Citation Nr: 1610426 Decision Date: 03/15/16 Archive Date: 03/22/16 DOCKET NO. 13-19 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a disability manifested by chronic neck pain. ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The Veteran had active military service from April 1976 to April 1996. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Louisville, Kentucky, that in relevant part, denied service connection for chronic neck pain. The RO again denied the claim in a November 2011 rating decision following the receipt of additional evidence. This case was most recently before the Board in April 2015 when it was remanded for further development, including to obtain any additional post-service clinical treatment records and to obtain a medical opinion to determine if the Veteran's claimed chronic neck pain is related to service. It has now returned to the Board for further appellate consideration. The Board finds that the RO substantially complied with the mandates of its remand, and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). During its review of the claims file, the Board identified a Privacy Act Request received in January 2016. The Veteran requested copies of his medical records, including service treatment records, health records (outpatient), and dental records. The Board's FOIA/Privacy Act Officer completed this request on March 13, 2016. The Board will now proceed to adjudicate this appeal. In its April 2015 decision and remand order, the Board noted that the Veteran raised the issue of entitlement to service connection for a genitourinary condition secondary to hypertension in a January 2012 statement and referred the issue to the Agency of Original Jurisdiction (AOJ) for appropriate action. Based on a review of the claims file, it does not appear any action has been taken upon this referral. Therefore, it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. The earliest post-service clinical evidence of neck pain is more than nine years after separation from service. 2. The most competent and credible, therefore most probative, evidence of record is against finding that the Veteran has a neck disability causally related to, or aggravated by, his active military service. 3. There is no competent credible evidence that there was a disability manifested by neck pain to a compensable degree within one year of discharge from service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a neck disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in July 2010. The claims file includes service treatment records (STRs), post-service clinical records, and the statements of the Veteran in support of his claims. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. The Board finds that an adequate opinion has been obtained. The claims file includes a VA examination report and opinion specific to the Veteran's neck claim in November 2015. The report is predicated on the Veteran's reported symptoms, clinical records, and clinical examination findings. The report contains findings necessary to determine whether service connection is warranted. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Adequate rationale has been provided. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See 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), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, but with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. As discussed above, an essential element of a service-connection claim is a current disability. Upon medical examination in November 2015, the Veteran was diagnosed with cervicalgia. Objectively, imaging studies of the cervical spine reflect the presence of arthritis. See November 2015 VA examination report. Thus, the Board finds that the first element, evidence of a current disability, has been met. A second essential element to a service-connection claim is an in-service incurrence or aggravation of a relevant disease or an injury. The Veteran avers that he is currently suffering from a neck disability that was caused by an injury in service. In a January 2012 statement, the Veteran explained that he was told in service that wearing a helmet in the field was putting excess strain on his neck, but that he would have to get used to it. In the same statement, the Veteran points to a March 1983 STR in which he reported suffering headaches and neck stiffness for a year. The March 1983 STR reflects that the Veteran passed out and hit his head on a table while getting a drink. The record reflects that the Veteran had no history of passing out but was sweaty and thirsty before the incident. The record also notes that the Veteran worked in an intense environment, a supply office. The clinician noted that the Veteran "looks to be in mild distress" and that the "back of [his] neck [is] slightly tight and warm." The STR reflects that the etiology of the event is unknown, and that a complete blood count and urinalysis were ordered. No treatment was ordered for the neck, and no diagnosis was made. Subsequently during this appeal, the Veteran explained that he injured his head and back in the 1990's when he stood up after coming out of the field and lost consciousness. See November 2015 VA examination report. A final essential element to a service-connection claim is a correlation ("nexus") between the current disability and the disease or injury in service. Based on the most probative evidence of record, the Board finds this element has not been met. The first post-service clinical evidence of treatment for neck pain is a September 2005 x-ray conducted due to a complaint of chronic neck pain. The report reflects disk narrowing with hypertrophic changes at the C5-6 and C6-7 levels with spondylosis posteriorly prominent at the C5-6 level. The report reflects an impression of arthritic changes with disc narrowing at the C5-6 and C6-7 levels. See September 2005 clinical record. The record reflects that the Veteran reported that a chiropractor told him he had a compressed vertebra three years prior to the visit, so in approximately 2002. Id. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service-connection claim. In the appropriate circumstance, VA may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A medical nexus opinion was obtained in November 2015. The examiner conducted an in-person examination and reviewed the pertinent documents in the claims folder, including the Veteran's STRs, military service personnel records, enlistment and separation examinations, VA treatment records, and the Board's May 2015 remand order. The examiner opined that the Veteran's cervicalgia was less likely than not incurred in or caused by the claimed in-service injury. See November 2015 VA examination. As rationale for her opinion, the examiner noted that the Veteran's first post-service diagnosis in September 2005 was made nine years after separation from service. Additionally, the examiner explained: "There was no cervical spine diagnosis noted on the veteran's entrance exam. However, cervical spondylosis is a general term referring to wear and tear associated with the spinal disc and is a sign of natural progression of age which is noted as the veteran's diagnosis nine years post military service... In reviewing the veteran's STRs, there is no evidence of any complaints, diagnostic tests, treatments, or any other exam findings indicative of the veteran receiving a cervical spine injury... [T]he separation exam that was completed January 17, 1996, that is quite detailed, mentioning the back, the high blood pressure, shortness of breath, and several other conditions are silent for the mention of neck or cervical spine conditions." In conducting its review, the Board has considered the Veteran's assertions regarding the etiology and initial manifestation of his neck disability, specifically that wearing a steel helmet in service put excess strain on his neck. The Veteran stated, "20 years of constantly wearing a combat helmet has clearly caused the deterioration in the vertebra located in my neck area." See January 2012 statement. The Veteran is competent to report symptoms such as pain or aches in his neck and back. But he has not been shown to have the experience, training, or education to render a competent medical opinion regarding the etiology of his neck disability, especially in light of the lapse of time since service, and the 2005 diagnosis of spondylosis. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (indicating the determination of whether lay versus medical evidence is needed to substantiate a claim is dependent on the condition being claimed and made on an individual, case-by-case, basis). The Board has also considered the Veteran's July 2013 statement in which he relays the alleged medical opinion of a chiropractor who treated the Veteran "not long after retiring from the military." The Veteran explained that the chiropractor said the deterioration of the Veteran's neck vertebrae "was caused [by] a combination of the trauma I had while I was in my 20's and years of wearing steal (sic) helmets." See July 2013 statement. However, the connection between what a physician has said and the layman's account of what he purportedly said, filtered through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Attempts by VA and the Veteran to obtain a copy of any chiropractic record which may provide a nexus opinion have been unsuccessful. As discussed above, the Board remanded this claim in April 2015 to obtain additional medical records, particularly to include records from any and all chiropractors who have treated the Veteran. The Veteran was asked to fill out medical release forms for any providers from whom he received care for his neck pain. The Veteran identified two providers, namely his primary care physician (PCP) and an Army medical clinic. Both of those records are on file. The Veteran also submitted a statement in October 2015 which stated, "After the Base closed, I had several medical providers, none of which are still at their previous locations. My current primary care MD has records of my neck problems." The evidence from the Army medical clinic reflects treatment in September 2005 for neck pain, including an MRI showing arthritic changes. No nexus opinion is provided. See September 2005 clinical record. The file contains correspondence dated May 2011 from the Veteran's PCP, Dr. K.H., which reflects treatment for hypertension, but not neck pain. Lastly, on remand in June 2015, VA received a private medical treatment record from Dr. E.H. The record reflects that an X-ray of the cervical spine was conducted and the impression was mild spondylosis from C5-C7. See May 2015 clinical record. No nexus opinion was provided. In sum, the claims file does not contain competent and credible evidence that the Veteran's neck disability is related to, or the result of, an in-service incident or injury. The Board finds that the competent and credible medical evidence and analyses from licensed medical professionals are more probative than lay statements with regard to the etiology of the Veteran's neck and back disabilities. Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The Board additionally has considered 38 C.F.R. §§ 3.307 and 3.309(a), specifically, whether the Veteran's diagnosed cervical arthritis qualifies as a "chronic disease" that can be presumed to have been incurred in service, but finds that it cannot. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While arthritis is listed as a chronic disease subject to presumptive service connection, the record does not indicate the disease became manifest to a compensable degree within one year of the date of separation from service as required by 38 C.F.R. § 3.307. Contrarily, the earliest clinical evidence of neck pain after service is from 2005, approximately nine years after service. In sum, the competent and credible evidence of record reflects that the Veteran's neck condition is not causally related to, and was not aggravated by, his service. Accordingly, service connection is not warranted. As the preponderance of the evidence is against the claim, for the reasons and bases discussed, the benefit-of-the-doubt rule is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER The claim of entitlement to service connection for a disability manifested by chronic neck pain is denied. ______________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs