Citation Nr: 1341491 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 08-22 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected left shoulder disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran testified at a hearing before the undersigned in June 2010. A transcript of that hearing is of record. The Board previously remanded the Veteran's claim for further evidentiary development in August 2010, February 2011, May 2012, and February and July 2013. Since the most recent supplemental statement of the case in this case, additional medical records were submitted without a waiver of Agency of Original Jurisdiction (AOJ) review. These records are, however, either duplicative of records already in the Veteran claims file or are not applicable to the current claim. Therefore, a remand of this matter for initial RO consideration is not required in this case. The Board notes that, in addition to the Veteran's 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 Veteran's claims file and will proceed with review of the claim 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 Cervical spine disability, to include degenerative disc disease, did not originate in service or within one year of service, nor is such disability otherwise etiologically realted to service. CONCLUSION OF LAW The criteria for an award of service connection for cervical spine disability, to include degenerative disc disease, 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 FINDING AND CONCLUSION I. VCAA. In letters dated in November 2006 and May 2011, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was also afforded multiple VA examinations which, taken together, are adequate to decide the claim. In this regard, Board notes that this matter has been remanded on several occasions in order to fully develop the claim. Most recently the case was remanded in July 2013 in order to: (i) obtain a complete copy of the Veteran's VA treatment records from the East Orange VA Health Care System, and/or any appropriate custodian facility of records of earlier treatment provided through the VA facility in Newark, New Jersey, dated since the time of the Veteran's separation from service, and any additional VA treatment rendered since February 2012, and (ii) afford the Veteran additional VA opinion concerning his claim. Upon remand, relevant records were requested. Additional VA treatment records dated since February 2012 were obtained. Additional records dated since the Veteran separation from service were not available. The Veteran was also afforded additional VA opinion that substantially complied with the Board's July 2013 remand directives. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) 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 cervical spine disability. The Veteran's service treatment records indicate that the Veteran sought treatment for left and right shoulder complaints after a motor vehicle accident in service. A dislocated left shoulder was set in the field subsequent to injury. The Veteran contends that his neck was injured in this incident and that he had neck pain in service and subsequent to service up to the present. The Veteran has been afforded numerous VA examinations and opinions in connection with his claim . A June 2008 VA examination for the Veteran's left shoulder noted that the Veteran had complaints of pain in the neck radiating to the left shoulder and arm, which was noted to have started five years before. The Veteran also had complaints of left shoulder pain that was not as severe as the pain in his neck. An x-ray dated in September 2006 indicated diffuse degenerative changes throughout the cervical spine. After examination, the Veteran was diagnosed with right cervical radiculopathy and cervical spondylosis at C4-7 and left shoulder pain likely secondary to rotator cuff tendinitis. No opinion was provided regarding these disorders. As the Veteran had testified to continued neck complaints since separation from service and because the Veteran's service treatment records included a March 1956 note that the Veteran had sustained a right shoulder fracture two years previously (thus, prior to service) while playing football, the Board in August 2010 remanded this matter for the purpose of obtaining an opinion as to the etiology of any current left shoulder and neck disorder. The Veteran was afforded a VA examination dated in September 2010. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The history of a motor vehicle accident in 1957 was noted as well as the Veteran contentions that he injured his neck and shoulder at that time. The Veteran reported that over the years he had been getting neck pain and discomfort that radiated down his left arm and into the hand. After examination, the Veteran was diagnosed with left shoulder impingement syndrome, cervical degenerative disc disease, and left cervical radiculopathy. The examiner stated that, based on the claims file, patient's history, and the examination, the Veteran left shoulder condition was at least as likely as not due to military service, but that the neck condition was not related to his military service. The examiner stated that he saw no evidence of neck pain at the time of the accident or through the years. The Veteran reported that his neck pain had been getting worse over the past few years and this was most likely due to degenerative disc disease. The examiner opined that a spinal injury in a motor vehicle accident in 1957 would have had to have been rather more severe to cause degenerative disc disease all these years later and the Veteran should have been complaining of neck pain at the time, which was not the case. In February 2011 this matter was remanded again. In that decision, the Board found that the evidence suggested the possibility that his neck disability may be related to his service connected left shoulder disability. As the VA joints examination in September 2010 did not opine on this question, the Board found that record lacked an adequate nexus opinion for consideration of secondary service connection. An additional VA examination was afforded to the Veteran dated in March 2011. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran's medical history was noted in the record. After examination, the Veteran was diagnosed with left shoulder impingement syndrome, cervical degenerative disc disease, and left cervical radiculopathy. The examiner opined that, after reviewing the Veteran medical records, medical history, and recent x-rays, the Veteran cervical spine or neck condition was not related to or caused by his service-connected left shoulder impingement syndrome. The examiner stated that, although the Veteran had a serious left shoulder condition, he knew of no shoulder condition, no impingement type syndrome, which would cause excessive wear and tear on the cervical spine so as to cause degenerative disc disease. The examiner then stated that the Veteran's cervical degenerative disc disease was due to daily wear and the aging process. This matter was again remanded on other occasions for additional development and opinion. A June 2012 addendum opinion repeated findings that the Veteran's cervical degenerative disc disease was related to his military service. Even though the Veteran was in a motor vehicle accident in service and had a shoulder injury, there was no injury to his neck at that time. The examiner stated that the Veteran's current degenerative disc disease was due to daily wear and tear. The examiner noted that the Veteran was 77 years old and stated that it was virtually impossible to find someone who is 77 years old who did not have cervical degenerative disc disease. The examiner continued by stating that, if the Veteran's current cervical degenerative disc disease was due to his military service and the specific motor vehicle accident, he should have had a severe neck injury and should have complained and been treated for that at the time. He also indicated that the Veteran should have been treated soon after discharge as well which, the examiner noted, was not the case. A July 2012 addendum noted that the examiner had reviewed the Veteran's claims file in connection with the June 2012 report. The Veteran was again examined by VA in March 2013. The examiner reviewed the Veteran's claims file in connection with the examination and report. (This was noted in an April 2013 addendum). The Veteran was diagnosed with cervical spondylosis and cervical degenerative disc disease. The Veteran medical history was noted in the record. The examiner noted that there were no complaints of neck pain until September 2006. After examination, the examiner stated that the Veteran's claimed 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 examiner explained that there was no indication that this Veteran had problems with his cervical spine until 50 years after he was in the service. By that time, the Veteran was in his 70s and had been working as a longshoreman, a heavy classification. The examiner found that it was much more likely that his neck problems were due to many years of manual labor and the aging process than they were due to an injury that took place 50 years before symptoms began. The examiner also opined that the Veteran's cervical spine disability was less likely due to or the result of the Veteran's service-connected left shoulder. The examiner stated that there is no indication that the Veteran's cervical spine problems were caused or aggravated by either his left or right shoulder problems from his time in service. From a review of the claims file and medical records, the examiner stated that it appeared that the shoulder problems were not severe. Although the Veteran began receiving care at the VA in 2000, the first mention of left shoulder pain was in 2008, after he first complained of neck pain in 2008. Private medical evidence was submitted by the Veteran dated in May 2013. In this report, the Veteran indicated a history of left-sided neck pain, radiating symptoms to the left upper extremity. The in-service motor vehicle accident was noted and the Veteran reported that neck symptoms had been on and off since then. The physician indicated that this was a chronic problem that had recently become more pronounced. No specific opinion regarding nexus to service was indicated. Finally, a VA examination was conducted in July 2013. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The examiner also indicated that the most recent Board remand language was reviewed along with the May 2013 private physician's report. Again a negative opinion concerning nexus to service was offered. The examiner stated his opinion, sometimes strongly, that the medical evidence did not support the Veteran's contentions that he had cervical symptoms since military service. The examiner went through the evidence, including the recent May 2013 submission , as well as other outpatient records and reports. He then found that the Veteran's first documented complaints of neck pain were in September 2006 and that the Veteran denied neck complaints in other treatment records dating between 2000 and 2006. The examiner also noted that the Veteran did not have complaints of neck pain in service and that he worked for many years after service in heavy manual labor. The examiner reiterated that there was no evidence that the Veteran service-connected shoulder disability caused or aggravated his cervical spine and repeated many of the opinions already set forth in previous examination reports. In the end, after a lengthy opinion and analysis, the examiner found that it was less likely as not that the Veteran diagnosed cervical spine disability had its clinical onset during the Veteran's active service or that it was related to any in-service disease, event, or injury, to include his in-service motor vehicle accident. The examiner also found that it was less likely that the Veteran's diagnosed cervical spine disability was caused or aggravated by his service-connected left shoulder disability or related to a right shoulder fracture sustained prior to service. Nor was the condition aggravated by the Veteran's service, including the in-service motor vehicle accident. The examiner addressed the Veteran's contentions that he has had symptoms related to his neck condition since service. In this regard, the examiner stated that, not only was there no objective evidence of to support the Veteran's contentions of continuity since service, but that there was rather more substantial objective documentation to the contrary. Finally, the examiner addressed the question of a September 2007 statement from the Veteran's private physician. The examiner found that the 2007 note was largely illegible and indicated that, even should it be interpreted as favorable to the Veteran, there was nothing indicating that this physician had access to any prior medical records, including service medical records. As such, the examiner stated that he assumed that the opinion was based on the Veteran's reported history which the examiner then discounted as contrary to the medical evidence of record. Based on the foregoing, the Board finds that entitlement to service connection for a cervical spine disability is not warranted in this case. Here, the Veteran has been diagnosed with cervical degenerative disc disease. However, multiple VA examinations dating back to 2010 have all found that the diagnosed disorders were not caused or aggravated by the Veteran military service or a service-connected disability. 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 examiners in this case to be most persuasive, based as they were on examinations of the Veteran and his claims file. In addition, the Board notes that the Veteran has contended on his own behalf that his claimed disability began in service, specifically as a result of the motor vehicle accident in 1957, and that he has had cervical symptoms since that time. 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 neck condition is a complex medical question, beyond the competency of a layperson. The Board further finds that the question regarding the relationship between such disability 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. First, given that neither arthritis nor arthritis symptoms were noted in service records, the provisions of 38 C.F.R. § 3.303(b) are not for application. Second, even assuming that regulation is applicable in this case, the Board noted that the VA examiners that have reviewed the Veteran claims file have concluded that the medical does not support the Veteran's contentions in this regard. The Board finds that the Veteran's contentions regarding the etiology of his conditions, as well as his allegations of continuity of symptomatology, are outweighed by the competent and probative VA medical examiner's findings. The Board attaches the most probative value to these opinions as they are well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The VA examiner's opinions were based on review of the Veteran's claims file and an examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The VA examiner's opinion, rendered by a medical professional, is afforded significant probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the probative value of medical opinion evidence is based on the personal examination of the patient, the knowledge and skill in analyzing the data, and the medical conclusion reached); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and has sound reasoning for the conclusion.) In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claim. 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 claim, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON THE NEXT PAGE) ORDER Service connection for cervical spine disability, to include degenerative disc disease, is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs