Citation Nr: 1745564 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 12-27 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE 1. Entitlement to service connection for intervertebral disc syndrome (IVDS) with degenerative arthritis of the cervical spine (neck disability). 2. Entitlement to an increased disability rating for scar status post lipoma removal, occipital scalp. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Labi, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1983 to May 2003. This matter comes to the Board of Veterans Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This matter was previously before the Board in September 2015 and August 2016 when it was remanded for additional development. Pursuant to the Board's September 2015 and August 2016 remands, the Agency of Original Jurisdiction (AOJ) provided the Veteran with new VA examinations and medical opinions. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's February 2014 remand. Stegall v. West, 11 Vet. App. 268 (1998). The matter is now returned to the Board. In a December 2016 rating decision, the RO continued the Veteran's noncompensable rating for scar status post lipoma removal, occipital scalp. The Veteran filed a timely notice of disagreement (NOD) in January 2017. However, a Statement of the Case (SOC) regarding this claim has not been issued. The Board is required to remand the case for issuance of the SOC. Manlincon v. West, 12 Vet. App. 238 (1999). The issue of entitlement to an increased disability rating for scar status post lipoma removal, occipital scalp is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran's diagnosed neck condition did not have its onset during active service, did not manifest within one year of separation from active service, and was not caused by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a neck disability have not all been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 3.326 (2016); See also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). "To establish a right to compensation for a present disability, a 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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). As to non-expert or lay opinions with regard to diagnoses or a relationship of a condition to service ("nexus"), whether such opinions are competent evidence depends on the question at issue and the particular facts of the case. Although it is an error to categorically reject a non-expert 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 addressed the competency of lay diagnoses, stating 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). 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. When addressing a claim on the merits, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). The Veteran contends that his neck disability is directly related to active service. Service treatment records (STR) indicate treatment for complaints of upper trapezius pain and muscle spasms. STRs do not indicate treatment for a diagnosed cervical or neck condition, nor do they indicate a chronic cervical spine or neck condition. Medical treatment records received in November 2016 provide a record dated November 21, 2007 for treatment at the 11th Medical Group, Bolling Air Force Base, indicating that the Veteran had neck and upper back pain for a few days, rating it a 3 out of 10 for pain. The Veteran indicated that he did not previously have neck or upper back pain, and that he now frequently had stiffness of his neck or upper back in the morning. He noted a family history of neck and back pain or arthritis, noting bursitis in his right shoulder. The record indicates an assessment of a neck sprain. Private treatment records received in January 2011 provide a January 2008 emergency department record from Reston Hospital Center indicating a diagnosis of acute cervical radiculopathy. It notes stiff neck (anterior) and cervical muscle strain and spasm cutaneous dysesthesia. A subsequent radiologic examination report from March 2008 indicates neck and left upper extremity pain, and an MRI showed an abnormal cervical spine. VA treatment records received in November 2016 provide a record dated April 7, 2008, indicating that the Veteran developed neck pain, which subsequently resolved. The Veteran underwent a VA examination in February 2011. The examination report indicates that the Veteran reported being diagnosed with a herniated disc with nerve impingement, and that the condition existed for 10 years. The report indicates that the condition is not due to injury or trauma and that the Veteran reported experiencing constant pain in his neck beginning in 2000. Upon examination of the cervical spine, there was evidence of radiating pain on movement described as upper back to neck as well as evidence of muscle spasm described as upper back. The report indicates no ankylosis of the cervical spine. The examiner diagnosed the Veteran with IVDS with degenerative arthritis changes, noting that the most likely involved peripheral nerve is the musculocutaneous nerve, affecting the left side of the body. An April 2012 VA opinion indicated that the Veteran's neck disability was less likely than not incurred in or caused by active duty service because there was "no evidence in available service records indicating any continued complaint of or treatment for neck problems while on active duty." However, in the Veteran's notice of disagreement (NOD), he identified an automobile accident as a possible contributing factor to his current neck symptoms. He also indicated that his duties as an electronic systems craftsman involved moving and carrying heavy equipment and machinery. The Veteran's DD-214 confirms that his military occupational specialty (MOS) was an electronic systems craftsman. A May 2015 buddy statement provided by a fellow soldier indicates that the individual was stationed with the Veteran during his tour of duty in Turkey and recalled that he was involved in an accident in a vehicle traveling to a site to perform maintenance. He recalled that the Veteran was in some discomfort after the accident but that he does not know firsthand what medical treatment the Veteran received as a result. A VA medical opinion issued in November 2015 provided a negative medical opinion, indicating that the Veteran's neck disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the contention that the current neck issues resulted from his job duties involving transferring heavy equipment, began during or are linked to service cannot be made without resort to mere speculation. The examiner stated that cervical vertebrae are not weight bearing joints and that lifting is not a cause of cervical disk degeneration. The examiner noted that the statements of having suffered a neck injury due to a motor vehicle accident while in service had been raised as a link to the current condition. The examiner explained that the contention that a "whiplash" injury results in cervical degenerative disc disease is frequently made, but that it is not supported in orthopedic and occupational medicine literature. He noted that "whiplash", also known as neck strain/sprain, is an injury of the muscles, tendons or ligaments, and the majority of people are treated conservatively and recover without residual effects. The November 2015 examiner explained that cervical degenerative disease is not noted in medical literature as a complication of this type of injury. The examiner explained that the Veteran's current neck condition is degenerative, the result of chronic wear and tear, a genetic predisposition, and the loss of fluid in the disk spaces, and that it most often affects middle age and older people. In support of his opinion, the examiner stated that there was no complaint of or treatment for neck problems in service. However, a review of the record shows that the Veteran sought treatment for trapezius muscle pain in December 1986 and muscle spasm in January 1999. Because the examiner did not provide an opinion as to whether the Veteran's current neck disability is related to complaints of pain in the trapezius muscle during service or to the Veteran's job duties involving the transferring of heavy equipment during service, an addendum opinion was ordered to address the possible connection. Accordingly, the Veteran underwent a December 2016 VA examination which indicated a previous diagnosis of degenerative arthritis of the cervical spine. The examination report indicates that the examiner found that the Veteran's current neck condition is less likely than not caused by or a result of service. The examiner opined that the Veteran's neck condition is less likely than not proximately due to or the result of the claimant's service-connected conditions, noting that the Veteran's service-connected thoracic spine condition did not cause the Veteran's neck condition. The examiner stated that the Veteran's neck condition clearly and unmistakably was not aggravated beyond its natural progression by an in-service event, injury, or illness. The report notes that the Veteran's motor vehicle accident was in 2000 but his trapezium strain/spasm complaints in STRs were prior to that time and are not related to a motor vehicle accident. The examiner noted that there is no evidence that the accident caused DDD. The examiner noted that the Veteran had self-limited trapezium muscle strain/spasm in service but that they were self-resolving and were not related to DDD of the cervical spine. The examiner noted that the Veteran's current neck condition did not occur until the 2007-2008 time period, as documented in medical treatment records discussed above. The examiner opined that the cause of the Veteran's neck condition is aging. A January 2017 addendum opinion to the December 2016 VA examination is of record. The examiner explained that regarding documented treatment in December 1986 and January 1999 for pain in the trapezius, the Veteran had a self-resolving acute strain of that muscle in service, a condition which is no longer present. The examiner noted that the Veteran's current condition is degenerative arthritis of the cervical spine. The examiner explained that regarding the Veteran's MOS as an electronic systems craftsman, he was unable to locate peer-reviewed articles reporting that people with that specific job develop degenerative arthritis of the cervical spine. The examiner noted that the Veteran reported having neck pain after an automobile accident, but he opined that the motor vehicle accident did not cause the Veteran's degenerative arthritis of the cervical spine. Based on the above, the Board finds that the December 2016 VA examination with the January 2017 addendum are adequate and highly probative, as they provide a detailed rationale as to the medical opinion regarding a connection between the Veteran's in-service complaints of neck problems and his current neck condition. The Veteran submitted a letter in February 2017 in which the Veteran states that he specifically told the December 2016 examiner that he experienced neck pain while in service, both before and after the automobile accident. The Veteran indicated that some medical experts have stated that "arthritic deterioration of the thoracic spine is less likely to deteriorate than the cervical spine." The Veteran questioned whether that would suggest a likelihood of an onset of the cervical spine arthritis at approximately the same timeframe as the thoracic spine arthritis because cervical arthritis is more common than thoracic arthritis. The Veteran also questioned whether the more common form may have occurred during service since the rarer one was found to be connected to service. The Veteran contends that there is a relationship between his current neck condition and military service. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Laypersons are competent to report (1) symptoms observable to a layperson, e.g., pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that the Veteran has complained of pain during and after service as discussed above. While the Veteran is competent and credible to report his pain and symptoms both during and after service, the Veteran is not competent to associate his symptoms in service with his current disability. Here, the Veteran is not medically trained and is therefore not qualified to competently opine about medical etiology. Although the Veteran claims that his neck disability is related his service, it is well established that a layperson without medical training is not qualified to render medical opinions regarding the etiology of certain disorders and disabilities. 38 C.F.R. § 3.159(a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, a neck disability, specifically IVDS with degenerative arthritis of the cervical spine, requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. The origin or cause of the Veteran's neck disability is not a simple question that can be determined based on mere personal observation by a lay person, the Veteran's lay assertion is not competent to establish a nexus. Jandreau, 492 F.3d at 1376-77; See also Davidson, 581 F.3d at 1316. Therefore, the Board finds the lay statements regarding the nexus element are not competent evidence. The Board finds that the specific, reasoned opinions of the VA examiners provided in the discussed VA examinations are of greater probative weight than these lay statements. The weight of the evidence is thus against a relationship between the Veteran's current neck condition and service. While the Veteran has a current diagnosis of IVDS with degenerative arthritis of the cervical spine, his condition was not related to, nor had its onset during active military service. Other than the Veteran's statements, there is no indication of a direct link between the Veteran's current disabilities and service. The record provides no medical evidence of a connection between the Veteran's claimed condition and his military service. For the reasons described above, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for IVDS with degenerative arthritis of the cervical spine, claimed as a neck disability. Therefore, the claim must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for IVDS with degenerative arthritis of the cervical spine is denied. REMAND In a December 2016 rating decision, the RO continued the Veteran's noncompensable rating for scar status post lipoma removal, occipital scalp. In January 2017, the Veteran filed a timely NOD. A review of the record shows that the RO has not issued an SOC with regard to this claim. Accordingly, this issue must be remanded to the RO for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Furnish the Veteran and his representative with an SOC regarding the issue of entitlement to an increased disability rating for scar status post lipoma removal, occipital scalp. The Veteran must be advised of the time limit in which she may file a substantive appeal. See 38 C.F.R. § 20.302(b). If the Veteran perfects the appeal and the benefit remains denied, return the case to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs