Citation Nr: 1751115 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 11-09 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active military service from November 1965 to November 1967, with subsequent service with the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from the November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran appeared at a December 2015 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in February 2017 and was remanded for further development. FINDING OF FACT The Veteran's cervical spine disability is not related to his military service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's 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, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); 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). As for the duty to notify, a VCAA letters were sent to the Veteran in May 2010. As for the duty to assist, the Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Additionally, a VA examination has been secured in connection with the current claim satisfying VA's duty to assist with respect to obtaining a VA examination. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Compliance with Prior Board Remands The Board observes that this case was previously remanded by the Board in February 2017. The purpose of this remand was to obtain a VA medical opinion, which was obtained in June 2017. The Board therefore finds that there was substantial compliance with the prior remand order, as is discussed more fully below, and the Board may continue with its determination. Stegall v. West, 11 Vet. App. 268 (1998). III. Other Due Process Considerations As noted in the Introduction, the Veteran was afforded a hearing before the undersigned VLJ in December 2015. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ asked the Veteran specific questions concerning the symptoms of and treatment for his cervical spine disability. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. In addition, the Veteran was assisted at the hearing by an accredited representative from Texas Veterans Commission. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). IV. Service Connection Generally Service connection may be established for a disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). V. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issue on 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. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez 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 claim. The Veteran's service medical records show that he was involved in a motor vehicle accident while on active duty for training in June 1976, in which he sustained an injury to the right side of his chest and right hand. The Veteran contends that his current cervical spine disability was caused by this accident. However, none of the service records contain any mention of neck pain following that incident. In September 2010, a VA examination occurred, however, there is no complete opinion stating the etiology of the Veteran's cervical spine disability (although the examiner did make a listing of factors which tended to weigh against a nexus to service such as x-rays being compatible with age). Additionally, the Board acknowledges that a June 2011 private medical report stated that the Veteran's cervical spine disability is more likely than not related to his in-service injury. However, there is no rationale accompanying this opinion and therefore the Board does not afford it probative weight. Pursuant to the Board's February 2017 remand, a VA addendum opinion was obtained to address whether or not the Veteran's cervical spine disability is related to his military service. The examiner stated that it is less likely than not that the Veteran's degenerative disease of the cervical spine was related to his motor vehicle accident sustained on June 14, 1976 during his National Guard training. The examiner then summarized the Veteran's in-service injury and corresponding medical records. The examiner stated that after the Veteran's accident, the Veteran was evaluated by a physician whom indicated a small cut to the Veteran's right hand, chest wall bruises, and strain and a bruised leg. The Veteran received wound care, analgesic creams, muscle relaxant, and an analgesic tablet was prescribed. On June 26, 1976, the Veteran was seen for a follow-up and complained of pain to his right rib cage. On the same day as the follow-up, the Veteran also made a statement of the injury indicating bruising to the right leg and right side of his chest as well as the cut to his right hand. The Veteran's statement also stated that he was experiencing pain from his rib injury. The June 2017 examiner noted that it was not until September 2009, 33 years after the Veteran's in-service motor vehicle accident, which the Veteran presented to a neurosurgical clinic with complaints of neck pain. At that time, a MRI revealed several diagnoses regarding the Veteran's cervical spine including mild cervical spinal stenosis, moderate disc space narrowing, and mild degeneration. The June 2017 examiner concluded that the Veteran's current cervical spine disability is not related to his military service as the Veteran's September 2009 MRI findings are at least as likely as not compatible with age and senescence. The Board notes that the Board's February 2017 remand instructed the VA examiner to discuss the Veteran's June 2011 private medical report stated that the Veteran's cervical spine disability is more likely than not related to his in-service injury. Although the examiner did not specifically reference this medical record, the examination report does state that the examiner reviewed the Veteran's entire file. Therefore, the Board finds that the June 2017 examination does comply with the Board's February 2017 remand. Additionally, as discussed above, there is no rationale accompanying the June 2011 private opinion so the Board does not afford it probative weight even if it were to be discussed by the VA examiner. The Board has also considered the numerous lay and buddy statements made in connection with the Veteran's claim. However, the evidence does not show that these individuals have a medical background or medical expertise, and therefore they are considered lay persons in the field of medicine. Accordingly, they do not have the expertise to render a competent opinion on an issue requiring medical knowledge, training, or expertise. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay testimony is competent as to matters capable of lay observation or within a person's first-hand experience, and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical complexity. See Jandreau, 492 F. at 1376-77; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Thereby, the Board finds that entitlement to service connection for a cervical spine disability is not warranted as there is no evidence of a medical nexus between the Veteran's current diagnosis and his military service. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b). ORDER Service connection for a cervical spine disability is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs