Citation Nr: 1339045 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 07-17 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for neck disability, to include arthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to July 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. When this case was most recently before the Board in July 2013, it was remanded for further development. The development having been completed, the case is once again before the Board for appellate consideration. This record before the Board consists of electronic files known as Virtual VA and the Veterans Benefits Management System. FINDING OF FACT A chronic neck disorder was not present until more than one year following the Veteran's discharge from service, and no current neck disorder is etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for neck disability, to include arthritis, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in April 2006, prior to the initial adjudication of the claim. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records are in the claims folder. All other private and VA medical records identified by the Veteran have been obtained, to the extent possible. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. In addition, the Veteran was provided VA examinations in November 2007 and May 2012, with a supplemental opinion obtained in August 2013. The 2007 and 2012 VA examiners thoroughly examined the Veteran, to include diagnostic tests. The Board previously remanded this claim finding the 2007 VA examiner relied on incorrect facts and the 2012 VA examiner did not have the service treatment records to review. A supplemental opinion was obtained in August 2013 based on the physical examination findings of the prior examinations and a current, complete review of the claims folder, to include service treatment records. The August 2013 examiner reviewed the Veteran's pertinent history and provided a detailed opinion with appropriate rationale. Therefore, the Board finds the combination of the physical examination findings in the 2007 and 2012 VA examinations coupled with the August 2013 opinion to be adequate. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran claims that he has had chronic neck problems since an injury in service in which he hit his head against a beam. The Veteran's service treatment records do not contain treatment records of the specific injury, but the neck injury is referenced in an October 1990 treatment record. The October 1990 treatment record notes that the Veteran was seen because of neck pain, which he reported had been present since a head trauma five years earlier. The treatment record indicates he forcefully hit his head against the beam and the neck pain worsens with cold weather. Indeed, the Veteran was wearing a neck collar at the time of the October 1990 treatment to help with his chronic pain. He was diagnosed with neck strain. It is noteworthy that the Veteran also checked "yes" to a history of recurrent back pain on a December 1977 periodic examination and also on the April 1993 separation examination. Although a neck disability was not diagnosed at either time, the April 1993 examination noted recurrent back pain associated with exercise and exertion and relieved with NSAIDs. After service, the record contains voluminous private treatment records from 1997 to the present. Despite the extent of records, no mention of neck pain or neck treatment is noted in any of these records. The Veteran was afforded a general medical VA examination in November 2007. The examiner noted the Veteran's history of in-service neck injury with complaints of neck pain since the injury. An X-ray examination disclosed "mild and minimal degenerative changes" of the cervical spine that the examiner stated were "not consistent with long-term degenerative processes." The examiner found it unlikely that the Veteran's current problems with neck pain are related to anything that occurred in service. As noted in the Board's prior remand, however, this opinion was partially based on incorrect facts. That is, the examiner indicated the Veteran checked "no" to neck problems on his April 1993 separation examination. In actuality, there is no such box for neck problems and, in contrast, the Veteran did check "yes" for recurrent back problems. The Veteran was afforded a new VA examination in May 2012. The examiner diagnosed the Veteran with chronic cervical strain. At that time, the service treatment records were not of record. The examiner considered the Veteran's description of in-service injury indicating the Veteran was moving to do damage repair and struck his head on a beam, was stunned, and went straight to a corpsman. The examiner further noted the Veteran's contentions that he had neck problems ever since this injury and has no other history of a neck injury. Even so, based on "the mechanism of injury," the examiner found "a single low-velocity blow to the vertex of the skull...less likely than not" responsible for the Veteran's current cervical spine pain. In light of the fact that the May 2012 VA examiner did not actually review the service treatment records in rendering the opinion, the Board once again remanded the claim to obtain an addendum opinion after the records were reviewed. An addendum opinion was provided in August 2013. At that time, the examiner reviewed all past examinations, post-service treatment records, and service treatment records, to include the records of the October 1990 treatment for neck pain and the in-service examinations. The August 2013 examiner detailed all the pertinent medical findings accurately, as well as the Veteran's own description of the injury. After reviewing all relevant evidence, the examiner opined that the Veteran's current neck pain is "less likely than not" related to his military service. The examiner explained that there is no evidence of a chronic neck problem after service until years later. The "current exam was normal other than 'morning pain' and Xray had some findings which could be consistent with wear and tear secondary to increasing age." For these reasons, the examiner found it unlikely that the Veteran's current neck problems were related to or incurred during his military service. The Board finds the August 2013 examiner's opinion persuasive. It is based on consideration of complete physical examination results done in November 2007 and May 2012, consideration of the Veteran's statements and reported medical history, and a thorough review of the claims folder, to include the service treatment records. Also compelling, no medical professional has ever linked the Veteran's current neck problems to any incident of his military service. In fact, the Veteran's voluminous post-military medical records are unrelated to any neck disorder. The Board has carefully considered the Veteran's statements and description of in-service events. The August 2013 examiner also considered his description of in-service events, injury, and symptoms in rendering the opinion. In fact, the examiner presumed the head trauma and neck injury occurred as described by the Veteran in rendering the opinion. In short, the evidence of record indicates the Veteran did not develop a chronic disorder of the neck until more than one year after service; although he incurred some kind of neck injury as a result of head trauma during his military service, no medical professional has attributed a current neck diagnosis to the in-service injury. Indeed, there is medical evidence to the contrary. Accordingly, service connection is not warranted for the Veteran's claimed neck disorder. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to the claim because the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for neck disability, to include arthritis, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs