Citation Nr: 1334434 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 07-20 786A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1999 to June 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2011, the Board remanded the claims for further development. During this time, the claims file was lost. The Veteran has a rebuilt file. The issue was again remanded in November 2012 for further development. In August 2013, following receipt of an August 2013 supplemental statement of the case (SSOC), the Veteran's representative requested that the case be forwarded to the Board immediately so it may proceed with adjudication. FINDINGS OF FACT 1. There is no competent and probative evidence linking a current right shoulder disability to service. 2. There is no competent and probative evidence linking a current cervical spine disability to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C.A. §§ 1110, 5107, (West 2002) 38 C.F.R. §§ 3.303, 3.655 (2013). 2. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C.A. §§ 1110, 5107, (West 2002) 38 C.F.R. §§ 3.303, 3.655 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided pre-adjudication VCAA notice by letters dated in March 2006 and in August 2006. Concerning the duty to assist, the Board notes that the Veteran's claim file was, through no fault of the Veteran, lost during the period on appeal. Under such circumstances, there are heightened obligations to assist the Veteran in the development of the case; to explain findings and conclusions, and to consider the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). VA attempted to obtain additional copies of the Veteran's service treatment records and attempted to schedule VA examinations for the Veteran in an effort to substantiate his claims in February 2013, April 2013, and July 2013; however, despite multiple attempts to reach the Veteran, he did not appear for his scheduled examinations and did not provide good cause for his failure to do so. These matters were most recently before the Board in November 2012, when the case was remanded to the RO for additional development. Following that remand, in November 2012, the Appeals Management Center (AMC) sent the Veteran a letter requesting information concerning treatment records and copy of the December 2007 VA examination report. A VA examination was scheduled. The Veteran neither replied to the request for records nor appeared for an examination. VA has made multiple attempts to contact the Veteran and to schedule examinations, with no response from the Veteran. Of note, some letters from the AMC have been returned as undeliverable. Attempts to reach the Veteran regarding his claims have been futile. In September 2013, the Veteran's representative noted that the Veteran could not be reached by telephone, and noted that there was no additional evidence in support of the Veteran's claim. Corresponding to VA's duty to assist him is a duty on his part to cooperate with VA in developing a claim. 38 C.F.R. § 3.655; see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Here, despite VA's exhaustive efforts to reach the Veteran so that his claims may be properly developed following the loss of the claim file, the Veteran has made no attempts to assist in the development of his claim, nor has he kept VA apprised of his current address. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (holding that "[i]n the normal course of events, it is the burden of the veteran to keep ... VA apprised of his whereabouts."). There is no indication of the existence of additional evidence available to VA which may substantiate the claims without the assistance of the Veteran. In light of the lack of cooperation of the claimant, further action with respect to the duty to assist would be futile. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for a 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). As noted above, the majority of the Veteran's records are unavailable; therefore, the facts below are derived from the Board's prior review of the record in the 2009 and 2011 remands. The Veteran contends that during service he suffered injuries to his neck and right shoulder while lifting and handling heavy supplies. Service treatment records show that in May 2003 the Veteran complained of right-sided neck and shoulder pain, which had been intermittent over eight months. The assessment was possible C-5 neuropathy and scapulothoracic dysfunction of unknown etiology. X-rays that same month showed a neural foraminal narrowing at C4-5 and C5-6 due to facet hypertrophy. After service, private medical records show that in September 2005 the Veteran complained of right-sided neck and shoulder pain. An October 2005 MRI of the cervical spine showed a neural foraminal narrowing at C5-6 due to a small osteophyte. On VA examination in December 2007, the Veteran complained of neck pain, radiating to the right upper extremity. The examiner was unable to offer a medical opinion without resorting to speculation as to the etiology of the Veteran's complaints. In October 2009, the Board remanded the claims and directed that the X-rays and the MRI, which were cited in the VA examination in December 2007, be obtained and to afford the Veteran a VA examination. Subsequently, VA imaging impressions in December 2007 demonstrated that the cervical spine and right shoulder were normal and a February 2008 MRI of the shoulder was read as normal. In a January 2010 EMG consultation note, the Veteran is shown to have complained of neck and right shoulder discomfort since 2003 which had slowly increased with severity. The Veteran stated that he did not remember the exact activity he was performing at the time of the onset of his pain but stated that he sometimes had to carry heavy boxes in the Navy. It was noted that the study was normal. In this case, while earlier records noted possible radiographic changes of the cervical spine, later radiographic studies were normal. It is unclear whether the earlier findings represent misdiagnoses. VA examinations were scheduled to address whether the early radiographic findings were diagnostic of arthritis in light of the subsequent normal radiographic and EMG testing. Examinations were also scheduled to determine whether the Veteran suffered from a current right shoulder condition, as well as to obtain nexus opinions with respect to any extant neck and right shoulder conditions, and service. Although an examination had been conducted in December 2007, such report is not available and based on information in the prior Board remand that considered it, the examination was insufficient with respect to the opinion provided. Specifically, it the examiner concluded that an opinion could not be rendered without resort to speculation, and the examiner did not explain why. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Similarly, the January 2010 examiner provided no opinion as to whether a current cervical spine or right shoulder disability existed or as to a nexus. In short, the evidence is insufficient to establish whether the Veteran suffers from a cervical spine and/or right shoulder disability that is related to his military service. The Veteran has failed to report to VA examinations to obtain opinions as to such matters, and has failed to keep VA or his representative apprised of his current address for VA to request additional information. To the extent the Veteran believes his cervical spine and right shoulder conditions are related to service, there is no indication that he has the requisite training to render medical opinions on complex medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, cervical spine and should pain can be the result of various diagnoses and arise from many different sources; thus, determining the diagnosis and etiology of cervical spine and shoulder disorders requires medical expertise. Thus, the Veteran's lay assertions as to the diagnosis and etiology of his claimed cervical spine and shoulder disorders are not competent medical evidence. The Board deeply regrets the loss of evidence pertaining to the Veteran's claim. However, the Board and the RO have made multiple attempts to further develop the Veteran's claim and the Veteran has made no effort to provide additional evidence or to attend a VA examination so that more information could be gathered, nor has he kept VA apprised of his current whereabouts. In accordance with 38 C.F.R. § 3.655, then, the claims must be decided based upon the evidence before the Board. As the evidence fails to demonstrate a competent nexus between the Veteran's current neck and shoulder complaints and his service, his claims are denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a cervical spine disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs