Citation Nr: 1336769 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-26 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from May 1976 to June 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2008 and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The March 2008 rating decision denied entitlement to service connection for a right knee disability. The Veteran filed a notice of disagreement in September 2008. Even though he was issued a statement of the case in January 2009, the record reflects that multiple attempts to deliver this document to the Veteran were unsuccessful, as these letters were noted to have been returned as "unclaimed." In a May 2010 letter that was received by VA in June 2010, the Veteran notified VA that the reason he was unable to claim these letters was because he had been incarcerated since December 2008 and had just received the notification and the appeals form in May 2010. He completed and submitted the VA Form 9 to complete his substantive appeal in June 2010. VA has accepted this Form 9 as timely for purposes of perfecting the right knee disability appeal. The November 2011 rating decision denied entitlement to service connection for a cervical spine disability. The Veteran filed a notice of disagreement in November 2011, a statement of the case was issued in June 2012, and the Veteran filed a substantive appeal in June 2012. In May 2013, the Veteran testified at a personal hearing before the undersigned. A transcript of this hearing was prepared and associated with the claims file. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. This evidence has been considered in the following decision, and any future adjudication of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a current cervical spine disability that had its onset in service or that is otherwise associated with service. CONCLUSION OF LAW Service connection for a cervical spine disability is not warranted. 38 U.S.C.A. §§ 101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2013)). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Dingess, supra; Pelegrini, supra. The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes an evidentiary development letter dated in May 2011 in which the RO advised the appellant of the evidence needed to substantiate his service connection claim. This letter was sent prior to the initial adjudication of the Veteran's claim in November 2011. The appellant was advised in this letter of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. This letter further advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claim, pursuant to the Court's holding in Dingess, supra. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issue on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's service treatment records and VA medical records. The Veteran also underwent a VA examination in connection with his neck claim in July 2011. The Board finds that the resulting VA examination report is adequate for the purpose of determining the claim decided herein. The examination report reflects review of the claims file. During the examination, the examiner elicited from the Veteran his history of complaints and symptoms and provided clinical findings detailing the examination results. The examiner also provided a diagnosis and etiology opinion and explained the reasons and bases for this opinion. For these reasons, the Board concludes that the July 2011 VA examination report in this case provides an adequate basis for a decision on the Veteran's claim. The Veteran has been afforded a Board hearing 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 (Court) held that 38 C.F.R. § 3.103(c) (2) (2012) requires that the "hearing officer" who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the hearing the undersigned enumerated the issue on appeal. Also, the undersigned noted the bases of the prior determination and the evidence necessary to substantiate the service connection claim. Thus, the obligations under 38 C.F.R. 3.103(c)(2) are met. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for chronic disabilities if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b)(2013). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In the case at hand, the claim (disc disease) being decided is not listed as a chronic disability under 38 C.F.R. § 3.309(a). Therefore, the option of establishing service connection through continuity of symptomatology since service is not available in this case. 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). The Veteran has claimed entitlement to service connection for a neck disability that he contends resulted from an in-service neck injury. At his May 2013 Board hearing, the Veteran provided the following testimony: [T]his injury here happened while I was in the military. We were unloading a file cabinet and I was on the ground as we was working off a deck, a dock actually and the guy that was handling the dolly, he kinds let it up too far over and the file cabinet fell on my head and actually it was full and it kinda jammed me. They have the medical records for that. I wore a neck brace. I was on pain pills for a while and even today I'm still having problems with it. The Veteran's service treatment records reflect that his spine was clinically normal at the time of his February 1976 entrance examination and his April 1979 separation from active duty examination. He filled out medical history reports on his entrance into service in February 1976 and his separation from active duty in April 1979, but none of the choices on either of these reports clearly indicates to the Board that the Veteran was either endorsing or denying any symptoms associated with a neck disability while in service. Service treatment records contain an August 1978 record noting that the Veteran sought treatment for neck pain a couple of days following an unspecified accident. It was noted that he stated he could not perform normal duty because of a neck brace. He was taking medication that was making him drowsy. He was put on a 15-day limited profile with a neck brace. There is no indication that he sought any subsequent neck treatment in service. In terms of post-service evidence of disability, a February 2003 VA medical record notes that the Veteran has been diagnosed with cervical disc disease. An October 2003 VA medical record notes that the Veteran reported that he had "a disc hernia of C6 that occurred 2 years ago and is on pain medications." A March 2011 VA physical therapy consultation record notes that the Veteran reported that he might have had some symptoms of neck pain back in the military in the 1970s. The Veteran underwent a VA spine examination in June 2011. At this examination, the Veteran reported that he started having posterior cervical spine pain in 2002 or 2003. He did not recall any injury other than the one that occurred during service. The Veteran described the injury and his subsequent treatment consistently with his May 2013 hearing testimony. He reported that, following treatment, his neck did improve and he was not seen further. After discharge, he did not seek medical care until approximately 2002 or 2003. The Veteran described the nature and severity of his pain, including numbness and tingling in the posterior neck but no radicular symptoms. The examiner noted the Veteran's reported treatment methods and his description of the functional limitations that are caused by the neck disability. A physical examination and an MRI were performed. Based on the above, the examiner assessed the Veteran as having multilevel cervical spine degenerative disc disease with spinal and foraminal stenosis. The examiner opined that the Veteran's current cervical spine disability is less likely than not related to his one acute treatment for his neck that occurred while on active duty. In addition to describing the contents of the Veteran's service treatment records, the examiner observed that there was no evidence of further care or of any chronicity. The examiner noted that there was no interim data proximate to discharge and that the Veteran started seeking care for cervical spine pain in the mid-2000s, a little over 30 years after discharge. The examiner did not find any evidence in the service treatment records of the Veteran having had degenerative disc disease or radicular-type symptoms or evidence of stenosis in service. The Veteran appeared to have suffered an acute injury to the cervical spine in service that resolved. The April 1979 separation physical made no indication of any complaints in regards to the cervical spine, and the separation examination was negative for any cervical spine abnormalities. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his of her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448- 9 (2000). In the case at hand, the examiner is a physician's assistant who is qualified through education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159(a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). The examiner thoroughly reviewed the claims file and interviewed and examined the Veteran. He supported his opinion through citation to the Veteran's pertinent medical history, explaining his basis for finding that the Veteran's in-service neck injury was acute and that his current neck disability did not manifest in service or for many years following his separation therefrom. For these reasons, the Board finds the July 2011 VA examiner's opinion to be highly probative to the question at hand. The Board notes that the only contrary opinion of record comes from the Veteran himself, who believes there is a link between his in-service neck injury and his current degenerative disc disease of the cervical spine with spinal and foraminal stenosis. The Board recognizes that there are instances in which lay testimony can provide probative evidence in medical matters. A lay person may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder. 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). However, as a lay person, the Veteran is not competent to offer testimony on a complex medical question such as whether a particular neck injury was acute or is otherwise related to a current cervical spine disability that did not manifest until more than 30 years following his separation from service. With respect to the continuity question, the Board notes that the Veteran himself has asserted that the symptoms from his in-service neck injury resolved with treatment, and that the Veteran reported at his VA examination that his cervical spine symptoms began in 2002 or 2003, more than 30 years following his separation from service. Evidence of a prolonged period without medical complaint, and the amount of time that has elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In summary, the Board finds that a preponderance of the evidence is against finding a link between the Veteran's cervical spine disability and his military service. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for a cervical spine disability is not warranted. ORDER Entitlement to service connection for a cervical spine disability is denied. REMAND The Veteran has also claimed entitlement to service connection for a right knee disability, which he essentially contends developed as a result of an in-service injury. On his December 2007 claim form, the Veteran reported that his right knee disability began in October 1976. He provided the following testimony at his May 2013 Board hearing: I do have an arthritis problem and that's a result of the injury that I did receive in the service. One time I was playing football. I was in AIT [advanced individual training] and it was football and we were playing football. And a guy tackled me and tore everything up. I went on sick call, went to the Infirmary and in fact I was on crutches for about three weeks. I was on the top bunk and I had my partner was on the bottom bunk. We had to switch bunks 'cause I couldn't climb up top. A December 2010 statement from his former roommate corroborates that the Veteran "suffered a knee injury playing football around Sept - Nov 1976.... As stated we were roommates and I slept on the bottom bunk and he on the top. During his injury we had to switch bunks because it was to[o] difficult for [the Veteran] to get to his top bunk." The Veteran's service treatment records reflect that his knees were clinically normal at the time of his February 1976 entrance examination and his April 1979 separation from active duty examination. He specifically denied any past or current "trick" or locked knee on a February 1976 entrance medical history report, but he reported past or current "trick" or locked knee on his April 1979 separation medical history report. Otherwise, the Veteran's service treatment records do not reflect that he ever complained of or sought treatment for right knee symptoms in service. In terms of post-service evidence of a right knee disability, the Veteran testified at his May 2013 Board hearing that he received right knee treatment from a private family doctor in Louisiana in 1979 or 1980, within one year of his separation from service. He reported that he has attempted to obtain these records, but they are unavailable. The doctor who treated him passed away and his son took over his practice, but the son subsequently left and the records cannot be located. An August 2006 VA medical record notes that the Veteran has been found to have had chronic right knee pain. A January 2007 record notes that the Veteran sought treatment for right knee pain and swelling that had been worsening over the last three days. A December 2007 record notes that the Veteran "has been in multiple accidents and has multiple orthopedic injuries as a result of these accidents." An October 2010 VA mental health consultation record notes that the Veteran reported that he "suffered a torn ACL in the service and had knee replacement surgery through TDC in October 2009." A March 2011 VA mental health homeless veteran outreach record notes that the Veteran reported that he sustained a knee injury while playing football. The Veteran underwent a VA knee and lower leg condition examination in July 2012. The examiner diagnosed the Veteran with degenerative joint disease of the right knee with total knee replacement. He noted that the Veteran reported he injured his right knee playing football in advanced individual training in 1976. He reported he was treated with crutches profile and pain medication, that no diagnosis was made, and that "it got better after time." The Veteran underwent total knee replacement in 2009. The examiner conducted a thorough physical examination and imaging studies were performed. Because the examiner did not have access to the Veteran's claims file, he did not render an etiology opinion. In November 2012, following review of the claims file, the July 2012 VA examiner opined that the Veteran's current right knee disability is less likely as not related to the military. The examiner noted that, on exit examination, the Veteran checked off "trick" or locked knee, but he did not state which knee. The examiner also noted that the service treatment records mention nothing about a right knee condition. The Board finds it necessary to remand this claim so that the VA examiner may render an opinion that takes into consideration the lay statements of the Veteran and his former roommate, and also assumes that the Veteran was reporting a history of "trick" or locked right knee on his April 1979 separation medical history report. Specifically, the examiner should address whether the evidence of record indicates that the Veteran's current right knee disability is consistent with the in-service injury that he has described. The Board notes that the Veteran's May 2013 Board hearing testimony only appears in Virtual VA, VA's electronic claims file system. This testimony must be made available to the VA examiner in connection with the addendum opinion that is being requested on remand. Prior to obtaining the addendum opinion, the AMC should attempt to obtain the Veteran's October 2009 total knee replacement surgery records from the "TDC." Given that the Veteran was incarcerated in October 2009, the Board presumes that "TDC" refers to the "Texas Department of Corrections" or "Texas Department of Criminal Justice." Accordingly, the case is REMANDED for the following action: 1. Ensure that the May 2013 Board hearing transcript is available for review by the VA examiner. (This transcript is currently only located in Virtual VA.) 2. The AMC should attempt to obtain the treatment records from the Veteran's incarceration from approximately December 2008 through May 2010, to include records produced in connection with his October 2009 right total knee replacement surgery, presumably through the "Texas Department of Criminal Justice" or the "Texas Department of Corrections." Any necessary authorization from the Veteran should be obtained, and the Veteran should be notified that he may submit these records himself. The notification requirements of 38 C.F.R. § 3.159(c)(1) should be followed. VA should issue an initial records request and at least one follow-up request if the initial request yields no response. If these records cannot be obtained and there is no affirmative evidence that they do not exist, inform the appellant of the records that could not be obtained, including what efforts were made to obtain them. All efforts to obtain these records should be recorded in the claims folder. 3. Following completion of the above, return this case to the examiner who conducted the July 2012 VA examination and rendered the November 2012 etiology opinion. The examiner is asked to re-review the claims file and author an addendum to the prior opinion. Specifically, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any current right knee disability had its onset in, or is otherwise etiologically related to, the Veteran's military service, to include the Veteran's reported right knee injury in 1976. The examiner should expressly consider and discuss the following: (a) The examiner should assume that the Veteran was, in fact, reporting a history of "trick" or locked right knee on his April 1979 separation medical history report. (b) The examiner should consider and discuss the lay statements that have been made by both the Veteran and his former roommate concerning the nature of his in-service right knee injury and the resulting impairment. (c) The examiner should consider and discuss the Veteran's lay reports, to include those made during his May 2013 Board hearing, that he sought private medical treatment for right knee complaints in 1979 or 1980, shortly following his separation from service. (d) The examiner is asked to discuss whether the Veteran's current right knee disability (degenerative joint disease of the right knee with total knee replacement) is consistent with the type of disability that would result from trauma from the in-service right knee injury that has been described by the Veteran and his former roommate. A complete rationale for all opinions must be provided. 4. After the development requested above has been completed, again review the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs