Citation Nr: 1335284 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 11-17 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the cervical spine. 2. Entitlement to service connection for torticollis. REPRESENTATION Appellant represented by: Ronald C. Sykstus, Attorney at Law ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active duty service from May 1945 to July 1946, from January 24, 1947 to February 9, 1947, and from January 1951 to September 1952. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. In October 2012, the Board reopened the Veteran claim of entitlement to service connection for degenerative disc disease of the cervical spine, and remanded the claims of service connection for degenerative disc disease and torticollis for further development. The Board notes that, in addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the paper claims file and will proceed with review of the claims based upon all relevant evidence. 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 Degenerative disc disease of the cervical spine has not been shown to have had its onset in service or within one year of service, and such disability is not otherwise a result of active military service. Torticollis has not been shown to have had its onset in service or within one year of service, and such disability is not otherwise a result of active military service. CONCLUSIONS OF LAW The criteria for an award of service connection for degenerative disc disease of the cervical spine have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2013). The criteria for an award of service connection for torticollis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA. As provided for by the Veterans Claims Assistance Act of 2000 (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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter dated in June 2009 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and 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 appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, statements in support of the claim are of record, including testimony provided at a July 2012 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Further regarding the duty to assist, the United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the October 2012 hearing, the undersigned identified the issue, elicited testimony designed to help substantiate the claims, as well as determine whether all relevant records had been obtained. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases, such as arthritis, when the disease is 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. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran contends that he is entitled to service connection for degenerative disc disease of the cervical spine and for torticollis. The Veteran contends that his chronic neck problems, to include disc disease and torticollis, are due to his active service. Specifically, he has indicated through statements and testimony that he was in a smaller boat that broke loose from his ship. He reported that when the smaller boat landed in the water, after a 30 foot fall, he felt a crack in his back and neck. He claims to have sought treatment at sick bay for his injuries. He then indicated that by 1970 his injuries really started to cause him problems, resulting in frequent hospitalizations. The service treatment records dated in July 1946 document that a motor launch fell from the Veteran's ship while he was in it, and that "one of his injuries" was to his right knee. The wording of the medical record implies that he had other injuries in addition to the right knee at that time. The remainder of the service treatment records are silent as to any neck complaints or treatment. Post-service private and VA treatment records currently associated with the claims file document cervical spine degenerative disc disease and torticollis. Additionally, the treatment records document the Veteran's report of chronic neck pain since the in-service neck trauma. Moreover, the claims file contains a November 2009 VA neurology clinic report in which the examiner noted that the Veteran had a history of trauma to his neck while in the service. The examiner remarked referenced medical literature supporting a finding of acquired dystonias following trauma. Finally, the Veteran provided testimony as to the neck injury sustained in service and that he has suffered neck pain since that time. In order to determine whether the Veteran has torticollis or other neck disability, a VA examination was conducted in November 2012. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran was found to have degenerative disc disease of the cervical spine, diagnosed in 1969, and torticollis, diagnosed in the 1980s. The Veteran reported that he suffered an injury in service. He stated that his esophagus and abdomen muscles were affected. He indicated that when he was serving in the Philippines, he was in an accident when a cargo net broke loose and hit his boat. Since service, he has had progressive issues with neck pain. An MRI indicated mild degenerative disease of the cervical spine, most pronounced at C5-C6. With respect to torticollis, the Veteran reported an onset in the 1980s, as his cervical spine condition progressed. He was treated extensively since the 1980s, and by the 1990s he was started on routine Botox injections. Symptoms included pain, limitation of motion of the cervical spine, and "very impressive" muscle spasms. The examiner noted as an aside, that the Veteran has a separate neurological condition called myasthenia gravis, found in 2011, which was responsible for his other neurological symptoms. After examination, the examiner opined that his diagnosed degenerative disc disease of the cervical spine and torticollis were less likely as not (less than 50%) related to or caused by his time in the service. The examiner noted that onset for the cervical spine disability was 1969, and in the 1980s for the torticollis. This was nearly 20 years after service for the cervical spine disability and 30 plus years after service for the torticollis. He indicated that both conditions are not subtle conditions in terms of their symptoms. If a service event were the etiology, the examiner explained that the medical records prior to onset would not have been silent. The examiner stated that the etiology of the cervical spine condition was most likely due to his age and post-service occupation, and the etiology of the torticollis was not likely due to his cervical spine condition progressing. As this opinion was offered following a review of the record and an evaluation of the Veteran, and as it was accompanied by a clear rationale, the Board finds it highly probative. By contrast, the earlier November 2009 record indicating that "the medical literature" supports a finding of acquired dystonias following trauma is less probative. Indeed, no specific medical literature was actually cited in that report and the author had not reviewed the entire record and thus may not have been aware of the significant gap in time between the in-service accident and the post-service reported onset of symptoms. Based on the foregoing, the Board finds that entitlement to service connection for degenerative disc disease of the cervical spine and torticollis is not warranted in this case. Here, the Veteran has been diagnosed with both disabilities. However, the November 2012 VA examiner specifically found that the Veteran's disorders are not related to his military service. The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. The credibility and weight to be attached to these opinions is within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Black v. Brown, 10 Vet. App. 279 (1997). In this case, the Board finds that the opinions of the VA examiner in this case to be most persuasive, based as they were on examinations of the Veteran and his claims file. The Veteran has contended that his claimed disabilities are related to his service. In this regard, lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, while VA must consider lay evidence, it may give it whatever weight it concludes the evidence is entitled to, and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); see also See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring) ("the Board should avoid overbroad statements about the competence of laypersons and should carefully distinguish its treatment of lay testimony of symptoms and its analysis of lay competence on issues of diagnosis or causation"). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds that the diagnosis and etiology of the Veteran's disorders is a complex medical question, beyond the competency of a layperson. The Board further finds that the question regarding the relationship between such disabilities and military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, as the Veteran has only provided his own conclusory statements regarding diagnosis and causation, the Board finds that the Veteran's statements to be of little probative value as he is not competent to opine on such a complex medical question. Moreover, while degenerative disc disease (arthritis) is a chronic disease under 38 C.F.R. § 3.309(a), there is no factual support for an allowance based on continuity of symptomatology based either on the clinical record or the Veteran's own statements. In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claims. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Because the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for degenerative disc disease of the cervical spine is denied. Service connection for torticollis is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs