Citation Nr: 1607051 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 08-37 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for status post cervical strain with arthritis, to include as secondary to the service-connected lumbar disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from October 1969 to January 1973. This appeal to the Board of Veterans' Appeals (Board) is from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2012, the case was remanded for additional development. The post-service treatment records that are stored electronically using Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing system have been considered in the decision below. Reference is made to a July 2014 decision that decreased the rating assigned to the Veteran's low back disability from 20 percent to zero. The Veteran submitted a notice of disagreement (NOD) the following month wherein he not only initiated an appeal of the reduction but also raised a claim for a higher rating. A December 2014 rating decision subsequently reinstated the 20 percent rating, which represented a full grant of the appealed reduction action. Then, by a rating action dated in March 2015, the rating assigned to the low back disability was increased to 40 percent. A November 2015 decision continued the 40 percent rating but awarded a total disability evaluation based upon individual unemployability. To date, the Veteran has not submitted an NOD with respect to either of 2015 decisions. FINDING OF FACT The Veteran's current cervical spine disorder is not shown to have manifested in service, arthritis is not shown to have manifested in the first year following separation from service, and the more probative evidence of record indicates the disorder is not related to any event during service or caused or aggravated by the service-connected lumbar disability. CONCLUSION OF LAW The criteria are not met for service connection for a cervical spine disorder. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. In April 2008 and September 2009, the RO advised the claimant of the information necessary to substantiate the claim, and of his and VA's respective obligations for obtaining specified different types of evidence. He also was notified of how VA determines disability ratings and effective dates if a claim is granted. Although notice regarding secondary service connection was not sent until after the July 2008 rating decision, the claim has since been readjudicated in supplemental statements of the case (SSOCs) in October 2009, November 2009, January 2013, and December 2014, which "cured" any problem with the timing of the notice. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). All identified and authorized records relevant to the matter have been obtained to include service treatment records and post-service treatment records. The Veteran was afforded VA examinations and opinions were obtained, all of which are adequate to decide the claim since they were based on a review of the record and contained a rationale for all conclusions. See Barr v. Nicholson, 21 Vet. App. 303 (2007). II. Analysis The Veteran claims service connection for a cervical spine disorder directly related to service or that is proximately due to his service-connected lumbar disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In the absence of rebuttable evidence, service connection for certain chronic diseases, such as arthritis, will be presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected disability, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). Lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). The record shows that during the course of the appeal, the Veteran had been diagnosed with status post cervical strain with arthritis. See May 2008 VA examination. Hence, a threshold requirement for establishing service connection is satisfied. As for the second element, an in-service event, he reported that during underwater demolition training in service he and 5 other men had to lift equipment weighing approximately 1,000 pounds and balance it on their heads for approximately 1 mile daily, and that he noticed discomfort in his neck the next morning. In January 1973, he received treatment for mid thoracic back spasm. See May 2008 VA examination. As a layperson, the Veteran is competent to describe symptoms during service. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses) In weighing credibility, VA may consider many factors such as interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). Here, when his statements are viewed in the context of the other evidence of record they are not credible. See Baldwin v. West, 13 Vet. App. 1 (1999); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). His report of heavy lifting is not necessarily in question. It is his history that that lifting resulted in an injury to his neck that lacks credibility. Notably, while a January 1973 service treatment record does show he had complaints of right mid thoracic pain and morning stiffness, it also notes he had no other symptoms. He did not have any cervical spine or neck complaints at that time. Furthermore, his January 1973 service separation examination, which took place a few days later, shows there were no cervical spine or neck complaints, findings, or diagnoses. Contemporaneous medical records are more credible than statements made many years after service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). To the extent the Veteran indicated he had neck pain in service the result of carrying heavy objects, his service treatment records are silent for any neck or cervical spine complaints, findings, or diagnosis. Given that he sought treatment for other ailments, such as low back pain, it seems unlikely, and therefore is not credible, that he would not do the same for the neck if he was experiencing any problems or discomfort. All of this as well as the other evidence of record, medical literature, physical examination, and the Veteran's history were considered when the May 2008 VA examiner opined that it is less likely than not that the current neck disorder is related to the incident of thoracic pain/muscle spasm noted in military records. The rationale was that there was no direct trauma to the neck in service and the muscle strain that was below the right shoulder blade would not produce neck arthritis. Thus, the third element, nexus evidence, which links the current disability to service, is against the claim. A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). A medical opinion is afforded substantial weight when it is factually accurate, fully articulated, and has sound reasoning for the conclusion; it is not just the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).\ The clinician is competent to offer the opinion. The rationale reasonably supports the opinion and it is consistent with the record. The clinician considered the medical evidence of record, the Veteran's reported history, and medical literature. Because, as indicated, the examiner's opinion possesses many of the factors considered in determining its probative value, it is persuasive and is afforded substantial weight. Significantly, there is no nexus evidence of record in favor of the claim that is of equal or greater probative value. Only the Veteran's own belief that his neck disorder is related to service has been offered in support of his claim, which the Board finds is not competent for this purpose. Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stated as follows: "[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 professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. Whether the Veteran's cervical spine arthritis is related to activities during service or other factors is not something that can be determined by mere observation or a simple question. As such his statements as to how he developed arthritis is not a competent opinion and the only probative evidence was provided by the VA examiner. There are two additional means to establish service connection for the cervical spine disorder on a direct basis, which are on a presumptive basis for arthritis, and based on continuity of symptoms of a chronic disease. There is no evidence of record that shows the Veteran had a diagnosis of cervical spine arthritis within the first year following his separation from service. Therefore, service connection for arthritis on a presumptive basis is not warranted. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. As for the suggestion that he has had neck disorder since service, there is the absence of chronicity during service. There are no documented complaints or findings of neck problems or credible lay evidence of any neck problems in service. A July 2008 treatment record shows the Veteran presented with complaints of chronic back, neck, and hip pain, and that he reported having pain for more than 30 years, but he did not indicate whether his neck pain in particular has been present for more than 30 years and it is unclear if these pains even date back to service. In light of other evidence it is unlikely his neck pain dates back to service since he reported on the May 2008 VA examination that he had no further problems until 1988, which was many years after service. Thus, there is not only a lack of medical evidence supporting continuity of symptomatology but insufficient lay evidence to support the claim on this basis. See 38 C.F.R. § 3.303(b). Turning to the other theory, which is that the service-connected low back disability caused or aggravated his cervical spine disorder, the only opinion that addressed this was provided by a VA examiner in November 2012. The November 2012 VA examiner opined that the Veteran's cervical spine disorder is not caused by or a result of or aggravated by his service-connected lumbar spine disability. Instead, it is more likely that the current cervical spine disorder is solely due to the natural progression of the disorder or other factors unrelated to the spine disability. The opinion was based, in part, on medical literature indicating there is no known biomechanical basis for the cervical spine disorder being in connection with the lumbar spine. He also noted the Veteran's well-documented work history that lends itself to multiple occupational hazards and requires multiple repetitive use maneuvers in order to carry out those duties on a chronic basis. The Veteran has also reported work related activities that involved pushing around heavy steel on a hoist that weighed from 5 to 1,500 pounds all day, 5 days a week for 2 years. Following this job the Veteran worked as a housekeeper at a VA Medical Center that involved twisting and turning movements that aggravated his symptoms. The examiner provided an adequate basis for the opinion that is consistent with the Veteran's history and the evidence, so it is afforded a high probative value. There is no medical evidence of record to contradict this or other nexus evidence supporting the claim that is equally probative. The Veteran's statements regarding secondary service connection lack probative value for the same reason as his statements regarding direct service connection. In other words, the matter of whether the cervical spine disorder was caused or aggravated by the lumbar spine disability is not subject to lay observation, but requires medical expertise. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that a lay claimant is not competent to provide evidence as to complex medical questions). The Board finds that the preponderance of the evidence is against the claim for service connection for a cervical spine disorder. Since the evidence is not in equipoise, the Veteran is not afforded the benefit of the doubt. See 38 C.F.R. §§ 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a cervical spine disorder is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs