Citation Nr: 1751823 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 08-14 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for degenerative arthritis of the cervical spine C5-C6, with right cervical radiculopathy. REPRESENTATION Veteran Affairs represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel INTRODUCTION The Veteran served in the U.S. Navy from October 1981 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The 2015 decision denied service connection for degenerative arthritis of the cervical spine C5-C6, with right cervical radiculopathy. In June 2015, the Board remanded this issue for the issuance of an SOC. In June 2017, the Board again remanded the claim for further development. The necessary development has been accomplished, the claim is before the Board for adjudication. FINDINGS OF FACT The more probative evidence fails to demonstrate that the degenerative arthritis of the cervical spine C5-C6, with right cervical radiculopathy is related to his active duty service. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the cervical spine C5-C6 with right cervical radiculopathy have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist, and the Veteran's representative has not raised any procedural arguments regarding the notice or assistance provided in this case. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection The Veteran seeks service connection for degenerative arthritis of the cervical spine C5-C6 with right cervical radiculopathy. The more probative evidence fails to link the Veteran's degenerative arthritis of the cervical spine C5-C6 with right cervical radiculopathy to his active duty military service and therefore the claim will be denied. 38 C.F.R. §§ 3.102, 3.303. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the U.S. Court of Appeals for the Federal Circuit held that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309 (a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). See also 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert, denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In addition, as noted above, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In addition, the U.S. Court of Appeals for Veterans Claims (Court) held that the credibility of lay evidence can be affected and even impeached by factors such as inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record. See Macarubbo v. Gober, 10 Vet. App. 388 (1997). Degenerative Arthritis of the Cervical Spine C5-C6 with Right Cervical Radiculopathy The Veteran contends that his degenerative arthritis of the cervical spine C5-C6, with right radiculopathy, is the result of active duty service. Specifically, the Veteran alleges that his injury is the result of a 2004 auto accident. Medical records reflect the Veteran was involved in a motor vehicle accident in October 2004. The December 2004 radiologic examination report, reveals the Veteran's complaint of sharp radiating pain from his neck to his lower back. The examiner reported that axial CT images of the lumbar spine were without contrast and showed no fracture, subluxation or dislocation. He further indicated "limited view of the soft tissues and osseous structures were otherwise unremarkable". As noted in the March 2015 VA examination, the Veteran is diagnosed with degenerative arthritis. Therefore, the Veteran has a current disability, as required by 38 C.F.R. § 3.303. As mentioned above, the Veteran's medical records show that the Veteran was involved in a motor vehicle accident in 2004. Private medical records from 2012, note complaints of axial neck pain with radiation into the right upper extremity and bilateral hand pain for several years' with a duration secondary to" undetermined inciting events". The Veteran submitted additional records; however, those records, including records from St. Clements medical center, address the Veteran's symptoms but not the etiology of his neck condition. The Veteran's separation examination, is silent regarding any neck injury. The Veteran submitted records from his private physician. The February 2015 letter from the Veteran's doctor, indicates axial neck pain, with no inciting event and also fails to provide an opinion regarding whether the back pain is related to the Veteran's military service. The Veteran was afforded a VA examination in March 2015. In June 2017, that VA examiner provided an addendum opinion. The examiner determined that it is less likely than not (less than 50 percent probability) that the Veteran's neck injury was incurred in or caused by the claimed in-service injury, event, or illness. The Board notes the clerical error in the 2017 VA opinion, where the examiner typed that the condition was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. Based on the examier's rationale, which supports a finding that the Veteran's neck condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness and in the interest of not unnecessarily further delaying the Veteran's claim, the Board's finding is based upon the examiner's rationale. The examiner opined, that after extensively reviewing the Veteran's medical records, both in service and post-discharge, he noted that in March 2012, the Veteran complained of neck pain radiating to the arm for "several years duration with undetermined inciting event". He also noted the Veteran's treatment for neck pain in 2011, including EMG/NCV, which was normal and repeat EMG/ NCV in 2012 which showed right C6 radiculopathy that suggested an interim change in his cervical spine condition. The examiner concluded that it is likely that the Veteran's cervical spine condition developed in the time period 2011-2012, despite previous minor neck complaints, which resolved easily. He added, it is therefore unlikely that his cervical spine condition developed during his active duty military career. The examiner opined that there has been no documentation of continuity of care for the last 47 years; therefore, the current condition is not related to service. The examiner considered the Veteran's reported stiff neck in September 2000, his October 2004 car accident, complaints of pain throughout his entire back and headaches in his upper neck in 2004 and his reports of sharp radiating pain to the lower back in December 2004. Assuming that the Veteran did suffer from back pain post-service, the Board finds that the medical evidence regarding the etiology of his current disability is more probative than the Veteran's lay statements. The March 2015 VA examination, along with the subsequent June 2017 medical opinion, reflects review of the Veteran's treatment records and provides reasoned medical opinions regarding the etiology of the Veteran's neck disability. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds this medical opinion is probative because it is factually informed, medically based, and responsive to the inquiry. The examiner also provided a full and complete rationale for the opinion. As held by the Court, "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 the physician reaches". Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions are within the province of the Board. Id. Thus, in this case, the Board finds that the VA examiners' opinion is entitled to the most probative weight regarding the etiology of the Veteran's neck disability. Although the Veteran can attest to having pain in his neck, as this is within the common knowledge of lay persons, the factual picture presented here is complex. Whether the Veteran's current neck disability can be linked to any current diagnosis or the prior resolved neck strain in service cannot be determined by mere observation alone. The Board finds that determining the exact cause of the Veteran's neck disability is not within the realm of knowledge of a non-expert given the above facts. As the evidence does not show that the Veteran has expertise in medical matters, the Board concludes that both the Veteran's nexus determinations in this regard are not probative of whether the Veteran has a current neck disability related to his active duty service, any incident therein, or secondary to any service-connected disability. Thus, the Veteran's statements are afforded less probative value with respect to the medical question of whether he has a current neck disability that is related to his active duty service or to any service-connected disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Neither the lay evidence nor the medical evidence separately, or in combination, rises to the level of equipoise regarding the Veteran's claim for service connection for a cervical spine disability. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits ...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA ... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Accordingly, given the record before it, the Board finds that the evidence against the claim for a neck disability is more probative than the evidence in favor of the claim. Therefore, the Veteran's claim for service connection for degenerative arthritis of the cervical spine C5-C6, with right cervical radiculopathy must be denied and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for degenerative arthritis of the cervical spine C5-C6, with right cervical radiculopathy is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs