Citation Nr: 1611357 Decision Date: 03/21/16 Archive Date: 03/29/16 DOCKET NO. 06-22 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for cervical spine fusion, including as due to service-connected fibromyalgia. ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from February 1991 to March 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the Veteran's claim of service connection for cervical spine fusion, including as due to service-connected fibromyalgia. The Veteran disagreed with this decision in June 2005. She perfected a timely appeal in July 2006. In February 2009, March 2012, and in January 2015, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ attempt to obtain the Veteran's updated treatment records and schedule her for appropriate examinations to determine the nature and etiology of her cervical spine fusion. The requested records subsequently were associated with the Veteran's claims file and the requested examinations occurred in March 2013 and in May 2015. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In March 2013, the Veteran's attorney withdrew from representing her. Thus, the Veteran is considered unrepresented before VA. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDING OF FACT The record evidence indicates that the Veteran's cervical spine fusion is a congenital defect; no superimposed cervical spine disability related to service or relationship to fibromyalgia is demonstrated. CONCLUSION OF LAW Service connection for cervical spine fusion is precluded as a matter of law. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 4.9 (2015); VAOPGCPREC 82-90 (July 18, 1990). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter issued in October 2004, VA notified the Veteran of the information and evidence needed to substantiate and complete her claim, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the Veteran to submit medical evidence relating the claimed disability to active service and noted other types of evidence the Veteran could submit in support of her claim. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of her claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in March and in June 2006, as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As will be explained below in greater detail, service connection for cervical spine fusion is not warranted. Because the Veteran was fully informed of the evidence needed to substantiate this claim, any failure of the AOJ to notify her under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini, 18 Vet. App. at 112. Here, the October 2004 notice was issued prior to the currently appealed rating decision; thus, this notice was timely. Because the Veteran's claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording her the opportunity to give testimony before the AOJ and the Board, although she declined to do so. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's electronic paperless claims files in Virtual VA and in Veterans Benefits Management System (VBMS) have been reviewed. The Veteran also does not contend, and the evidence does not show, that she is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain her SSA records is required. Instead, information provided to VA by SSA indicates that the Veteran is in receipt of Supplemental Security Income (SSI) benefits from SSA. Nevertheless, the Veteran's complete Social Security Administration (SSA) records also have been obtained and associated with the claims file. The Veteran has been provided with VA examinations which address the contended causal relationship between the claimed disability and active service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claim adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Service Connection for Cervical Spine Fusion The Veteran contends that her cervical spine fusion is related to active service. She alternatively contends that her service-connected fibromyalgia caused or contributed to her cervical spine fusion. Laws and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is prohibited for congenital defects. See 38 C.F.R. § 4.9; see also VAOPGCPREC 82-90 (July 18, 1990) (discussing prohibition against granting service connection for congenital defects). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection also may be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. §§ 3.310(a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. § 3.310(a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. § 3.310(b)). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. In Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to 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); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)). Because cervical spine fusion is not recognized explicitly as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is inapplicable to this claim. It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background and Analysis The Board finds that service connection for cervical spine fusion must be denied as a matter of law. The Veteran contends that she incurred cervical spine fusion during active service or, alternatively, her service-connected fibromyalgia caused or contributed to her cervical spine fusion. Because the medical evidence indicates that the Veteran's cervical spine fusion is a congenital defect, and because service connection for congenital defects is prohibited, this claim must be denied as a matter of law. The record evidence indicates that the Veteran's cervical spine fusion is a congenital defect. For example, the Veteran's available service treatment records show that she denied all relevant pre-service medical history at her enlistment physical examination in February 1990, prior to her entry on active service in February 1991. A copy of the Veteran's separation physical examination was not available for review. Although it appears that there were no complaints of or treatment for cervical spine fusion during active service, the Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence indicates that her cervical spine fusion is a congenital defect for which service connection is prohibited as a matter of law. For example, on private outpatient treatment in May 2000, the Veteran's complaints included some numbness and tingling in her upper extremities for the previous 3-4 months "which is also causing a great deal of pain." Physical examination of the upper extremities showed no point tenderness over the cervical spine upper musculature between the neck and shoulders and shoulder joint area, no lateral or medial epicondyle pain, a full range of motion, a strong grip, and intact reflexes. X-rays of the cervical spine showed congenital fusion C4-5 level. The assessment included rule-out cervical lesion. A private magnetic resonance imaging (MRI) scan of the Veteran's cervical spine taken in June 2000 showed a partial congenital anterior fusion at C4-5. In a June 2000 letter, A.S.F., M.D., stated that the Veteran complained of "progressive problems with numbness and tingling in the upper extremities" which was sporadic. A history of neck pain was noted. Physical examination showed a normal gait, normal heel-toe walking, normal muscle tone and sensation, and a non-tender neck. X-rays showed a blocked vertebra at C4-5 and "some reversal of the cervical lordosis." Dr. A.S.F stated that there was no clear diagnosis. Private x-rays of the Veteran's cervical spine taken in April 2005 showed a congenital fusion anomaly suspected at C4-5 and no acute osseous abnormalities. VA MRI of the Veteran's cervical spine taken in November 2008 showed a congenital fusion "across the C4-5 vertebrae typical of Klippel-Feil syndrome" (or a condition characterized by shortness of the neck resulting from reduction in the number of cervical vertebrae). On VA outpatient treatment in January 2009, the Veteran's complaints included worsening neck pain. The Veteran denied experiencing any bowel or bladder problems or numbness or tingling in any extremities. A history of "fused cervical vertebrae typical of Klippel-Feil syndrome" was noted. The assessment included probable Klippel-Feil syndrome. The Board acknowledges that, in September 2010, a VA clinician opined that it was at least as likely as not that the Veteran's cervical spine fusion was related to active service. This clinician provided no rationale for his opinion. Nor did this clinician address the congenital nature of the Veteran's cervical spine fusion in his opinion. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Having reviewed the September 2010 VA clinician's opinion, the Board finds that it is not probative on the issue of whether the Veteran's cervical spine fusion is related to active service. On VA neck (cervical spine) conditions Disability Benefits Questionnaire (DBQ) in March 2013, the Veteran complained of increased neck pain. Physical examination showed localized tenderness to palpation in the joints/soft tissues of the neck, guarding or muscle spasm not resulting in an abnormal spinal contour, 5/5 muscle strength, no muscle atrophy, normal reflexes and sensation, no radiculopathy, no other neurologic abnormalities, and no intervertebral disc syndrome. The diagnoses included congenital fusion of C4-5 vertebral bodies with bulging discs. In a May 2014 opinion, a VA clinician opined that it was less likely than not that the Veteran's cervical spine fusion was related to active service. The rationale for this opinion was that the Veteran's cervical spine fusion was "first noted on imaging in 2001. She denied prior surgery and this was thought to have occurred naturally at an unknown time. She left service in 1995." The rationale also was that there was no indication from a review of the Veteran's service treatment records that her cervical spine fusion began in service. The Board again notes that it is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson, 2 Vet. App. at 614. The Board also notes again that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. Thus, the Board finds that the May 2014 VA clinician's opinion is not probative on the issue of whether the Veteran's cervical spine fusion is related to active service. On VA neck (cervical spine) conditions DBQ in May 2015, the Veteran complained of progressively worsening neck pain which she rated as 7-8/10 on a pain scale (with 10/10 being the worst imaginable pain) and which radiated to her head "at times causing headaches." The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran also reported that her neck was stiff and it hurt to move her neck. She experienced incapacitating headaches "about once a week, causing her to have to go to bed for 4 hours." She was unable to turn her head fully on range of motion testing. Physical examination showed moderate tenderness to palpation directly over the cervical spine "and over the belly of the trapezius muscles bilaterally," functional loss with repetitive use over time, no localized, tenderness, guarding, or muscle spasm, 5/5 muscle strength, normal deep tendon reflexes, normal sensation, no radicular signs or symptoms, and no spine ankylosis, other neurologic abnormalities, or intervertebral disc syndrome. An MRI scan showed multiple bulging discs and congenital fusion of C4-5. The VA examiner opined that it was "apparent" that the Veteran's cervical spine fusion at C4-5 was the cause of her cervical spine problems. The diagnoses included congenital fusion of C4-5. In a November 2015 addendum to the May 2015 VA neck (cervical spine) conditions DBQ, a different VA examiner stated that the Veteran's "congenital fusion noted at C4-5 would be a defect and not a disease." The Veteran contends that her cervical spine fusion is related to active service. Contrary to the Veteran's assertions, the record evidence clearly shows that her cervical spine fusion is a congenital defect (as the VA examiner stated in November 2015). This November 2015 finding is in accord with other medical evidence showing that the Veteran's cervical spine fusion is a congenital defect. And it is undisputed that service connection is prohibited for congenital defects. See 38 C.F.R. § 4.9; see also VAOPGCPREC 82-90 (July 18, 1990). The Veteran also has not identified or submitted any evidence, to include a medical nexus, demonstrating that her cervical spine fusion is not a congenital defect or otherwise is related to active service as no superimposed cervical spine disability related to service or relationship to fibromyalgia is demonstrated. In summary, the Board finds that service connection for cervical spine fusion is denied. See also Sabonis v. Brown, 6 Vet. App. 426 (1994). In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. 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. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown,6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr, 21 Vet. App. at 309. The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337; Barr, 21 Vet. App. at 303. In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability compensation claim, in recent statements, the Veteran has asserted that her symptoms of cervical spine fusion have been continuous since service. She asserts that she continued to experience symptoms relating to cervical spine fusion (neck pain) after she was discharged from service. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of cervical spine fusion after service separation. Further, the Board concludes that her assertion of continued symptomatology since active service, while competent, is not credible. The Board finds that the Veteran's more recently-reported history of continued symptoms of cervical spine fusion since active service is inconsistent with the other lay and medical evidence of record. For example, the post-service medical evidence does not reflect complaints or treatment related to cervical spine fusion for several years following active service. The Board emphasizes the multi-year gap between discharge from active service (1994) and initial reported symptoms related to cervical spine fusion in 2000 (a 6-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service, including migraine headaches, low back pain, and fibromyalgia. Significantly, during that treatment, when she specifically complained of other problems, she never reported complaints related to cervical spine fusion. Rucker, 10 Vet. App. at 67 (holding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). When the Veteran sought to establish medical care with a private clinician after service in May 2000, she did not report the onset of cervical spine fusion during or soon after service or even indicate that the symptoms were of longstanding duration. She reported instead that she had some numbness and tingling in her upper extremities for the previous 3-4 months (or since approximately February 2000, almost 6 years after her service separation in March 1994). Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Id. The Veteran filed multiple VA disability compensation claims for service connection for shin splints, an atypical pap smear, chronic bronchitis, chronic rhinitis/sinusitis, human papillomavirus (HPV) infection, and bilateral hearing loss at her service separation in March 1994 but did not claim service connection for cervical spine fusion or make any mention of any relevant symptomatology. She did not claim that symptoms of her cervical spine fusion began in (or soon after) service until she filed her current VA disability compensation claim in September 2004, more than 10 years after her service separation. Such statements made for VA disability compensation purposes are of lesser probative value than her previous statements made for treatment purposes. See Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds her current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than the absence of complaints or treatment for years after service, her previous statements made for treatment purposes, and the medical evidence indicating that her cervical spine fusion is a congenital defect. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. ORDER Entitlement to service connection for cervical spine fusion, including as due to service-connected fibromyalgia, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs