Citation Nr: 1506803 Decision Date: 02/13/15 Archive Date: 02/18/15 DOCKET NO. 12-25 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a neck disorder - including especially degenerative joint disease (DJD), i.e., arthritis of the cervical spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. He appealed to the Board of Veterans' Appeals (Board) from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2013, as support for his claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing has been associated with his claims file, so is of record. Following the hearing, the Board held the record open an additional 30 days to allow him time to obtain and submit additional supporting evidence, which he later did in December 2013. This additional evidence consists of a supporting private medical nexus opinion and additional lay statements regarding this alleged disability. The Veteran also waived his right to have the RO initially consider this additional evidence as the Agency of Original Jurisdiction (AOJ), preferring instead to have the Board do so in the first instance. 38 C.F.R. §§ 20.800, 20.1304 (2014). FINDING OF FACT The evidence is in relative equipoise, meaning about evenly balanced for and against the claim, as concerning whether the Veteran's cervical spine disorder is a result of his service, so it is as likely as not that it is. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the Veteran's cervical spine disorder was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), sets forth VA's duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing VA regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Since in this case, however, this claim is being granted, there is no need to discuss whether there has been compliance with these duty-to-notify-and-assist obligations. Even if, for the sake of argument, there has not been, this ultimately would be inconsequential and, therefore, at most amount to nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102. See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim). There simply is no such possibility in this instance. As for the November 2013 hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that a presiding Veterans Law Judge (VLJ) of the Board or hearing officer has two duties to comply with a pertinent VA regulation, 38 C.F.R. § 3.103(c)(2). The first duty is to explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the presiding VLJ or hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. There was compliance with these two duties, as the presiding VLJ - the undersigned - fully explained the issue on appeal and attempted to identify any evidence that might be missing from the record by asking the Veteran about his symptoms and treatment history. Indeed, this was partly the reason the Board held the record the additional 30 days following the hearing to allow him time to obtain and submit additional supporting evidence, which as mentioned he later did, as promised, in December 2013. Moreover, partly because of the receipt of this additional evidence, favorable to this claim, the Board is granting rather than denying or remanding the claim. II. General Statutes, Regulations and Precedent Cases Governing Claims for Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). In order to establish entitlement to direct service connection for a claimed disorder, the following must be shown: (1) that the Veteran has the claimed disability or that he at least has at some point since the filing of his claim for the disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship ("nexus") between the presently-claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases are considered chronic, per se, including arthritis, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For a showing of chronic disease in service, or within an applicable presumptive period, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). But service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) nonetheless has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicolson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). But in determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on his behalf. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Consider also that a Veteran is not competent to provide probative opinion on more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Whether lay versus medical evidence is needed to support a claim is determined on a case-by-case basis and dependent on the type of condition being claimed. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) ("[Competency] is a legal concept determining whether testimony may be heard and considered by the trier of fact, while [credibility] is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted."). Only if evidence is both competent and credible does it ultimately have probative value. In order to grant a Veteran's claim of entitlement to service connection for an alleged disability, VA must examine the evidence and determine whether the claim is supported or the evidence for and against it is in relative equipoise, meaning about evenly balanced, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also 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, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. Whether Service Connection is Warranted for a Neck/Cervical Spine Disorder The Veteran claims this disorder is the result of his military service. Specifically, he alleges that, in May 1968, he was in a helicopter crash in Vietnam, thrown from the chopper, injuring his neck/cervical spine. He says he was treated in DaNang for days, then assigned light duty owing to the extent of his injury, and nonetheless has experienced persistent pain and other associated symptoms ever since. He adds that his neck pain got progressively worse over the years, to the point he eventually had to have surgery on his cervical spine. A review of the Veteran's service treatment records (STRs) confirms that he was in a helicopter crash in May 1968. He sustained blunt injury to his cervical spine and was hospitalized for three days and placed on light duty for a month. In addition, later during his June 1969 military separation examination, he reported that he still had back pain and listed the helicopter crash that had occurred in May 1968 as the source or cause of his continuing pain. His military service ended in August 1969. The Veteran testified during his more recent hearing that he had seen various practitioners over the years since his service, because of his ongoing symptoms stemming from that injury in service, but that some of those private medical records are no longer available because the practitioners have died, etc. However, private medical records have been obtained from Dr. M.T., who the Veteran identified during his hearing as having treated him for over eight years for this disability now being claimed. A review of these records indicates the Veteran had received treatment since January 2007 for this disability. The Veteran had a VA compensation examination in June 2010 in response to his claim of entitlement to service connection for this disability. The VA examiner diagnosed DJD, i.e., arthritis of the cervical spine. So she confirmed the Veteran has current disability involving this segment of his spine. But as for causation, she opined that it is less likely than not that the Veteran's current complaints of neck pain and associated degenerative arthritis are due to his one-time injury in 1968. In explanation, she commented that he had returned to duty after one month of light duty and his separation examination did not mention a complaint of neck pain. The Veteran also has in response, however, competently and credibly testified during his November 2013 hearing to having experienced continuous symptoms (like persistent pain, etc.) since his injury in service, and since he has been diagnosed with DJD, this is considered a chronic condition, per se, according to § 3.309(a). He therefore, according to the holding in Walker, can show continuity of symptomatology under this VA regulation to establish the required link ("nexus") between his current disability and injury in service. As further support for his claim, and as a result of questioning during his hearing, in December 2013 the Veteran submitted a supporting private medical nexus opinion from Dr. K.M., his private orthopedic spine surgeon. Dr. K.M. stated that the Veteran had been evaluated at his facility, and from a review of his information, it was this physician's professional opinion that this type of trauma could occur from the type of helicopter crash the Veteran was involved in back in May 1968. This physician concluded that was likely the causative trauma resulting in the DJD of the Veteran's cervical spine that since had necessitated surgical intervention in an attempt to give him decreased back pain. Consequently, there is disagreement amongst those who have commented concerning whether the Veteran's current cervical spine disability (DJD) is attributable to the May 1968 helicopter crash during his military service. Dr. K.M.'s statement supporting the claim, in terms of this posited correlation, is somewhat couched in equivocal terms - as evidenced by his use of the word "could" when discussing this critical element of causation. In past decisions the Court held that saying a condition "could" or "may" be related to the Veteran's military service is tantamount to saying it just as well "could not" or "may not" be related to his service, so, because of this equivocality, an insufficient basis to grant service connection. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical opinion framed in terms of "may or may not" is speculative and insufficient to support an award of service connection); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the Veteran "may" have been having some symptoms of his multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical statement using the term "could", or in the moving party's case, "may" or "possibly", without supporting clinical data or other rationale, is too speculative to provide the degree of certainty required for medical nexus evidence). That said, the Court also has made clear that an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology; instead, this posited correlation between a Veteran's claimed disability and service need only be an "as likely as not" proposition. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Moreover, an etiological opinion has to be viewed in its entire context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). In Prejean v. West, 13 Vet. App. 444, 448-9 (2000), the Court held that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. But mere review of the claims file is not dispositive or determinative of an opinion's probative value, owing to the fact that a reliable history may be obtained by other means, such as from the commenting doctor having treated the Veteran personally over a period of time to gain an understanding of his medical history or the Veteran, himself, being a reliable historian in recounting this history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In this Neives-Rodriguez decision, the Court held that most of the probative value of an opinion comes from the discussion of its underlying reasoning, so a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." Neives-Rodriguez, at 301. Thus, all things considered, especially when recognizing that Dr. K.M. goes on to provide further explanation for his ultimately favorable conclusion (and even in less equivocal terms), the Board finds that the evidence is at least in relative equipoise, meaning about evenly balanced for and against this claim, and in this circumstance the claim must be granted with resolution of this reasonable doubt in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), ("a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."). ORDER This claim of entitlement to service connection for a cervical spine disorder, namely, DJD (degenerative arthritis), is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs