Citation Nr: 1642526 Decision Date: 11/03/16 Archive Date: 11/18/16 DOCKET NO. 12-22 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a cervical spine disability, to include as manifested by right arm numbness and weakness. ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from February 1953 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case is now under the jurisdiction of the RO in Chicago, Illinois. This case was before the Board in November 2014 and addressed the issues of entitlement to service connection for a cervical spine disability, to include as manifested by right arm numbness and weakness, and entitlement to service connection for prostate cancer, to include as due to exposure to Agent Orange. The November 2014 Board remand directed that a statement of the case be issued for entitlement to service connection for prostate cancer, to include as due to exposure to Agent Orange pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The record reflects a statement of the case specific to entitlement to service connection for prostate cancer, to include as due to exposure to Agent Orange was issued in September 2015; however, the Veteran did not perfect an appeal thereafter. Therefore, the issue before the Board is limited to entitlement to service connection for a cervical spine disability, to include as manifested by right arm numbness and weakness, which was remanded for further evidentiary development by the Board in November 2014 and now returns for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran's cervical spine disabilities, to include as manifested by right arm numbness and weakness, had their onset during his active service or for several years thereafter, or that they are otherwise etiologically related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability, to include as manifested by right arm numbness and weakness, are not met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), 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, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015); 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A VA letter issued in April 2009 satisfied the duty to notify provisions with respect to service connection and of the factors pertinent to the establishment of an effective date and disability rating in the event of a grant of service connection for a cervical spine disability. VA satisfied the duty to assist the Veteran under the VCAA by gathering relevant records. VA has a duty to assist in obtaining the Veteran's service treatment records, VA medical records and other relevant records. 38 U.S.C.A. § 5103A (c); 38 C.F.R. § 3.159 (c). The Veteran's VA treatment records have been obtained and are associated with the claims file. The Veteran's service treatment records, other than his separation examination, were not obtained, and are presumed destroyed. The law provides that when, through no fault of the Veteran, records under the control of the government are unavailable, the duty to assist is heightened. O'Hare v. Derwinski, 1 Vet.App. 365 (1991). VA must advise the Veteran of his right to support his claim by submitting alternate sources of evidence, including service medical or personnel statements, or lay evidence, such as "buddy" affidavits or statements. Id. The Veteran was notified that a fire may have destroyed his service treatment records in September 2009, and in response, the Veteran submitted a NA Form 13055 in support of his claim. In November 2009, VA issued a formal finding that the Veteran's service treatment records were unavailable and notified the Veteran of such. Moreover, in a May 2009 statement, the Veteran stated, in part, that he was not sure if the 1953 jeep accident that he believes injured his neck was ever reported and that he never received any treatment for his neck injury during service. With respect to private treatment records, the November 2014 Board remand directed, in pertinent part, that the Veteran be requested to identify all private medical providers of treatment for his cervical spine disability, and to complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information. An August 2015 letter to the Veteran provided him with a VA Form 21-4142 and requested identification of any medical providers. In response to this request, in February 2016, the Veteran stated he had attempted to obtain certain other medical records but that such were not available and he did submit the medical records he had been able to obtain. As such, another remand to obtain any additional medical records is not warranted. Additionally, VA satisfied the duty to assist the Veteran by providing a medical examination to the Veteran. Pursuant to the November 2014 Board remand, a neck conditions examination was afforded to the Veteran in February 2016. The February 2016 VA examiner interviewed the Veteran and conducted a physical examination, recorded clinical findings, documented the Veteran's subjective complaints, addressed the likely etiology of the Veteran's cervical spine disabilities, and provided adequate supporting explanation and rationale for all conclusions reached. The February 2016 neck conditions examination was thorough and all necessary evidence and testing was considered by the examiner. Therefore, the Board finds the February 2016 neck conditions examination report to be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Finally, as discussed above, the November 2014 Board remand directives specific to obtaining medical records and an examination were accomplished for the Veteran's service connection claim for a cervical spine disability. An April 2016 supplemental statement of the case was most recently issued to the Veteran after compliance of the November 2014 Board remand directives. Thus, there has been substantial compliance with the remand instructions for the claim regarding service connection for a cervical spine disability. Stegall v. West, 11 Vet. App. 268 (1998). Thus, for the reasons set forth above, the Board finds that VA has complied with the notification and assistance requirements. As such, appellate review may proceed without prejudice to the Veteran. II. Merits of the Claim Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). To establish service connection on a direct incurrence basis, the Veteran 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 between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In service connection claims, consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (a) (West 2014); 38 C.F.R. § 3.303 (a). In addition, certain chronic diseases, such as arthritis, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In his April 2009 application for benefits, the Veteran asserts that he has a current cervical spine disability that is directly related to an in-service jeep accident in 1953. In a May 2009 statement, the Veteran reported he was involved in a jeep accident during a training exercise. Specifically, he explained that the driver of the jeep was going too fast to negotiate a turn in the road and the jeep started sliding sideways and started to tip over, so the Veteran bailed out of the jeep and landed on his head some distance from the jeep. He further reported he was not sure if this accident was ever reported and he never received any treatment for a neck injury during service. He also stated that later there were times when his right arm would go numb and he would have to stretch his neck to relieve it and that he has weakness in his right arm. He further reported that a private neurologist told him his spinal stenosis was due to his in-service jeep accident. As to a current back disability, the February 2016 VA neck conditions examiner diagnosed cervical intervertebral disc syndrome, cervical degenerative joints and cervical fusion of C3 -C4 and C5-C6 in 1996. As such, there is competent medical evidence of current cervical spine disability. As to an in-service injury, as described above, the Veteran reported that he injured his neck during a jeep accident in 1953. He contends that he has experienced right arm numbness and weakness since that time. As noted above, the Veteran's service treatment records have not been obtained with the exception of his February 1955 separation examination report. In February 1955, the Veteran had a normal spine evaluation in a medical examination for separation from active service. Nevertheless, the Board notes that the Veteran is competent to report symptoms such as numbness and weakness. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, it may not be determined that lay evidence lacks credibility merely because the evidence is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board finds that, aside from the lack of contemporaneous medical evidence, there is no reason to doubt the Veteran's credibility as to his reports of experiencing arm numbness and weakness since his active service. Therefore, the Board accepts the Veteran's competent and credible statements as evidence that he experienced arm numbness and weakness and related symptoms in service. Therefore, there is evidence of an in-service event or injury. As to a nexus between the Veteran's current cervical spine disability and his in-service symptoms, the Board turns to the competent opinion evidence of record. In this case, the competent opinion evidence of record consists of the February 2016 neck conditions examination report. The February 2016 VA examiner reviewed the record and conducted an in-person examination of the Veteran. The examiner noted the Veteran's statements that he fell from a jeep in 1953 and related his subsequent neck problems to that incident. The examiner also noted the Veteran reported he first sought medical care for his neck in about 1957 and no specific recommendations were made. The examiner opined it is not at least as likely as not that the Veteran's current cervical spine disability was incurred in or caused by military service, to include the reported motor vehicle accident during service. In providing a rationale for the opinion, the examiner specifically noted that the Veteran's statements that he hurt his neck during the in-service jeep accident were considered. As a rationale for the opinion, the examiner explained the Veteran admitted that he sought no definitive treatment for his neck until 1996 when cervical spondylosis, along with a torn biceps muscle, caused such weakness that he needed to do something about it, as he also had significant neck pain at that time, and surgical intervention was indicated and carried out. The February 2016 VA examiner found the fact that 43 years had passed between the incident in 1953 and the seeking of the definitive treatment in 1996 was evidence against a serious injury causing significant cervical pathology in 1953. The February 2016 VA examiner stated it was very likely that the incident did cause some neck pain, but it was not likely that there was a 50 percent or greater probability the incident led to the lesions that prompted the surgical intervention, due to the amount of time that passed prior to the seeking of medical attention and the lack of significant traumatic findings documented on MRI (magnetic resonance imaging), specifically that no healed fracture or other post-traumatic changes were reported. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board finds that the February 2016 VA examiner's opinion is entitled to probative weight because it was based on personal examination of the Veteran, a thorough review of the relevant evidence of record, and the examiner's knowledge and expertise as a medical clinician; and because it was supported by appropriate rationale. The Board also notes that the opinion was consistent with the evidence of record. Specifically, that the February 1955 report of medical examination for separation from active service reflects a normal evaluation of the spine. The first post-service indication of a cervical spine disability is an October 1996 private medical record which stated the Veteran had a history of progressive arm weakness involving the right upper extremity for approximately three months, and that the Veteran reported that his symptoms began sometime possibly following a jeep accident in 1952, and that since that time, he has experienced varying degrees of discomfort involving the right upper extremity and neck. The October 1966 private medical record also noted, in part, that approximately five years ago the Veteran suffered an avulsion to the bicep tendon in the right upper extremity, which was accompanied with some degree of weakness afterwards; however, after the course of the last three years, despite all the above injuries, the Veteran noticed a progressive weakness involving the right arm to the extent that he must assist his right arm in performing activities of daily living. Thus, consistent with the February 2015 VA examiner's opinion, the record shows the Veteran's cervical spine symptoms did not necessitate treatment for many decades after separation from service. In addition, although the October 1996 private medical record does reference the in-service jeep accident and noted symptoms related to such, the record also stated the Veteran's right arm weakness had occurred for three months. Such is also supported by a December 1996 VA treatment record which noted, in part, under history of present illness, that the Veteran had progressive early onset cervical spondylitic myelopathy including clumsy hand syndrome greater on the right and Brown-Sequard syndrome with sensory deficit on the left and provided a postoperative diagnosis of cervical stenosis C3-C4, C5-C6 with cervical spondylitic myelopathy. Therefore, the Board accepts the February 2016 VA examination report as probative evidence that the Veteran's current neck disabilities are less likely than not etiologically related to service, including a 1953 jeep accident, in part, due to the lack of significant traumatic findings documented on the MRI in 1996. The Board also considered the Veteran's and his spouse statements relating his current neck disabilities to an in-service injury. In a statement received by VA in September 2016, the Veteran's spouse stated, in part, the Veteran started having problems with his right arm going numb in 1959 and that a neurologist said it was caused by his jeep accident when he was in the service. The Board notes that the Veteran's spouse's statement that his arm problems onset in 1959 is several years after the Veteran separated from service in 1955. Moreover, determining the etiology of a neck disability is a complex medical issue involving diagnostic testing, and often includes radiographic imaging. It requires medical knowledge and expertise. Neither the Veteran nor his spouse has been shown to possess the requisite medical training or knowledge to medically attribute his current low back disabilities to a particular injury or cause. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Therefore, neither the Veteran nor his spouse is competent to diagnose a neck disability or provide a nexus opinion for his current neck disabilities. In this case, the Board has afforded the greatest probative weight to the February 2016 VA examiner's opinion. The February 2016 VA examiner reviewed the record and provided an adequate negative nexus opinion based on her medical expertise. The February 2016 VA examiner opined the Veteran did not have a diagnosis of the cervical spine disability that was at least as likely as not incurred in or caused by the Veteran's military service, to include the reported motor vehicle accident during service. The VA examiner's opinion constitutes competent medical evidence and is afforded probative value for the reasons discussed above. See 38 C.F.R. § 3.159 (a)(1). Because the Veteran and his spouse are not competent to speak as to complex medical issues such as diagnosis or causation of a cervical disability, their statements do not weigh against the probative value of the February 2016 VA examiner's negative nexus opinion. Furthermore, neither the Veteran nor his spouse is competent to report what was told by a neurologist. To the extent the Veteran proffers this information as a positive nexus between his current cervical spine disabilities and service, the Board finds that a layperson's account of what a doctor purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to hold any probative value. Robinette v. Brown, 8 Vet. App. 69 (1995). Moreover, even if a neurologist may have told the Veteran that his cervical spine problems were attributable to an in-service jeep accident, the February 2016 VA neck conditions examination report demonstrates otherwise. However, there is no reasoning to support the purported neurologist's opinion, and, thus, it is accorded little probative value. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). To the extent that the record shows that the Veteran has been diagnosed with degenerative joint disease of the cervical spine, the Board has also considered whether the Veteran is entitled to service connection for a cervical spine disability on a presumptive basis as a chronic disease. See 38 C.F.R. § 3.303 (b). As noted above, arthritis is included in the list of "chronic" diseases under 38 C.F.R. § 3.309 (a), and may be service connected on a presumptive basis if manifested to a compensable degree within one year of separation from service. However, the Veteran has not argued, and the record does not show, that he was diagnosed with arthritis or any other "chronic" disease listed under 38 C.F.R. § 3.309 (a) during service or within one year of separation from service. In this case, the record shows that the Veteran had a normal evaluation of the spine on examination for separation from active service in February 1955. The record does not show a diagnosis of degenerative joint disease of the lumbar spine until 1996, many years after the Veteran's separation from active service. Therefore, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. In summary, the preponderance of the most probative evidence of record does not support a finding that it is at least as likely as not that there is a causal relationship between the Veteran's cervical spine disabilities and any in-service jeep accident. In light of the above, the preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a cervical spine disability, to include as manifested by right arm numbness and weakness, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs