Citation Nr: 1752352 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-10 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for residuals of neck disability. REPRESENTATION Veteran represented by: John E. Walus, Esq. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD N. Shah, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In January 2014, the Veteran testified at a video conference hearing before the undersigned. A transcript of the hearing is of record. This matter was remanded by the Board in April 2015 for additional development. Such development was completed and the matter returned to the Board for appellate consideration. FINDING OF FACT The Veteran's neck disability did not originate in service, did not manifest within a year of service, and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for neck disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2012), 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The VA must notify the claimant of any information, including any medical or lay evidence, not previously provided to the VA that is necessary to substantiate the claim. See 38 U.S.C. § 5103 (West 2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VA's duty to notify was satisfied by the letter dated in November 2010. The VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103. The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. The Board notes that in October 2015, the Agency of Original Jurisdiction (AOJ) attempted to obtain the Veteran's medical records from Great Lakes Naval Hospital (GLNH) for the Veteran's September 1975 hospitalization. GLNH replied in November 2015 stating that no records were found for the Veteran. In December 2015, the AOJ sent a letter to the Veteran explaining that the AOJ had exhausted all efforts to obtain records from GLNH and requesting that the Veteran supply any available copies of treatment records from GLNH. The Veteran has not responded with any such records. The Board has reviewed the efforts by the AOJ, and finds it clear that further efforts to obtain records from the GLNH would be futile. The July 2015 VA medical opinion reflects that the examiner reviewed the Veteran's pertinent medical history and offered opinions supported by adequate rationale. Therefore, the opinion is adequate for determining entitlement to service connection. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claims in this Board decision. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein. There is no indication that there exists any additional obtainable evidence that has a bearing on this case that has not been obtained. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303 (2017). Establishing service connection generally requires: (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (i.e., a nexus) between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for a disease may be found if the disease is a chronic disease that was shown in service. The Veteran has been diagnosed with degenerative disc disease in his cervical spine (his neck). Degenerative disc disease is not a specifically listed chronic disease for VA purposes under 38 C.F.R. § 3.309(a); however, even assuming arguendo that it is encompassed by a broader listed disability, there were no manifestations within the first post-service year. See 38 C.F.R. § 3.307 (a)(3). The Veteran asserts that he has a neck (cervical spine) disability related to his active service. Specifically, the Veteran contends he injured his neck in a car accident in September 1975 and that his current neck disability results from that accident. The Board notes that the record shows the Veteran has a current neck disability and experienced a neck injury during service because of a September 1975 car accident. There is a large amount of evidence in this case, consisting of mainly medical evidence. The Board notes that it has reviewed the evidence in its entirety, but will not be discussing all of it with specificity. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (The Board is presumed to have considered all evidence presented in the record and is therefore not required to specifically discuss every piece of evidence.). After the Veteran's September 1975 car accident, he was ultimately diagnosed with a cervical strain at C-2. In November 1975, a United States Navy medical board concurred with the diagnosis of a cervical strain. In December 1975, the Veteran was honorably discharged from the United States Navy. The next day, the Veteran was evaluated by a physical evaluation board and found fit for duty. In April 1978, the Veteran was admitted to a hospital because he jumped out of a car that was moving at approximately 45 miles per hour. The physicians noted that the Veteran only had general abnormalities and diagnosed the Veteran with a cervical cord contusion. During a September 2004 VA examination, the examiner diagnosed the Veteran with degenerative disc disease at C5-C6. Having considered the Veteran's medical history, including the September 1975 car accident, the examiner found that the Veteran's degenerative disc disease was less likely than not related to any incident that occurred in-service. Post-service medical records show that the Veteran began receiving treatment for his neck disability in May 2010. Notably, the May 2010 VA Medical Center record states that the Veteran indicated that he had been feeling pain on the left side of his neck for the past 2-3 months. The Veteran submitted an April 2013 opinion from his former private chiropractor. The chiropractor provided a nexus opinion, stating that an injury to the cervical spine can lead to permanent abnormal structural changes to the cervical spine as a whole and lead to degenerative disc disease. The chiropractor found that the Veteran's current neck disability is more likely than not related to the September 1975 car accident. The chiropractor discussed the potential relationship between the Veteran's neck disability and the September 1975 car accident, but did not discuss the Veteran's post-service April 1978 hospitalization or his abilities between service and his 2010 neck pain. During a July 2015 examination, a VA examiner diagnosed the Veteran with degenerative changes at C5-C6. The examiner found that the Veteran's current neck disability was less likely than not related to a disease or injury in service, including the September 1975 car accident. The examiner noted that while the Veteran received a diagnosis of degenerative disc disease at the time of the September 2004 VA examination, he did not seek treatment for his neck disability until 2010. The examiner also noted that the Veteran was able to work as a truck driver and build things after service. Additionally, the examiner noted in the report that when the Veteran received treatment following the 1978 incident when he jumped from a moving car, x-rays were negative. The examiner concluded that the degenerative changes to the Veteran's neck were not unusual in a person of the Veteran's age and was part of the aging process in this case. Analysis Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). These standards are met in the VA examiner's evaluation but not the chiropractor's evaluation. In this regard the Board points out that the chiropractor made no mention of the Veteran's April 1978 cervical cord contusion resulting from exiting a vehicle that was moving at a high rate of speed. Thus the chiropractor either did not review the Veteran's entire relevant medical history, or chose to ignore the April 1978 cervical cord injury. In either case, the omission in the opinion renders the opinion of marginal probative value, given that the examiner based his opinion on the concept that an injury to the cervical spine can lead to permanent abnormal structural changes to the cervical spine as a whole and lead to degenerative disc disease. The chiropractor did not acknowledge a post-service cervical spine injury which clearly fits his description of an injury to the cervical spine. Nor did the chiropractor attempt to explain why the post-service injury played no role in the development of the current disability. For those reasons, the Board finds the chiropractor's opinion to be of no more than marginal probative value. In contrast, the July 2015 VA examiner based his opinion on an accurate understanding of the Veteran's medical history, addressing not only the September 1975 car accident in service, but the 1978 injury and lack of X-ray findings immediately following that injury (but several years following service), the lack of any complaints of neck problems for a number of years despite the Veteran's choice of occupation, and the compatability of the degenerative changes to the Veteran's neck with what would be expected of a person of the Veteran's age. The Board finds the VA examiner's opinion to be well-reasons, and consistent with the Veteran's medical history, and therefore probative of the question of the etiology of the neck disability. The Board notes that lay persons such as the Veteran are competent to provide opinions on some medical issues. However, in this case, the question of whether the Veteran has a neck disability that is related to his active service falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The intricacies in diagnosing neck disabilities and opining the etiology of such a disability are issues that require the expertise of a medical professional, particularly where, as in this case, there has been a significant passage of time without any documentation of any symptomatology. Therefore, the Veteran is not competent to provide an opinion on those issues. While the Veteran can report symptoms that he experiences, he does not have the necessary training to make medical opinions. While the Veteran had a cervical spine strain in service and has a current diagnosis of degenerative disc disease in the cervical spine, the evidence does not establish that his current neck disability is related to any of the neck pain complaints noted in service. The July 2015 VA examiner competently opined that the Veteran's diagnosed neck disability was not caused by or related to the September 1975 car accident. The preponderance of the evidence is against a finding that an in-service event caused the Veteran's current neck disability. Therefore, the criteria for service connection for the Veteran's neck disability have not been met and the claim must be denied. 38 U.S.C. § 5107 (b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for neck disability is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs