Citation Nr: 1334465 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-11 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to October 1954. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In May 2012, the Veteran testified at a Travel Board hearing held before the undersigned Veterans Law Judge, and a transcript of the hearing has been associated with his claims file. When the case was previously before the Board in November 2012, the issue was remanded for additional development. Also in the November 2012 Board decision, the Board granted entitlement to service connection for PTSD and major depressive disorder. The case was returned to the Board without completion of all development. In March 2013, the Board remanded the matter again for compliance with the November 2012 remand. The development directed in that remand has been substantially completed; therefore, the issue is properly back before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's neck disability, osteoarthritis, did not manifest within a year of service separation and is not etiologically related to service. CONCLUSION OF LAW The Veteran's neck disability was not incurred in or aggravated by active service; its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in September 2008, prior to the initial adjudication of the claim. The duty to assist was also met in this case. All pertinent service treatment records, private treatment records, and VA treatment records have been obtained. In recent correspondence, the Veteran stated that treatment records he was seeking to add to the record are unavailable and/or destroyed. VA examination with respect to the issue on appeal was obtained and an addendum opinion was obtained in July 2013. 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 VA examination and addendum together are adequate. The examiner considered all of the pertinent evidence of record and the statements of the Veteran, and specifically provided a rationale for the opinions stated, relying on and citing to the records reviewed. 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. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be established for disability resulting from personal 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. Service connection for certain diseases, such as arthritis, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran contends that he has a neck disability due to injury in service. In his September 2008 claim, the Veteran wrote as follows: "Some time in the spring of 1952, I was working on my LCM boat. On this boat there was a mount for twin 20 mm guns. On this day the gun was missing I sat down under the mount to work on what I was assigned to do. A fellow ship mate crawled up on top of the mount to sit down in the sun. The mount moved and he slid off the mount landing on my neck. I thought at that time he had broken my neck was taken to sick bay where I remained for a couple of days. The doctors gave me a brace to wear for a week or two. Since I left the service I have had my neck check by many doctors. One wanted to do surgery on my neck but I was not convinced that surgery was needed. Spokane VAMC has been giving me oral medications for the pain that has helped me. My pre-service occupation was as a lumber grader and my post-service occupation has been working in the mill as a lumber grader. My hobbies have been gardening and working with wood. When I joined the Navy, I did not have a neck injury nor did I have PTSD." The Veteran's service treatment records (STRs) do not show any treatment for neck symptomatology. At his hearing before the undersigned, the Veteran testified that he did not report any neck symptomatology at his separation examination because he wanted to go home. Although the STRs do not show any treatment for neck symptomatology, the Board has found the Veteran credible in his reporting of the in-service neck injury. There are no medical records between 1954 and 2002, but a chiropractor reported that the Veteran began treatment in 2001. The Veteran began receiving medical treatment through the VAMC system in 2002. The VAMC treatment records are negative for complaints of or treatment for neck problems from 2002 until 2005. Treatment records from March 2005 show the first report of neck problems. At that time, the Veteran related having an injury in service and also a work related injury in about 1990. The chiropractic treatment records demonstrate complaints concerning the Veteran's neck and shoulders with raking hay, gardening, and moving boxes. As a current disability was shown in VA treatment records containing an assessment of neck pain and in chiropractic treatment records for neck symptomatology, a VA examination was deemed warranted. The case was therefore remanded in November 2012 with instructions for obtaining additional treatment records as well as conducting an examination. The examiner was to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to a neck disorder. Accepting the Veteran's reporting of neck pain from a fellow sailor falling on him during service as credible, the examiner was to opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that any current neck disorder is related to active service, including the reported neck injury in service. VA examination was conducted in December 2012. A diagnosis of osteoarthritis was confirmed by x-ray. The examining nurse practitioner opined as follows: Although I was unable to locate any documentation in the record re: the above stated injury, it is my opinion that the findings of severe osteoarthritis in the cervical spine could well have been trauma induced. I am unable to state definitively without resorting to mere speculation as to the nature of this trauma and it is likely to have been of a repetitive nature over the course of the time to result in this degree of osteoarthritis. In February 2013 argument, the Veteran's representative argued that the medical opinion provided as to etiology of a neck disability in the examination report was inadequate inasmuch as the examiner stated that she could not render an opinion as to whether the currently present neck disability was likely due to service without resort to speculation. The Board too found that the report of examination was inadequate for rating purposes, inasmuch as the examiner does not comment on the relationship between current neck disability and service, in light of the Veteran's assertions as to in-service trauma that have been accepted as credible by the Board. The case was thus remanded for an addendum from the examiner, addressing this inadequacy. In a July 2013 addendum, the examiner stated that, "I do not find any objective evidence or complaints of neck problems until approx 2011, the veteran is 83 years old and has arthritis and stenosis in his neck, the likelihood that that this started with his subjective account of a "neck sprain" in service is very low. His post service work and lifestyle are much more likely to be the cause of his current neck condition. A single sprain does not cause arthritis or stenosis, old age and repetitive use activities are likely the causes of arthritis and stenosis. If he did have a significant neck injury while in service he would have needed care before 2011, he would have had some sort of medical history to read about in his records. There is simply no records before 2011 that talk about his neck problems, and if his injury in service had been significant there would have been a work-up for it, he would have had work-up before 2011. I do not see that his current neck condition is in any way related to his service." Private treatment records include those added in March 2013 and show continued complaints of joint pain and arthritis. In this case, medical evidence demonstrates that the Veteran is currently diagnosed with cervical spine arthritis. However, as this diagnosis was not rendered within one year of the Veteran's 1954 separation, service connection by presumption for the chronic disease of arthritis is not warranted. The question turns to whether direct service connection is warranted. It is undisputed that the Veteran suffered an in-service incident to his neck as described herein. Again, while an injury was not documented in the STRs, the Board has found the Veteran credible and thus accepts his version of events in service inasmuch as he was hit in the neck. The question that remains is regarding a nexus between the Veteran's current cervical spine disorder and the incident in service. Following a review of the record, the Board finds that the most persuasive medical evidence that specifically addresses the question of whether the Veteran's current cervical spine disorder is due to service is that which weighs against the claim. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The Board finds the December 2012 VA examination and the July 2013 addendum to be competent and highly persuasive evidence against the claim. The examiner supported the conclusion that the current neck disability is not related to the injury in service with an explanation based on references to the record and medical expertise. This medical opinion is wholly uncontroverted by any other competent medical evidence of record as to the issue of nexus. The Board notes that the reviewing examiner indicated that the record did not show treatment for a neck disability until approximately 2011, and relied in part on the lack of seeking treatment for such a long period of time after service in finding against a nexus. The Board recognizes that the record does include treatment in 2005, six years prior to the date the examiner indicated. However, the Board does not find that this error is fatal to the opinion offered. It is clear from the opinion report that given the current severity of the cervical spine disability, if it had stemmed from the in-service sprain, the Veteran would have required treatment shortly thereafter separation. Given the gap that remains between 1954 and 2005, the Board finds that the spirit of the opinion stands. The Board acknowledges the Veteran's contentions that his current cervical spine disorder was caused by his injury in service, and that he has experienced neck pain since the initial sprain. In a February 2013 letter, the Veteran reported that he had been treated by a doctor for his neck right after service, and then he was treated in the 60's and thereafter. The doctors who treated him are all deceased except for one whom he contacted; that doctor told the Veteran that he did not keep records past 5 years. The Veteran argued that he had four honest people write lay statements for him in support of his claim, standing for the proposition that he has had neck pain since he separated. Lay statements received from October 2008 forward that support the Veteran's assertions include a letter from a friend since 1973 who remembers the Veteran's chronic neck trouble since that time, as well as a letter from the Veteran's wife of 54 years who remembers him yelling when she accidentally touched his neck the second day they were married. Other lay statements also support his contention of observable neck problems. The question of nexus, and whether the Veteran's cervical spine disability was caused by injury in service, is a medical one, and one which the Board expressly finds that the Veteran, as a lay person, is not competent to answer. Specifically, while some conditions are observable by lay persons and capable of lay judgment, like a broken arm or varicose veins, others are not, like arthritis. This Veteran's disability involves a disease process affecting the cervical spine, which is not capable of lay observation. Therefore, the Veteran is not competent to opine on the matter of nexus. The Board has found no reason to doubt the Veteran's credibility with respect to the testimony regarding his pain. However, as to the allegation of continuity of neck symptomatology since service, the Board finds that neither his assertions nor the lay statements outweigh the competent medical evidence that the Veteran's current neck disability is not related to service. In this regard, it is undisputed that the Veteran is competent to testify as to observable symptoms such as neck pain. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Layno v. Brown, 6 Vet. App. 465 (1994). However, the statements from the Veteran (as well as the lay statements in support of his claim) are found to be less probative as to the issue of whether the current disability is related to service than the well-reasoned and well-supported medical opinion, coupled with the lack of treatment for many decades following service. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000) (time elapsed prior to initial complaint can be considered as evidence against the claim). The lay statements thus fail to establish continuity of symptomatology such as to enable a grant of service connection for a neck disability. In short, the Board finds that the preponderance of the evidence is against the Veteran's claim; therefore, the benefit of the doubt provision does not apply. Accordingly, the Board must conclude that service connection is not warranted for the Veteran's neck disability. ORDER Service connection for a neck disability is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs