Citation Nr: 1339167 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 03-26 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected left shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to May 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2004 decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously finally denied, but was reopened during the course of the present appeal. In November 2005, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. This matter was previously remanded by the Board in April 2007, May 2009, and December 2010. In addition, the Board solicited two outside medical opinions, copies of which have been provided to the Veteran. The Veteran has waived review of evidence received after the last adjudication of this matter. FINDING OF FACT The Veteran's current cervical spine disability and its severity are unrelated to his military service or service-connected left shoulder disability. CONCLUSION OF LAW The criteria for establishing service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA applies to the instant claim. VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). In this case, a May 2004 letter provided the Veteran with notice regarding what information and evidence is needed to substantiate his claim for service connection on a direct basis, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A June 2009 letter advised the Veteran of what information and evidence is needed to substantiate his claim for service connection on a secondary basis, how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The claim was last readjudicated in May 2012. The record reflects that at the November 2005 hearing the undersigned explained the issue, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports, private treatment records, and hearing testimony. In addition, the Board notes that the case was remanded in April 2007, May 2009, and December 2010 to obtain VA treatment records, furnish the Veteran notice appropriate to his claim, and provide him with a VA examination. While the Board requested the Veteran be provided a medical examination, a medical opinion was obtained without examination; however, further remand is not necessary as the needed opinion was obtained which represents substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was provided supplemental notice in June 2009 and the requested VA treatment records were obtained. Accordingly, the requirements of the remands were ultimately accomplished and the prior remand instructions were substantially complied with. See id. As will be discussed in more detail below, adequate medical opinions were obtained in this case. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (an adequate medical examination is one that is based on a consideration of the veteran's relevant medical history and provides sufficient information so that the Board can make a fully informed decision). Analysis The existence of a current cervical spine disability is not in dispute. For example, the Veteran has submitted private and VA treatment records that reflect he currently suffers from cervical disc bulges and degenerative disc disease with radiculopathy. There are, however, two points of contention in this case. First, there is competing evidence regarding whether the Veteran suffered an injury to the cervical spine during his military service. Such an injury could result in a grant of service connection. See 38 C.F.R. § 3.303 (2013); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Second, there is a question as to whether the current cervical spine disability was caused or aggravated by a service-connected left shoulder disability. See 38 C.F.R. § 3.310 (2013). I. Injury During Service During service, in June 1988, the Veteran was taken to the hospital after he fell down some stairs and injured his left shoulder. He was diagnosed with a subluxed left shoulder and received physical therapy. He later complained of a sore left shoulder in April 1989. In May 1990 and July 1991, he sought treatment for a dislocated left shoulder. Service treatment records show no complaints related to the cervical spine. In February 1993, shortly after the Veteran's discharge from service, he presented for a VA joints examination. Examination revealed a good cervical spine posture. No diagnosis related to the cervical spine was rendered. Private treatment records from January 2013 reflect the Veteran's report of a history, beginning in 1995, of significant neck pain shooting down to the left shoulder, arm, and hand. Cervical spine X-rays in 1997 revealed muscle spasm with no acute process as well as reversal of the cervical curve, which was noted to be presumed secondary to spasm of the cervical muscles. Subsequent diagnostic testing, treatment records, and examination reports, dating from 1997 to the present, reflect muscle pain, tenderness along the cervical spine, degenerative disc disease, disk bulges, and cervical radiculopathy. In December 2012, a VA neurosurgeon reviewed the records from the Veteran's service and stated that she saw absolutely no mention of neck pain anywhere, including on the first emergency room visit. As a result, the neurosurgeon opined that it is not likely that the Veteran injured his neck in the fall to the degree that would result in the degenerative changes seen now. In support of his claim, the Veteran has submitted two opinions from Dr. C.B., a neuro-radiologist. In February 2013, Dr. C.B. opined that considering every possible sound medical etiology/principle the Veteran's neck problems are due to his fall in service down the stairwell. Doctor C.B.'s opinion is based in part on the Veteran having "neck pain ever since the fall." He offered a similar opinion in September 2013. Doctor C.B.'s opinions have been afforded no probative value as they are based upon the faulty premise that the Veteran had neck pain since his in-service fall. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that a physician's opinion based on an inaccurate factual premise has no probative value). The existence of neck pain during service is contrary to the Veteran's report to a private physician in 2013 that he started having significant neck pain with radicular symptoms beginning in 1995. In fact, in Dr. C.B.'s February 2013 opinion he recognizes that "in 1995 [the Veteran] started having shooting neck pain into left arm and hand (radicular symptoms)." The Veteran was discharged in 1992, and his fall was in 1988. Also of note, Dr. C.B.'s opinions are based in part on the Veteran being unconscious as a result of the fall which injured his left shoulder, implying that the fall resulted in a head injury. Medical records detailing treatment for that fall do not reflect any period of unconsciousness. There is no indication that the service treatment records are incomplete, and the Board would expect a loss of consciousness due to a fall to be noted on the contemporaneous records noting the incident. Records detailing the fall would be given more probative weight than the history reported to a private examiner in 2013 referred to by Dr. C.B., as the in-service records were created closer in time to the incident at issue. See Curry v. Brown, 7 Vet. App. 59 (1994). In any event, Dr. C.B.'s opinions are given no probative value as they are erroneously based on the Veteran having neck pain since the fall. The Board recognizes that in the February 2013 and September 2013 opinions, Dr. C.B. has implied that the Veteran's cervical pathology may have manifested with associated shoulder pain, citing a medical article. In pertinent part, the article states: Cervical pathology may manifest with associated shoulder pain. The area of referred pain is along a dermatomal pattern consistent with the distribution of the dermatomal nerve roots. Isolation of the pain usually defines the exact location of the associated cervical pathology. It can be differentiated from shoulder pain on the basis of history, physical examination, EMG, cervical radiographs, and myelography or MRI when indicated. The Board finds a July 2013 independent medical expert's opinion to be the most probative evidence as to whether the Veteran's shoulder pain was actually a result of cervical pathology. This opinion has been afforded high probative value as it is based on the relevant evidence of record and includes a supporting rationale. This opinion is also supported by other evidence of record, such as the documented history of an injury to the shoulder and diagnostic testing. Specifically, the independent medical expert opined that it is less likely than not that any shoulder event could have reasonably contributed in a causal way to the neck arthritis. In support of this opinion, the examiner notes that the records reflect degenerative changes of the cervical spine and no evidence of trauma or healed remote trauma. He also noted that were there any immediate cause of his neck condition by his shoulder condition, it would be unlikely that there would be a three year delay in the symptoms that first appeared in 1995. As an aside, the Board notes that the delay was actually even greater as the fall was in 1988. Therefore, the symptoms manifested approximately 3 years after discharge from service, but 7 years after the fall. Essentially, the independent medical expert has opined that had the Veteran had cervical pathology at the time of his fall there would be diagnostic evidence of trauma and the radicular symptoms would likely not have been delayed by three years. Of particular importance, the independent medical expert's opinion is based on history and a lack of evidence of trauma on diagnostic testing, which is what the article cited by Dr. C.B. indicates can be used to differentiate shoulder pain. In his opinions, Dr. C.B. has attempted to discredit the opinion offered by the neurosurgeon in December 2012 and the opinion offered by the independent medical expert in July 2013. In the February 2013 opinion, Dr. C.B. discounts the December 2012 opinion from a VA neurosurgeon for several reasons. Despite some concern that Dr. C.B. is providing what appears to be a representative's legal argument rather than an "independent medical evaluation" as he so claims, the Board will address these contentions in turn. Doctor C.B. states that the neurosurgeon did not discuss the Veteran's loss of consciousness or the relationship between head injuries and neck injuries. This is to be expected as the medical evidence does not reflect any head injury or loss of consciousness related to the fall in 1988. In any event, a medical examiner is not required to discuss all evidence favorable to an appellant's claim. See Roberson v. Shinseki, 22 Vet. App. 358, 366 (2009); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (explaining that it is the Board, not the medical examiner, that has the duty to discuss favorable evidence in a statement of reasons or bases). Next, Dr. C.B. states that the neurosurgeon did not provide any literature to support her opinion, did not discuss literature referenced by Dr. C.B., and did not provide an alternative diagnosis to explain the spinal stenosis at an early age. An examiner is not required to cite medical journals or offer theories as to etiology. Again, it is the Board's duty to discuss and weigh the evidence. See Gabrielson, 7 Vet. App. At 40. Doctor C.B. further argues that the neurosurgeon's opinion is cursory and without significant rationale. While the neurosurgeon's opinion may not be verbose, the Board finds the noted lack of medical evidence of an injury or relevant complaints to be adequate support for the opinion offered. Finally, Dr. C.B. discounts the neurosurgeon's opinion as she did not provide a C.V. (curriculum vitae). The United States Court of Appeals for Veterans Claims (Court) has found unpersuasive arguments that VA did not establish the examiner's competence. Cox v. Nicholson, 20 Vet. App. 563 (2007). In Cox, the Court held that there is no error in VA presuming the competency of an examiner absent evidence casting doubt on the examiner's competence and qualifications. Id. at 569. There is no evidence in this case casting doubt on the competence or qualifications of the examiner (a neurosurgeon and chief of neurological surgery at a VA Medical Center). The Board presumes the competence of the neurosurgeon. Doctor C.B. also cites to Hyder v. Derwinski, 1 Vet. App. 221 (1991). In that case, the Court found that VA breached the statutory duty to assist by not conducting the supplemental examination recommended by its own physician. Id. at 225. Here, the VA neurosurgeon and the independent medical expert have not recommended any supplemental examination. The holding in Hyder does not affect the probative weight of the VA neurosurgeon's opinion or the independent medical expert's opinion in the present case. In September 2013, Dr. C.B. presented similar quasi-legal arguments to discount previous medical opinions. Of note, Doctor C.B. states that he is "uncertain/dubious" that the VA-related physicians are "fully qualified physician[s]." As discussed above, the Board presumes the competency of the neurosurgeon who offered an opinion in December 2012. The Board also presumes the competency of the examiner who provided an independent medical expert opinion in July 2013. This physician is an assistant professor at a major University and works in the University's medical center, specializing in adult spine surgery. There is absolutely no reason to doubt the competency of this physician. Doctor C.B. also attempts to discount the previous opinions by noting that there was no discussion of "literature concerning etiology". In this regard, there is simply no indication that those offering medical opinions in this case, physicians specializing in spinal surgery, do not understand the basic principle of etiology and Dr. C.B. has not pointed to any evidence suggesting differently. In summary, there are no complaints, diagnosis, or treatment for the cervical spine in service, and in 2013 the Veteran told his private physician that his neck pain began in 1995, after his separation from service. Thus, neck pain is not shown during service. To the extent that the Veteran's shoulder pain could represent cervical pathology, the Board finds the negative opinion on this matter offered by the independent medical expert to be the most probative evidence. As the preponderance of the evidence is against a finding of in-service incurrence or aggravation of a disease or injury to the cervical spine, service connection is not warranted on a direct basis. See 38 C.F.R. § 3.303. In addition, there is no evidence of arthritis or any other presumptive disease manifested in the year after the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1131, 1133 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Thus, a disability cannot be presumed to have been incurred or aggravated in service. II. Secondary Service Connection VA has determined that the Veteran's left shoulder disability is related to service, and granted service connection for strain and dislocation of the left shoulder with degenerative changes. The Veteran now claims that he has a cervical spine disability that is proximately due to or aggravated by the left shoulder disability. See 38 C.F.R. § 3.310 (2013). Specifically, at a November 2005 hearing, the Veteran testified that his neck pain was an extension of his left shoulder disability, as the neck pain was more on the left side. The Veteran's wife also submitted a statement detailing the Veteran's current complaints and her belief that the cervical spine problems are secondary to his left shoulder disability. The Veteran presented for a VA examination in April 2005 to determine the nature and etiology of his cervical spine disorder. However, the examiner did not address whether the cervical spine disability was related to the Veteran's left shoulder disability. Instead, the examiner opined that the Veteran's shoulder pain was not caused by the cervical disc problems. Additional VA medical opinions addressing secondary service connection were obtained in August 2007, December 2010, and January 2012. However, as the examiners provided no description of literature they referenced, and none of the opinions contained any information or analysis specific to the Veteran's appeal, these opinions are not adequate for purposes of deciding this appeal. As a result, the Board requested an expert medical opinion from the Veterans Health Administration. In December 2012, a VA neurosurgeon opined that is not at least as likely as not that the Veteran's current cervical spine disability is proximately due to or the result of his service-connected left shoulder disability. In support of this opinion, the neurosurgeon cited medical literation indicating that the relationship between chronic type III acromioclavicular joint dislocation does not interfere with osteophyte formation or intervertebral disc narrowing. The neurosurgeon opined that there is no logical, biomechanical, or anatomical relationship to a shoulder injury causing degenerative changes (spondylosis) in the cervical spine. She further observed that review of the scientific literature revealed no reported association, which was consistent with her personal opinion based on 16 years as a board certified neurosurgeon. In May 2013, the Veteran's representative argued that the December 2012 opinion should be discounted, noting that it is unclear if the Veteran's disability is consistent with a type III acromioclavicular dislocation, and if not, why the study would be relevant, and did not directly discuss whether complaints of overuse to compensate for a left shoulder disability would have worsened a cervical spine condition. The Board finds the December 2012 opinion to be adequate and highly probative as to the question of whether the Veteran's current cervical spine disability was caused by his service-connected left shoulder disability. The neurosurgeon reviewed the relevant evidence and provided an opinion with supporting rationale and citation to medical literature. In addition, the neurosurgeon's opinion was not based entirely on the medical article she cited. She also relied upon her experience as a neurosurgeon for 16 years and a lack of "logical, biomechanical, or anatomical relationship to a shoulder injury causing degenerative changes (spondylosis) in the cervical spine." The examiner was fully aware of the Veteran's disabilities and still opined that the factors discussed above weighed against a finding that the cervical spine disability was caused by the left shoulder disability. The Board recognizes that while the neurosurgeon addressed causation in December 2012, she did not adequately address aggravation. As such, the Board requested an independent medical opinion. In a July 2013 opinion, an independent medical expert opined that it is not at least as likely as not that any current cervical spine disability was caused or aggravated by the Veteran's service-connected left shoulder disability. This opinion has been afforded high probative value as the independent medical expert reviewed the relevant evidence and provided an opinion with supporting rationale. Of note, Dr. C.B.'s arguments for why the independent medical expert's opinion should be discounted are discussed in the previous section. The Veteran's representative argued in a September 2013 brief that the July 2013 opinion is inadequate because the rationale provided by the independent medical expert is the same for the questions of causation and aggravation. Essentially, the representative is arguing that the expert did not adequately address the theory of secondary aggravation. However, when reading the entire opinion the Board finds that the independent medical expert has provided an adequate rationale for both theories of entitlement to service connection on a secondary basis. See 38 C.F.R. § 3.310. The independent medical expert noted that in his spine only practice as well as his history with orthopaedic training and his prior history as a physical therapist, he had seen numerous patients with shoulder problems and histories similar to this that have not developed and do not develop any significant cervical spine pathology. Additionally, he commented that in his practice he sees people with neck and shoulder problems combined but there has never been any evidence of a causal link of a primary shoulder problem causing arthritis or radiculopathy in the neck. The independent medical expert further explained that regarding aggravation, review of the literature is not helpful as there is no literature that would address the situation and therefore, it is more of a commonsense and experience based opinion. The Board reads this opinion as a whole as saying that based on the independent medical expert's experience in dealing with patients with both shoulder and neck problems, some with situations similar to the Veteran's, it is less likely than not that the Veteran's cervical spine disability was aggravated by the left shoulder disability. The Board notes that no competent evidence has been presented to suggest that the left shoulder disability aggravated the neck disability. Doctor C.B. did not provide any opinion regarding secondary service connection. In fact, Dr. C.B. has made clear that his opinion is that the current cervical spine disability is the result of the Veteran's fall during service, even noting that previous opinions all focus on the wrong narrow question of whether the left shoulder disability caused the neck degenerative changes. The Board recognizes that in March 2010, the Veteran's representative argued that private physical therapy notes from 2007 amounted to an opinion that the left shoulder contributed to the current spinal disorder. In these treatment notes, the physical therapist indicates that the Veteran's functional limitations are secondary to faulty sitting and scapular posture, muscular imbalances, muscular tightness, joint restriction, soft tissue restriction, pain, and inflammation. The Board fails to see how this represents an opinion in favor of the Veteran's claim. The statements simply do not address a relationship between a shoulder disability and a neck disability, and there is no reason to read such an implication into the report. The Board also recognizes that in May 2002 a VA physical therapist noted that contribution of cervical spine to shoulder symptoms was likely. This statement does not support the Veteran's secondary service connection claim as the physical therapist is noting that the cervical spine may be affecting the shoulder, not the other way around. In summary, the medical opinions in this case are against a finding that the Veteran's current cervical spine disability is caused or aggravated by his service-connected left shoulder disability. These opinions are the most probative evidence as to this question, and as a result the claim for service connection on a secondary basis must be denied. ORDER Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected left shoulder disability, is denied. ____________________________________________ Laura H. Eskenazi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs