Citation Nr: 1342507	
Decision Date: 12/23/13    Archive Date: 12/31/13

DOCKET NO.  07-10 444	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1. Entitlement to service connection for a cervical spine disorder.

2. Entitlement to service connection for a sinus disorder.

3. Entitlement to service connection for right ear hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

A. G. Alderman, Counsel


INTRODUCTION

The Veteran served on active duty from April 1997 to August 1997 and from May 2001 to October 2001.  The Veteran also served with a reserve component from November 1996 to November 2004.

This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2006 and August 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  In March 2011, the Board remanded the appeal to provide the Veteran with a hearing he had requested.  In August 2011, the Veteran testified at a hearing before the undersigned.  A transcript of that hearing has been associated with the claims file.

In November 2011, the Board issued a decision denying the Veteran's claims for service connection for a cervical spine disorder and right ear hearing loss and remanding the claim seeking service connection for a sinus disorder.  The Veteran appealed the Board's denial of service connection for a cervical spine disorder and hearing loss to the United States Court of Appeals for Veterans Claims (Court).  In an Order dated December 2012, the Court granted a Joint Motion for Remand (JMR) and vacated the Board's decision as to these issues for compliance with the instructions in the Joint Motion.  The JMR was granted because the Board had provided inadequate reasons and bases for the previous decision to deny service connection for a cervical spine disability and right ear hearing loss.  As for the remanded claim, the Board's remand directives have been substantially completed; however, additional development must be completed prior to adjudication of the claim.  See Stegall v. West, 11 Vet. App. 268 (1998).

The issues of entitlement to service connection for right ear hearing loss and a sinus disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The preponderance of the competent and credible evidence is against a finding that the current cervical spine disorder is related to service and there is no evidence of compensable cervical spine arthritis within one year of the claimant's separation from his second period of active duty.


CONCLUSION OF LAW

A cervical spine disorder was not incurred in or aggravated by military service and arthritis of the cervical spine may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

Under 38 U.S.C.A. § 5102, VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A.

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  See 38 U.S.C. § 5103(a).

As to all the issues on appeal, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status.

Next, the Board finds that letters dated in October 2005 and March 2006, prior to the April 2006 and August 2006 rating decisions, along with a letter dated in July 2006, provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess.  Moreover, the Board finds that even if the Veteran was not provided adequate notice prior to the adjudication of the claims that providing him with adequate notice in the above letters followed by a readjudication of the claims in the July 2008 supplemental statements of the case, "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudications.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  Furthermore, the Board also finds that even if the above letters did not provide adequate notice that this notice problem does not constitute prejudicial error because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letters as well as the rating decisions, the statements of the case, and the supplemental statements of the case.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the 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.  Here, during the Board personal hearing, the VLJ noted the elements of the claims that were lacking to substantiate the claims for service connection.  The Veteran was assisted at the hearing by his accredited representative.  Specifically, the representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disabilities are related to his complaints during service.  No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or the representative.  The hearings focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for service connection.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012).

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records and his post-service records from the Lincoln, Des Moines, and Omaha VA Medical Centers as well as from Dr. Gilberto Collazo and Dr. Dave Felber.

As to the claim of service connection for a cervical spine disability, the record shows that the Veteran was afforded a VA examination in January 2007 that the Board finds is adequate to adjudicate the claim because the examiner reviewed the claims file, conducted an in-depth examination of the claimant, and thereafter provided a medical opinion as to the origin or etiology his disorder as well as a rational for the opinion that was supported by citation to evidence found in the record.  See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

Service Connection

The Veteran contends that his cervical spine disability was caused by his active duty for training (ACDUTRA) from April 1997 to August 1997 and/or his deployment to the Persian Gulf from May 2001 to October 2001.  Specifically, he claims he fell while on active duty and injured his neck when he struck his head.  He also claims his cervical spine disability was caused by the physical demands of his job as an infantryman including having to carry a pack that weighed over 200 pounds and go on patrol carrying the barrel of a 50 caliber machine gun or carry the M60 machine gun.

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Additionally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training or injury incurred or aggravated while performing inactive duty training.  38 U.S.C.A. §§ 101(24), 106, 1110, 1131.

Certain chronic diseases, such as arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service.  See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson, 581 F. 3d 1313; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).

In determining whether service connection is warranted for a disability, 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 (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.

In this case, the evidence shows that the Veteran has been diagnosed with cervical spine musculoligamentous strain and mechanical neck pain during the pendency of the claim.  Therefore, the first element for service connection has been met.  Davidson, 581 F.3d 1313.  Unfortunately, for the reasons discussed below, the evidence does not show a nexus between the current disorder and service or show the onset of a chronic disease during or within one year of separation from service.  Id., 38 C.F.R. §§ 3.303, 3.307.

The Veteran's DD 214 lists his occupational specialty as Infantryman and shows he served in Kuwait from June 2001 to October 2001.  The Board finds that the Veteran is competent and credible to report on having to go out on patrols carrying hundreds of pounds of equipment even when not documented in his service treatment records.  See Davidson, 581 F. 3d 1313; Buchanan, 451 F. 3d 1331; Jandreau, 492 F. 3d 1372; Charles, 16 Vet. App. 370.

The Veteran is also competent to report that he fell and hurt his neck during service and to state that he has had cervical spine pain and lost motion since the fall.  Likewise, the Board finds that the Veteran's buddies, who in November and December 2005, filed with the RO statements describing what they saw when they served with the claimant on active duty, including neck pain and/or a neck injury, are competent to report on what they saw.  Id.  However, the Board finds that the Veteran's, his buddies', and his representative's statements regarding in-service onset and continuity of cervical spine symptoms since service are not credible as the statements are contrary to the evidence found in the service records and medical evidence dated subsequent to service.  Here, service treatment records, including the October 2001 separation and post-deployment examinations, are negative for any incident in which the Veteran was treated following a fall.  Records also fail to show complaints or treatment for symptoms of and/or a diagnosis of a cervical spine disorder while on active duty.  In fact, at separation, the clinical examination of the Veteran's neck and spine were normal and the Veteran did not indicate neck pain on the accompanying report of medical history form.

The first indication of neck pain is recorded in private treatment records dated June 2004, almost three years after separation from service.  The diagnosis was cervical myositis.  The Board finds probative the fact that the Veteran did not complain of neck pain during his appointments with private providers in July or August 2002, or in February, May, June, or October of 2003.  This gap between service and the first complaint of neck pain, especially when treatment records show multiple appointments between service and June 2004 without complaint of neck symptoms, weighs against the credibility of the lay statements regarding inservice incurrence and continuity of symptoms subsequent to service.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd., 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).

Also weighing against the claim is the January 2007 VA examination.  After reviewing the claims file and interviewing and examining the Veteran, the examiner diagnosed cervical spine musculoligamentous strain based on the symptoms described by the Veteran.  The examiner said the X-rays showed no significant pathology and that there was inadequate evidence to link the neck complaints to events or injuries in service.

Further, the Board finds that the Veteran's, his buddies', and his representative's assertions regarding a nexus between the current cervical spine disability and the claimed in-service neck injury are not competent.  Cervical spine conditions may not be diagnosed by unique and readily identifiable features because special equipment and testing is required to diagnose chronic spine disorders and therefore the presence of disorders is a determination "medical in nature" and not capable of lay observation.  Id.  Therefore, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that lay opinions regarding the etiology of the current cervical spine disability are not competent evidence. 

The Board finds more compelling and credible the service treatment records, including the normal October 2001 separation and post-deployment examinations, which are negative for complaints, diagnoses, or treatment for a fall or a cervical spine disability, and which include a medical opinion that he did not have a cervical spine disability at the time of his separation from his second period of active duty than the Veteran's and his buddies' claims of having problems with his neck since his alleged fall and/or over use of his neck while carrying heavy loads while on active duty.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd., 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).

The Board also finds probative the January 2007 VA examination report which shows the examiner found no nexus between the Veteran's current cervical spine disorder and service.
Accordingly, because the evidence does not show a nexus between the current cervical spine disability and service, the Board finds that entitlement to service connection for a cervical spine disability based on in-service incurrence during either ACDUTRA, inactive duty for training (INACDUTRA), and/or active duty must be denied despite the fact that the Veteran, as an infantryman, was expected to perform his duties while carry very heavy loads.  38 U.S.C.A. §§ 101(24), 106, 1110, 1131; 38 C.F.R. § 3.303(a).

The Board has also considered whether service connection is warranted under the presumptive provisions of 38 C.F.R. §§ 3.303(b) and 3.307, but finds that treatment records dated during and subsequent to service do not show a diagnosis of arthritis or any other chronic disorder listed under 38 C.F.R. § 3.309(a).  As such, without evidence of a chronic disorder listed under 38 C.F.R. § 3.309(a), service connection under the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 or based on continuity of symptomatology under 38 C.F.R. § 3.303(b) is not warranted.  38 U.S.C.A. §§ 101(24), 106, 1101, 1112, 1113, 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309.

Accordingly, the Board must conclude that the weight of the evidence is against the claims of service connection for a cervical spine disability.  See 38 U.S.C.A. §§ 101(24), 106, 1110, 1131; 38 C.F.R. § 3.303.  The evidence is not so evenly balanced to apply the benefit of the doubt doctrine.  38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. 49.


ORDER

Entitlement to service connection for a cervical spine disability is denied.


REMAND

The Veteran is seeking service connection for a sinus disorder.  In July 2006, a VA examiner determined that the Veteran has a smaller maxillary sinus on the right side.  In November 2011, the Board remanded this matter to obtain a VA opinion indicating whether the Veteran's pre-existing sinus disorder clearly and unmistakably was not aggravated by his periods of service.  An opinion was obtained in January 2012.  In the opinion, the examiner said the Veteran's pre-existing sinus disorder was not aggravated beyond the natural progression of the disease during service.  The examiner felt that the Veteran's symptoms were consistent with allergic rhinitis but did not offer any opinion regarding allergic rhinitis and its relationship to service.  The Board therefore finds that the VA examination is inadequate and that a remand is necessary to obtain another VA opinion that appropriately addresses the Veteran's sinus/rhinitis condition.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Veteran also seeks service connection for right ear hearing loss.  In November 2011, the Board denied service connection for right ear hearing loss.  The Veteran appealed and in the Joint Motion for Remand, the parties determined that the Board did not adequately discuss the rationale provided by the VA audiologist in the VA examination report.  The parties essentially found that the rationale is inadequate.  As such, the Board finds that a remand is necessary to allow for the scheduling of a new VA audiology examination to determine the etiology of the Veteran's right ear hearing loss.  See Barr, 21 Vet. App. 303, 311.

Accordingly, the case is REMANDED for the following action:

1. Obtain VA treatment records for the Veteran from the Omaha, Nebraska, VA Medical Center and any associated outpatient clinic dated from May 2012 to the present.  All attempts to obtain those records must be documented in the claims file.

2.  After the above development has been completed, send the Veteran's claims file and copies of pertinent records on Virtual VA, if any, to the VA examiner that conducted the January 2012 examination and provided the February 2012 addendum opinion for the Veteran's sinus condition.  

The examiner should be asked to provide an addendum opinion indicating whether it is at least as likely as not (50 percent or greater probability) that the Veteran's allergic rhinitis had onset during or is in any way related to his periods of active military service.

The examiner should specifically discuss any lay evidence provided by the Veteran in the claims file or during the examination.

If the January/February 2012 VA examiner is not available to provide the requested addendum opinion, another qualified examiner should be asked to provide it.

If the examiner cannot provide the requested opinion without examining the Veteran, an examination must be scheduled.

All opinions must be accompanied by a complete rationale.

3. Schedule the Veteran for a VA examination to determine the nature and etiology of his right ear hearing loss.  The claims file and copies of pertinent records on Virtual VA, if any, must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed.

The examiner should state the nature and type of any diagnosed right ear hearing loss (i.e., sensorineural, conductive, etc) loss disability.

All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies, to include an audiogram, must be accomplished.  Specifically, the results of the audiological evaluation must provide the findings of puretone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz, the puretone threshold average, and the results of the word recognition test, in percentages, using the Maryland CNC test.

The examiner should also record a history of in-service and post-service noise exposure.  The examiner must consider the competent statements of the Veteran and other lay statements of record as to the onset and continuity of symptomatology since service.

Based on a review claims file, examination of the Veteran, and generally accepted medical principles, the examiner should provide a medical opinion, with adequate rationale, as to whether it is as at least as likely as not  (50 percent or greater probability) that any currently diagnosed right ear hearing loss disability was incurred in or aggravated by the Veteran's periods of active military service, to include noise exposure therein.

In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause.

The examiner must specifically acknowledge and discuss any reports by the Veteran that his hearing loss was first manifested during his periods of service.

4. Notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2013).

5. Readjudicate the issues on appeal.  If any benefit sought on appeal remains denied, issue an additional supplemental statement of the case.  After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board.

The Veteran has the right to submit additional evidence and argument on the 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. 2012).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs