Citation Nr: 1628112 Decision Date: 07/14/16 Archive Date: 07/28/16 DOCKET NO. 11-18 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a cervical spine condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1978 to February 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Saint Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement in May 2010. The RO issued a statement of the case (SOC) in June 2011. The Veteran subsequently perfected his appeal with a VA Form 9 in June 2011. The Veteran requested a VA Regional Office hearing on his Substantive Appeal, VA Form 9, and a hearing was scheduled in April 2015. Despite receiving adequate notice of that hearing by way of a March 2014 letter, he failed to attend his scheduled hearing. As such, the Board deems the hearing request withdrawn. See 38 C.F.R. § 20.704(d)(2015). In August 2014, the Board remanded the Veteran's claim for service connection for further development. A SSOC was issued in September 2014, and the case has now been returned to the Board for further appellate action. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDING OF FACT There is no credible persuasive evidence establishing that the Veteran currently has a cervical spine disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implantation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R § 3.159(b) (2015). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Prinicipi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. At 121. The Board finds that VA has met all statutory and regulatory notice and duty to assist provisions, as the Veteran was advised of VA's duties to notify and assist in the development of his claims for service connection prior to its initial adjudication. 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). In particular the January 2010, letter explained the evidence necessary to substantiate the Veteran's claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The January 2010 letter also informed him of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs), service personnel records, and pertinent post service treatment records have been secured and associated with the claims file. His statements in support of the claim are also of record. After a careful review of such statements, the Board has concluded that no available, pertinent evidence has been identified that remains outstanding. The Board notes that the case was remanded in August 2014. The Board's August 2014 remand directed that the AOJ request copies of any outstanding hospital service records at James A. Haley VA hospital. If warranted after any newly obtained evidence, the Veteran was to be scheduled for an examination. In September 2014 a request was made to the James A. Haley Veterans hospital for records pertaining to the Veteran. A representative from the hospital reported that there was no indication that the Veteran had sought treatment at the hospital, and therefore there were no records pertaining to the Veteran on file. As no new evidence was obtained, a VA examination was not ordered. The Board notes that the Veteran has not been afforded a VA examination concerning his claim for service connection for a cervical spine condition. VA will provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that no such examination is required in this case. As will be explained below, there is no medical or credible lay evidence that shows the Veteran has a current cervical spine condition. Consequently, VA is under no duty to afford the Veteran a VA examination. 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2015); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). A SSOC was issued in September 2014. Accordingly, the requirements of the August 2014, remand were ultimately accomplished and the prior remand instructions were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not identified any pertinent evidence that remains outstanding. Accordingly, VA's duty to assist is met and the Board will address the merits of the claims. II. Service Connection Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Certain chronic diseases, such as arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service, or in service and any time thereafter. 38 C.F.R. § 3.303(d); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (to the effect that the theory of continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also 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"). III. Factual background and Analysis The Veteran filed a claim for service connection for cervical spine stenosis, on a direct basis, in December 2009. The Veteran's service treatment records are negative for any complaints or treatment of a cervical spine disability. Miami VAMC treatment records do not reveal a history of treatment for a cervical spine disability. In 1989 the Veteran had a cervical spine x-ray done, and no abnormal findings were identified. In a July 2010 record, the Veteran reported aching pain across the back of his neck and shoulders, with no other mention of a cervical spine disability. Treatment records from the Jackson Health System, North Shore Medical Center, Jackson Memorial Hospital, and Jackson Memorial Medical Center, were reviewed and reveal no complaints of or treatment for a cervical spine disability. To the extent the Veteran has filed a claim for cervical spine stenosis, which has been recharacterized to encompass any cervical spine disability, under the applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1 (2014); see Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Thus, a symptom without a diagnosed or identifiable underlying malady or disorder, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). The requirement that a current disorder be present is satisfied when a claimant has a disorder at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disorder resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, a clinical diagnosis related to a cervical spine disability, has not been rendered. As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet App 319 (2007). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013) (held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran has asserted that he suffers from a cervical spine disability as a result of his active duty service. Although a lay person, such as the Veteran, is competent to describe observable symptoms, the diagnosis or etiology pertaining to a cervical spine disability, involves a complex medical question, one typically determined by persons with medical training, and does not lend itself to lay opinion evidence. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The claimed disability is not apparent from the medical evidence of record, and the existence of any such malady turns on what is not observable, namely whether there is a pathological process within the body. Such a disorder clearly is not one susceptible to lay diagnosis. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide a competent diagnosis or an etiological opinion in medical matters in this case. There is no evidence of record that the Veteran suffers from a cervical spine disability. Consequently, there is no medical evidence of record showing that the Veteran currently has a cervical spine disability, to include cervical spine stenosis, that is related to military service, and the Board may not accept unsupported lay speculation with regard to medical issues. As such, the Board finds that a preponderance of the evidence is against the claim for service connection for a cervical spine disability, to include, cervical spine stenosis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a cervical spine condition is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs