Citation Nr: 1509794 Decision Date: 03/09/15 Archive Date: 03/17/15 DOCKET NO. 09-47 389 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE Entitlement to service connection for residuals of a neck fracture, to include arthritis of the cervical spine and shoulders. REPRESENTATION Appellant (the Veteran) is represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active duty service from February 1947 to February 1950, with subsequent service in the American Merchant Marine. This appeal comes before the Board of Veterans' Appeals (Board) from September 2008 and December 2009 rating decisions of the RO in Denver, Colorado. In August 2013, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. On the record of the hearing, the Veteran withdrew his appeal regarding the issues of entitlement to service connection for a dental condition, hypertension, a heart condition, and alcohol abuse. The Board notes that the RO developed two separate issues-entitlement to service connection for arthritis, and entitlement to service connection for residuals of a neck fracture. However, it is apparent from the Veteran's testimony and written argument that the claimed arthritis is a residual of the claimed neck fracture. Therefore, the Board has characterized the appeal as involving a single issue encompassing all residuals of the claimed neck fracture. In October 2013, the Board granted service connection for asbestosis and remanded the appealed issues of entitlement to service connection for bilateral hearing loss, residuals of neck fracture, including arthritis, for additional evidentiary development. Subsequent to the October 2013 remand, the RO granted service connection for bilateral hearing loss, but continued the denial of neck fracture residuals. The Board has reviewed the physical claims file and the electronic file on the Virtual VA and VBMS systems to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2014). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT There was no injury or disease involving the neck during any qualifying period of service. CONCLUSION OF LAW Neck fracture residuals, to include arthritis, were not incurred in service; arthritis is not presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he sustained a fracture of his neck during a motor vehicle accident in the service. He contends that arthritis of the cervical spine and shoulders is among the residuals of this injury. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Proving service connection requires (1) medical evidence of current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran served 90 days or more during a period of war or after December 31, 1946, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating "(1) that a condition was noted during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board finds that the Veteran's reports and assertions have been materially inconsistent in identifying the details pertinent to his claim. These include the date of the neck fracture, the dates of his service, and the type of service he was performing at the time of his claimed neck fracture. In most reports (excluding his hearing testimony which will be discussed below), the Veteran has maintained that the neck injury occurred during a second period of service, after his confirmed period of service in the U.S. Marine Corps from February 1947 to February 1950. In his October 2007 claim, the Veteran listed the dates of his second period of service as from October 26, 1955 to October 26, 1957. However, he has mostly reported the dates of his second period of service as from 1955 to 1956 (see April 2008 correspondence, March 11, 2008 NA Form 13075 (JF), September 15, 2008 VA Form 21-4138, May 18, 2009 VA Form 21-4138, September 24, 2009 VA Form 21-4138). Notably, these accounts are inconsistent as to the exact dates of service. The NA Form 13075 (JF) lists service from November 19, 1955 to August 1956 (no terminal date specified). Correspondence entitled "Exposure Sheet" lists service from January 1, 1955 to December 1, 1956. The Veteran has also reported various dates for the claimed neck fracture. In April 2008 correspondence, hand-written on a March 2008 letter from the RO, the Veteran wrote that he broke his neck in 1957. In November 2009 correspondence, the Veteran also asserted that the neck fracture occurred in 1957. In the October 2007 claim, the Veteran was more precise, identifying the date of his neck fracture as July 21, 1957. However, on the November 2009 VA Form 9, he identified the date of the fracture as August 2, 1957. Also significant are the variations in the type of service claimed to be performed during the second service period. On the October 2007 claim, the Veteran identified a second period of service in the U.S. Navy as an "Ordinary Seaman." In November 2009 correspondence, the Veteran asserted that his second period of service was with the Coast Guard. However, in most of his correspondence, the Veteran has asserted that, during his second period of service, he served in the Merchant Marine. At the Board hearing, the Veteran initially testified that he injured his neck during his Marine Corps service while he was serving as an embassy guard in China. He testified that he sustained a broken neck, was hospitalized in a military hospital, and was put in a full body cast for six months. He testified that x-rays were taken, which showed that the 1st and 2nd cervical vertebrae were fractured and dislocated, and the collar bone was broken. However, when asked the location of the military hospital, he then stated that he was aboard the U.S.S. Bayfield or possibly another ship at the time. The details of his post-injury hospitalization are also inconsistent. In a March 2008 VA Form 21-4142, the Veteran reported that, after sustaining the broken neck, he was first hospitalized at San Luis Valley Regional Medical Center in Colorado. He reported that the hospitalization was from August 2, 1957 to August 9, 1957. He reported that he was transferred to Denver General Hospital on August 9, 1957, and then transferred to San Francisco General Hospital in California. However, in an August 24, 2007 VA history and physical, the Veteran reported that he had never been hospitalized except for an ulcer operation. The service treatment records from the Veteran's active duty have been obtained and they reflect that, when examined for service separation in February 1950, there were no significant abnormalities of the neck or spine. If we accept his testimony of having sustained a neck fracture, of the severity he described, during his first period of service, it would seem unlikely to have normal clinical findings on examination so soon after the injury and an absence of any reference to a neck injury. Based on the significant variations in the Veteran's account of his neck injury, and the details of his service in general, the Board attaches greater probative weight to the service treatment records than to the Veteran's distant recollection as expressed at the hearing. The Board finds that there was no injury or disease involving the neck during the Veteran's period of active duty service with the U.S. Marines. The Board also finds that there was no manifestation of arthritis to a degree of 10 percent or more within one year of the Veteran's active duty service in the Marines. The first reference to arthritis comes in the context of the current claim, many decades after service separation from active duty service. There is no diagnosis of arthritis of record. The Veteran was evaluated and underwent physical therapy for left shoulder pain in January 2009; however, there is no diagnosis of arthritis. While the Veteran has reported that arthritis began in service (see April 2008 correspondence), he reported that this was in 1957. The Veteran's only verified period of service ended in 1950. Even if true that arthritis began in 1957, this is many years after service separation. The RO received verification from the National Personnel Records Center that the Veteran had no service with the Coast Guard or U.S. Navy at any time. Documentation received from the Coast Guard includes a Seaman's Certificate Application signed by the Veteran on January 13, 1955, identifying the Veteran as an ordinary seaman, wiper, messman, and identifying his service as a U.S. Merchant Mariner. While it is apparent that the Coast Guard played a role in certification of U.S. Merchant seamen, and that the Coast Guard was in possession of documentation pertaining to the Veteran's service in the Merchant Marine, there is no record of any qualifying service with the Coast Guard, i.e., active military, naval, or air service. Indeed, the Veteran verified in telephone contact with an employee at the Appeals Management Center in December 2014 that he never served in the Coast Guard. The only qualifying service that has been confirmed in this case is with the U.S. Marine Corps. However, the National Personnel Records Center has verified that the Veteran had no service in the U.S. Marine Corps after February 1950. Therefore, this service would not qualify the Veteran for service connection for residuals of a neck injury incurred in 1957. While the RO and Appeals Management Center were also unable to confirm service in the Merchant Marine, the Veteran submitted a log book from the Military Sea Transportation Service, which contains stamp entries from November 1, 1955 to August 29, 1956, reflecting that the Veteran served during this period aboard the USNS Pvt. Joseph F. Merrell, which is identified as a cargo ship by the Dictionary of American Naval Fighting Ships. Therefore, the Board acknowledges that the Veteran served in the Merchant Marine at least until August 29, 1956. However, it is again noted that the dates of service do not include any period in 1957, when most of the Veteran's accounts have him fracturing his neck. Equally as significant, service in the Merchant Marine during this period does not qualify the Veteran for VA compensation, the benefit sought here. Service in the American Merchant Marine in oceangoing service is considered active duty for the purposes of all laws administered by the Secretary of Veterans Affairs, but only if such service occurred during World War II-the period from December 7, 1941 to August 15, 1945. See Public Law No. 95-202, § 40, 91 Stat. 1433, 1449-50 (Nov. 23, 1977); 53 Fed, Reg. 2775 (1998); see also 38 C.F.R. § 3.7(x)(15); Pacheco v. West, 12 Vet. App. 36, 37 (1998). Here, there is no dispute that the Veteran's Oceangoing Merchant Marine service began after August 15, 1945. Therefore, his period of service is not considered active duty under the provisions of Public Law No. 95-202, § 40, 91 Stat. 1433, 1449-50. He does not contend, and official records do not show, that he had credited oceangoing service from December 7, 1941 to August 15, 1945. The only active duty service performed by the Veteran was from February 1947 to February 1950 in the U.S. Marines. While the Veteran, as a Merchant Mariner after August 15, 1945 is eligible for certain VA benefits, these do not include compensation or pension benefits such as service connection. See Public Law No. 105-368; see also M21-1MR, Part III, Subpart iii, Chapter 2, Section F. Topic 36. Therefore, even if it were shown that he was serving in the Merchant Marine in 1957, when he asserts he injured his neck, as a matter of law, this would not qualify him for service-connected compensation. As discussed above, the Board finds that there was no injury or disease of the neck during the Veteran's active duty service. Therefore, the Board concludes that service connection for residuals of a neck injury is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Duties to Notify and Assist The Veteran does not assert that there has been any deficiency in the notice provided to him in November 2007 and March 2008 under the Veterans Claims Assistance Act of 2000 (VCAA) and he has not identified any prejudice resulting from any deficiency. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (no presumption of prejudice on a notice deficiency; the burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency's determination). The RO has obtained pertinent medical records including the service treatment records and service personnel records from the Veteran's period of active duty. Although the Veteran's service records were initially identified as fire-related, this was determined to be in error, and his service treatment records and service personnel records were obtained. The RO has also obtained VA outpatient treatment reports and private treatment reports identified by the Veteran. The RO made extensive efforts to obtain records of Coast Guard and Navy service, using both variations of the Veteran's last name, using his Security Number, and using various reported service numbers. The Veteran later confirmed that this period of service was actually with the American Merchant Marine and was not active service with the Coast Guard or Navy. While the Veteran identified private treatment providers from the period of his neck injury, the RO made adequate attempts to obtain these records, which are unavailable, and no further efforts are indicated. The RO also undertook extensive efforts to verify the Veteran's service. The Board finds that service as verified above is accurate. The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to this claim. However, the Board finds that a VA examination is not necessary in order to decide this claim. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). Here, the Board has found that there was no injury or disease involving the neck during any qualifying period of service. While an injury may have occurred during a period of service in the Merchant Marine, in light of the claimed date of injury, the Board has determined that the Veteran was not performing qualifying service, and therefore, as a matter of law, the claimed benefit cannot be granted on that basis. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's remand instructions by undertaking all necessary development to verify the claimed service in the Coast Guard and by documenting the results of its search the claims file. As discussed above, the Veteran no longer contends that he served in the Coast Guard. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. ORDER Service connection for neck fracture residuals, to include arthritis, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs