadequate because it was based on an inaccurate factual premise. The Board remanded the claim for a new VA examination, which was conducted in February 2011. Addendum opinions were obtained in April 2013 and May 2013. The February 2011 examination and the April and May 2013 VA addendum opinions obtained in this case are adequate as they were predicated on a review of the claims file, contained a description of the history of the disability at issue, considered the relevant medical facts and principles and provided opinions as to the etiology of the Veteran's cervical spine disorder. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying whether the Veteran met the criteria necessary to establish service connection. The VLJ also sought to identify any pertinent evidence not currently associated with the claims. The Veteran also volunteered his treatment history. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Analysis of Claim Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). The Veteran has been diagnosed with degenerative joint disease of the cervical spine. Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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 a condition noted during service is not shown to be chronic, then generally a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, became manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within a presumptive period, it must be shown, by acceptable medical or lay evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. When an injury is incurred in combat, satisfactory lay or other evidence will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996). While service connection for a combat-related injury may be based on lay statements alone, the competent and credible evidence must still show a current disability and a nexus to service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Huston v. Principi, 18 Vet. App. 395, 402 (2004); Clyburn v. West, 12 Vet. App. 296, 303 (1999); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996); Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996) (holding that U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case 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). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran had active duty service from February 1971 to November 1972. The Veteran's service personnel records show that he served as a Light Weapons Infantryman in Vietnam and that he received the Purple Heart, Army Commendation Medal for valor in Vietnam, and the Combat Infantry Badge. At the Board hearing in October 2009, the Veteran testified about his neck injury during service. The Veteran testified that he was using a powder charge which exploded, blowing him out of a cave and down a 60 foot embankment. The Veteran testified that he slammed into a pile of rocks and could not move. Service treatment record do not show complaints or findings regarding the cervical spine. The report of the service separation examination, dated in November 1972, shows a normal clinical evaluation of the cervical spine. Although a neck injury was not documented in the service treatment records, the Veteran is competent and credible to report that he experienced neck pain after a fall in service. Based on the Veteran's combat service and his statements, the Board finds that the Veteran sustained an injury involving his neck. The evidence of record does not show that arthritis of the cervical spine manifested to a compensable degree within one year of separation from service in November 1972. Therefore, service connection for arthritis of the cervical spine may not be presumed. 38 C.F.R. §§ 3.307, 3.309. In a May 2008 statement in support of his claim, the Veteran alleged that he has had continuous medical treatment for cervical spine symptoms since separation in 1972. At the Board hearing, the Veteran similarly testified that he received treatment from a chiropractor when he returned home after service. He indicated that those treatment records are not available. Post-service VA medical records in evidence show that the Veteran initially reported neck pain in 2006. At that time, he reported a history of chronic neck pain for more than 20 years but did not specifically report neck pain since sustaining an injury in service. In this regard, the Board notes that the Veteran is competent to report his history of neck pain and treatment for neck problems. See, e.g., Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board is also mindful that in Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit held that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, although the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. The separation examination dated in November 1972 reflects that the Veteran did not mention a neck disability, and the Veteran had a normal clinical evaluation of the spine at that time. The Veteran denied swollen or painful joints in the November 1972 report of medical history completed in conjunction with the separation examination. Initial post-service evidence of treatment for a cervical spine disorder is shown in 2006, more than 34 years after the Veteran's separation from service. This long period of time between service separation and initial post-service treatment weighs against a relationship between the Veteran's cervical spine disorder and an injury during service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a condition was incurred in service). The Veteran's report of continuous cervical spine symptoms and treatment since his injury and discharge is generally inconsistent with the history reported upon separation from service as well as the VA medical records from 2006 which represent the first indication of cervical disability and treatment on file. Accordingly, because the records which are relatively contemporaneous with his injury, including the November 1972 separation examination, are not consistent with the Veteran's assertions, and given the lengthy gap of time before the Veteran first began reporting neck problems, the Board finds that this reported history is not credible. See Caluza, 7 Vet. App. at 511 (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran). A statement from a private chiropractor, dated in October 2009, noted that the Veteran was under her care periodically for a chronic neck condition for the last 20 years. In the March 2013 remand, the Veteran was provided an opportunity to submit additional information regarding what specific cervical spine disorders were treated. No additional information was received. The Board finds that the October 2009 medical statement does not support a finding of continuous cervical spine symptoms since service. Presuming the accuracy of the statement, chiropractic treatment is established as of the late 1980s not the early 1970s when the Veteran served. Accordingly, the Board finds that credible evidence of continuity of cervical spine symptoms since service has not been demonstrated. The Board finds that, while the Veteran did have a neck injury in service, there is no competent evidence of a link between the Veteran's service injury and a current cervical spine disorder. In this case, the Veteran had VA examinations in June 2007 and February 2011. The Board determined that the June 2007 and February 2011 VA medical opinions were inadequate because those opinions were based upon the lack of documentation of an injury in service and did not consider the Veteran's statements as sufficient evidence of an in-service injury. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon inaccurate facts is not probative). Accordingly, the June 2007 and February 2011 opinions are not probative regarding the issue of a medical nexus. The Veteran had a VA examination in October 2011. The VA examiner opined that it is not likely that a cervical condition was caused by active duty service. The VA examiner noted the instructions to assume a neck injury due to a fall in service. The VA examiner opined that, regardless, there is no medical data showing cervical disc disease in service. The examiner further explained that the Veteran does not have evidence of "traumatic" cervical arthritis (which could be due to a fall per medical literature). The VA examiner noted that the Veteran has evidence of degenerative cervical disc disease. The VA examiner stated, per medical literature, this condition takes years to develop and is brought about by wear and tear on the neck. The VA examiner noted that the Veteran was employed in the air conditioning business for 15 years, and this involves manual labor, lifting and carrying items and installing heavy items in odd positions. The VA examiner also noted that the service treatment records were silent for any cervical condition. The October 2011 VA examination report included an x-ray report from February 2007 which showed the following impressions: disc disease, C3-C4 through C6-C7 associated with osteoarthritis; minimal posterior subluxation, C4; and degenerative joint disease, C3-C4 through C6-C7, bilaterally as described. In an addendum report dated in April 2013, a VA physician noted that the Veteran's x-ray report is consistent with cervical degenerative disc disease which is listed as a diagnosis. The physician stated that the mild posterior displacement of C4 is most likely degenerative in nature and not related to his trauma given the minor degree on slip and the diffuse changes throughout the rest of his c-spine. In May 2013, another VA physician reviewed the claims file and discussed the conclusion reached in the April 2013 addendum opinion. The VA examiner noted that the Veteran's current cervical spine conditions, with consideration of the Veteran's February 2007 cervical spine x-ray findings include that of cervical disc disease, cervical osteoarthritis (degenerative joint disease), and the cervical subluxation of the C4 vertebrae. The VA examiner concurred with the addendum opinion provided in April 2013. The VA examiner explained that this would be a reasonable explanation, since, if the trauma had been of a degree that would result in a vertebral subluxation, more than one vertebra would have been involved along with the presence of fractures. The VA examiner noted that, since that was not the case, the fall resulted in only minor trauma to the cervical spine and was not the cause of his subluxation. The VA examiner opined, therefore, that the explanation by the VA physician would be appropriate. Based upon the foregoing, the Board concludes that the weight of the competent medical evidence is against a medical nexus to service. Notably, the Veteran's cervical spine disability is not attributed to a traumatic injury (as the Veteran described) but rather to gradual degeneration. The Board notes that several VA outpatient treatment records reflect that the Veteran reported a history of falling from a cliff in Vietnam and sustaining neck and back injuries. The Veteran reported this history during examinations in March 2008 and in May 2008. Such notations, however, are not competent medical opinions, based on the clinical or objective evidence, linking the Veteran's cervical spine disorder to service. See LeShore v. Brown, Vet. App. 406, 409 (1995) (mere transcription of lay history as reported by the veteran, unenhanced by any additional comment by that examiner, does not become competent medical evidence merely because the transcriber is a medical professional). Rather, the evidence merely constitutes a recitation of the Veteran's own self-reported history. The Board has considered the Veteran's testimony and statements and the statements submitted by others on the Veteran's behalf. A December 2007 statement by the Veteran's wife noted that the Veteran has had to see a doctor regularly for pain in his neck and back. She also noted that the Veteran told her about his experiences in Vietnam of falling over a cliff into a hole. In a November 2006 lay statement, a service member, M.S., noted that he was with the Veteran on the day of his accident. He observed that the Veteran fell down a rock formation and into a hole. M.S. noted that the Veteran told him that his back and neck were in pain. In a February 2008 statement, a fellow service member, D.N., indicated that he had known the Veteran since 1972, when they were in Danang. D.N. noted that the Veteran fell over a cliff into a hole and hurt his neck and back. He noted that he worked with the Veteran for five years. D.N. stated that, during that time, the Veteran had constant trouble with his neck and back and made numerous visits to chiropractors to get relief from pain. Laypersons are competent to testify as to what they observed and what is within the realm of their personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, laypersons lacking in medical training and expertise cannot provide a competent opinion on a matter as complex as the etiology of a cervical spine disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The lay statements of the Veteran, his wife, D.N. and M.S. are competent and credible to provide evidence of the Veteran's experience as well as reports of symptomatology, however, such statements are not competent to provide evidence as to complex medical questions, such as the etiology of a cervical spine disorder. The Board has fully accepted the Veteran's account of sustaining a neck injury in service, which has been further corroborated by a fellow serviceman. What remains lacking in this case is a probative nexus between current cervical spine disability and a disease, injury or event in service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a cervical spine disorder. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to service connection for a cervical spine disorder is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for a cervical spine disorder is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs