Citation Nr: 1339970 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-09 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a cervical spine (neck) disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Hubers, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1959 to May 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In January 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board, in August 2011, remanded the issue of entitlement to service connection for a neck disability to the Appeals Management Center (AMC), in Washington, DC, for the development of additional evidence, to include providing an examination to determine the etiology of any current cervical spine (neck) disability and obtaining additional medical records. The requested actions having been completed and the claim having been readjudicated by the AMC in a June 2012 Supplemental Statement of the Case, the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The weight of the evidence is against a finding that the Veteran's cervical spine (neck) disability either began during or was otherwise caused by his military service. CONCLUSION OF LAW The criteria for service connection for a cervical spine (neck) disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Prinicipi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, under 38 C.F.R. § 3.309(a), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). See Walker, 708 F.3d at 1338-39. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Veteran asserts entitlement to service connection for a cervical spine disability, to include arthritis. Arthritis is listed as a chronic disease under 38 C.F.R. § 3.309(a). Therefore, the Board will apply the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology in analyzing the Veteran's claim. The Veteran has asserted that he originally injured his cervical spine in 1968, more than 35 years ago, when he was hit on the head by a hatch while riding in a personnel carrier during service and that he received treatment for that injury while in service. Service treatment records (STRs) corroborate the Veteran's assertion regarding an in-service injury involving a hatch. See October 1968 Chronological Record of Medical Care ("Hit in chin with APC hatch"; "laceration"; "cleaned, sutured"). One week later, the sutures were removed. Id. While the STRs indicate that the Veteran complained of headaches prior to the incident with the hatch, they contain no record of complaints of headaches at the time the Veteran reported for treatment of the chin laceration or within the next year thereafter. Moreover, there is no indication that the Veteran complained of or sought treatment for any cervical spine (neck) injury or the residuals of the alleged cervical spine injury immediately after the 1968 hatch incident or at any other time during his active service. See, e.g., 1973 Report of Medical Examination (RME) (indicating "Upper Extremities" and "Spine, Other Musculoskeletal" are normal and noting scar on chin). Indeed, the January 1979 Report of Medical History filled out by the Veteran and the the January 1979 RME on the Veteran's separation examination both indicate that he did not have any pain or other symptoms in his spine, musculoskeletal system, or upper extremities. This is in contrast to his report of headaches on the January 1979 Report of Medical History and the Veteran's documented complaints, both prior to the chin injury and much later, of severe headaches, a condition for which the Veteran has been service-connected. The Veteran has alleged, consistently with those silent STRs, that there was a delayed onset of cervical spine symptoms. See, e.g., Letter in support of April 2006 Notice of Disagreement (indicating first post-service treatment for symptoms, including headaches, that he associates with his neck disability was in 1985); see also August 2007 Letter from Veteran ("It all started when the personnel carrier hatch hit me on the back of the head. I cannot help that this medical issue did not manifest itself until after I retired from the Army."); January 1995 Application for Treatment (Thomaston Chiropractic) ("Neck injury from when I was in service which showed up after I retired from service several years ago."); January 2011 Hearing Tr. at 6 ("Arthritis...takes years [] to start showing up. And that's what happened to me."). The Board finds, as the Veteran alleges, that his cervical spine disability did not manifest until years after the Veteran separated from the military. Based on the Veteran's own allegations and the medical records, the Board finds that the Veteran did not experience a chronicity of symptomatology relating to his cervical spine disability since service. The Veteran is not entitled to service connection for a cervical spine disability pursuant to 38 C.F.R. § 3.303(b). The Board must also determine whether the record supports granting direct service connection. See 38 C.F.R. § 3.303(a), (d). The first element of a direct service connection claim is a current disability. That element is not in dispute and was confirmed during the October 2011 VA Examination. Shedden, 381 F.3d at 1167. Moreover, the record, particularly the STRs and the Veteran's first-hand accounts, establishes that the Veteran did suffer an injury during service. Id. Thus, the remaining element is a causal nexus between the current disability and the in-service event or injury. Id. As an initial matter, the Board recognizes that the Veteran believes that his current cervical spine (neck) disability is related to his active service, specifically the incident involving the hatch. While the Veteran is competent to report (1) symptoms observable to a layperson (i.e. neck pain); (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, the Board need not find a lay Veteran competent to render opinions regarding etiology of a medically diagnosed condition nor need the Board give any probative weight to bald assertions by a lay Veteran regarding that subject. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). This Veteran, who lacks medical training, is not competent to opine on the etiology of his current cervical spine disability, a condition that was first diagnosed many years after the alleged in-service injury by a medical professional based on the results of diagnostic testing. See, e.g., Jandreau, 492 F.3d at 1377. The Board will turn, then, to the medical evidence of record. As noted in the introduction, this matter has previously been before the Board. In August 2011, the Board determined that the record contained insufficient competent medical evidence to make a decision on the claim of entitlement to service connection for a cervical spine disability and remanded the matter for further development. The Board will briefly discuss the medical evidence regarding etiology that was available prior to the August 2011 remand. In August 2011, the Board considered a January 2011 letter in which Dr. D.F states that the Veteran has increasing headaches and neck pain related to osteoarthritis of the cervical spine "probably related, indirectly, to injury several years ago and possible exposure to malaria and reduced immune system which makes him more susceptible to illnesses." The statement suggests a common etiology for the Veteran's headaches and his neck pain that involves, indirectly, the October 1968 hatch injury, possible exposure to malaria, and a "reduced" immune system. As briefly noted above, the Veteran's headaches, for which he is service-connected, began before the 1968 hatch injury. See April 1966 STR (recording complaints of severe headaches); July 1967 Report of Medical History (indicating frequent or severe headaches). In addition, the Board has previously determined that the Veteran has never had malaria. See Board decision date August 2011; see generally July 1967 STRs from Kenner Army Hospital (indicating malaria smears negative). Thus, key assumptions made by Dr. D.F. in connecting the Veteran's present neck pain to his active military service are in error. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion obtains probative weight from "factually accurate, fully articulated, sound reasoning for the conclusion"); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). More fundamentally, the 2011 statement is ambiguous in regard to which of several injuries "several years ago" may have precipitated the Veteran's arthritis. See, e.g., October 1992 Martin Army Hospital records ("Fell 30 [feet] - fx of 2 vertebrae"); see also Chiropractic Treatment Records dated August 1995 (noting that Veteran "had a wreck" that "spun the [Veteran's] truck around" and resulted in "moderate" neck pain), May 1997 (noting "2 minor falls"), February 2000 (noting Veteran "fell off horse twice"), and January 2001 (noting Veteran had "2 falls off of horse" and complained of a stiff neck). These facts do not support athe claim and provide some evidence against it. Dr. D.F. concluded his January 2011 letter with the statement: "[I]t is my professional med[i]cal opinion, the current condition which is chronic in nature and has persisted before 1996, is as likely a cause of his related military service, as not." Given the long list of conditions contained in the letter (including headaches, neck pain, hypertension, chronic bronchitis, allergies, and coronary artery disease) and given the various contributing factors identified by the physician (including the hatch injury, malaria, and a "reduced" immune system), Dr. D.F.'s opinion relating the Veteran's "current condition" to his military service is both too ambiguous and too conclusory to provide significant probative weight in favor of finding a causal nexus between the Veteran's current cervical spine disability and his active duty service (the only issue before the Board at this time). Nieves-Rodriguez, 22 Vet. App. at 304. The Board reaffirms its previous conclusion that Dr. D.F.'s January 2011 letter opinion is insufficient to establish a medical nexus. In August 2011, the Board also had before it the March 2006 letter of Dr. M.C., the Veteran's treating chiropractor. Dr. M.C. recounted the1968 incident as he understood it. From his description, it is not clear that Dr. M.C. understood that the hatch hit the Veteran in the back, rather than the top, of the head and that the Veteran was treated only for a chin laceration, rather than for head or neck injuries. Regardless, Dr. M.C. opined only that "[t]he arthritic changes in the cervical spine are consistent with an injury of the type reported by the patient in 1968." The Board interprets the phrase "consistent with" as merely suggesting a possibility that there is a causal nexus, rather than that the Veteran's current cervical spine disability is at least as likely as not (50% or greater likelihood) related to that injury. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2000) (medical opinions that only address possibilities are too speculative to establish a medical nexus); see also, Bloom v. West, 12 Vet. App. 185, 187 (1993) (opinion using term "could" was too speculative to provide the degree of certainty required for medical nexus evidence). Because of the factual ambiguity and the fact that Dr. M.C.'s conclusions were not stated with the requisite degree of likelihood, the March 2006 letter opinion is not sufficient medical evidence upon which to resolve the Veteran's claim of entitlement to service connection for a cervical spine disability. While the medical record contained other references to the October 1968 incident with the hatch and appears to record the Veteran's own surmise that his neck pain was caused by the 1968 injury, no other medical professional offered a specific etiological opinion relating the Veteran's current cervical spine disability to his active military service. This is particularly significant where the medical record documents several other injuries to the Veteran's neck and spine. See, e.g., October 1992 Martin Army Hospital records ("Fell 30 [feet] - fx of 2 vertebrae"); see also Chiropractic Treatment Records dated August 1995 (noting that Veteran "had a wreck" that "spun the [Veteran's] truck around" and resulted in "moderate" neck pain); May 1997 (noting "2 minor falls"); February 2000 (noting Veteran "fell off horse twice"); January 2001 (noting Veteran had "2 falls off of horse" and complained of a stiff neck). The Board finds, as it did in August 2011, that the above-summarized medical evidence is insufficient to decide the merits of the Veteran's claim. However, consistent with the August 2011 remand order, the Veteran was afforded a VA examination for the express purpose of addressing whether the Veteran's current cervical spine disability is etiologically related to his active military service. The examination was performed in October 2011. In arriving at his opinion, the VA examiner reviewed the entire claims file, including the Veteran's medical records and STRs, as well as imaging studies of the Veteran's cervical spine. Based on the imaging studies, the VA examiner confirmed the diagnosis of arthritis of the cervical spine. With regard to etiology, the VA examiner concluded that the Veteran's cervical spine condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner provided a detailed rationale for his conclusion, including a discussion of the specific diagnosis of the Veteran's cervical spine disability, the 2006 opinion of Dr. M.C., the service records relating to the October 1968 incident with the hatch, and subsequent medical records. The Board finds that the VA examiner's opinion is well-supported and well-reasoned and, therefore, attributes significant probative weight to that October 2011 opinion. The Board also notes that, subsequent to the August 2011 remand, additional medical records were obtained by VA. Those medical records provide further confirmation of the Veteran's current cervical spine disability (a fact not in issue), but do not include etiological opinions by competent medical professionals linking the Veteran's cervical spine disability to his active military service. The Board concludes, therefore, that the most probative and convincing evidence of record regarding the etiology of the Veteran's current cervical spine disability is the well-supported and well-reasoned October 2011 opinion of the VA examiner. Accordingly, the Board concludes that the evidence is not in equipoise on the claim of entitlement to service connection for a cervical spine (neck) disability and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). The Veteran's claim of entitlement to service connection for a cervical spine (neck) disability is denied. Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant case, notice was provided to the Veteran in November 2005 prior to the initial adjudication of his claims in April 2006. The Veteran was provided with updated notice in August 2007 prior to the readjudication of his claim in February 2008 and then, again, in June 2012. The contents of the notice letters fully comply with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. As the contents of the notice letters fully comply with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran. VA's duty to assist includes helping the claimant procure service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records, VA treatment records, and private treatment records with the claims file. With respect to records identified by the Veteran that have not been associated with the file, the VA has received verification that the records were destroyed or do not exist. See, e.g., July 2005 Statement of Veteran ("The Chiropractor...has retired and destroyed all her records."). Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. In this regard, it is important to note that the existence of the problem is not the critical issue, but whether the current disability is related to service. Therefore, additional treatment records, even if they had not been "destroyed", would be of limited value in this case. VA also satisfied its duty to obtain a medical examination. In October 2011, subsequent to the August 2011 remand by the Board, the VA provided the Veteran with an examination to address whether any current cervical spine (neck) disability is related to the Veteran's active service. The examination and subsequent report is adequate as the VA examiner reviewed the Veteran's pertinent medical history, conducted a clinical evaluation of the Veteran, and provided an adequate discussion of relevant symptomatology and possible causal nexus between the Veteran's cervical spine (neck) disability and his active duty service. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Therefore, VA has no obligation to obtain further medical examinations or opinions in connection with the claim of entitlement to service connection for a cervical spine disability. See 38 U.S.C.A. § 5103(A)(d); see also Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Entitlement to service connection for a cervical spine disability (neck disability) is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs