Citation Nr: 1758074	
Decision Date: 12/14/17    Archive Date: 12/28/17

DOCKET NO.  09-25 099	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Atlanta, Georgia


THE ISSUES

1. Entitlement to service connection for residuals of a head injury.

2. Entitlement to service connection for a neck disability.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Saudiee Brown, Associate Counsel




INTRODUCTION

The Veteran served on active duty from October 1959 to January 1964 and from February 1964 to August 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  The Board previously remanded these matters in November 2014.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2002).

The issue of entitlement to service connection for residuals of a head injury is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

A chronic neck disability was not manifested in service or for many years thereafter, and such disability is not shown to be related to the Veteran's service.


CONCLUSION OF LAW

Service connection for a neck disability is not warranted.  38 U.S.C. §§ 1110, 5107 (b) (West); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service.  38 U.S.C. §§ 1110, 1131 (West); 38 C.F.R. § 3.303.  Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303 (d).

To substantiate a claim of service connection, there must be evidence of: A current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1153, 1166-67 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a).

Certain chronic diseases (including arthritis), may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time (one year for arthritis) following discharge from service.  38 U.S.C. § 1112 ; 38 C.F.R. §§ 3.307, 3.309 (West).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

In this case, the Veteran alleges that he has a neck disability due to service.  The Veteran initially asserts that he does not know when the onset of the symptoms began, and later asserts that it was due to hitting his head in service.

Service treatment records are negative for complaints, treatment, or diagnosis of a neck disability.  In fact, service treatment records only show complaints for a lumbar spine disability, which was later service connected by the RO.

In an April 2007 VA examination, the Veteran was diagnosed with degenerative arthritis of the cervical and lumbar spine.  The examiner did not provide a nexus opinion at this time.

In September 2012, the Veteran was afforded another VA examination for his cervical spine.  The Veteran was diagnosed with cervical spine degenerative disc disease and neural foraminal narrowing.  The Veteran stated that the date of onset of his symptoms was unknown.  Again, the examiner did not provide a nexus opinion.

In March 2015, the Veteran was afforded another VA examination for his cervical spine.  The Veteran was diagnosed with cervical spine degenerative disc disease.  The Veteran stated that he hit the side of his head during boot camp, which affected his hearing.  The examiner noted there was no evidence of a neck injury.  The examiner opined that it was less likely than not that the Veteran's neck disability was incurred in or caused by the claimed in-service injury, event or illness.  The examiner reasoned that degenerative disc disease of the cervical spine was a normal age related change, and that there was no evidence of a condition in service or continuity and chronicity of care.  In short, the examiner stated that a nexus had not been established.  Further, the examiner opined that the Veteran's neck disability was less likely than not proximately due to or the result of the Veteran's service-connected intervertebral disc syndrome status post surgery lumbar spine with degenerative arthritis.  Again, the examiner reasoned that the Veteran's degenerative disc disease of the cervical spine was a normal age related change and that there was no evidence of a condition in service or continuity and chronicity of care.

The Board must find the above evidence to be of high probative value.  The examiner provides clear reasoning to his medical opinion.

Post-service treatment records are negative for any opinion connecting the Veteran's neck disability to service.

The Board also considered the lay statements offered in support of the Veteran's claim.  The Veteran is competent to testify on factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  He is also competent to report symptoms of his condition.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  However, lay witnesses are not competent to provide a medical diagnosis.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  Thereby, the Veteran is not competent to definitively state the cause of his current disability.  Thus, the Board affords more probative weight to the VA examiner's opinion than the Veteran's own contentions, and there are no medical opinions to the contrary. 

The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application.  Gilbert, 1 Vet. App. at 54-56.  Therefore, , given the significant medical evidence in this case against the claim, the Board finds the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved.  Service connection for a neck disability is not warranted.

ORDER

Entitlement to service connection for a neck disability is denied.


REMAND

Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to adjudication of this claim.

In April 2007, the Veteran was afforded a VA examination for his residuals of a head injury claim.  At this time the Veteran was not diagnosed with a disability.

However, at a July 2013 hearing loss and tinnitus VA examination, the examiner opined that the Veteran's hearing loss was due to acoustic trauma and possible head trauma while in service.  The RO granted service connection for bilateral hearing loss and tinnitus in October 2013, effective from November 30, 2006.  Therefore, the Board finds that a new VA opinion, and/or VA examination if necessary, is warranted to determine whether there are any residuals of a head injury.  The opinion should address the July 2013 VA examiner's opinion that possible head trauma, in addition to acoustic trauma, in service caused bilateral hearing loss and tinnitus.

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Obtain any outstanding VA or private treatment records and associate those with the claims file.

2. After completion of the foregoing, forward the Veteran's claims file and all other relevant evidence to an appropriate VA examiner to determine the etiology of any residuals of a head injury.  The Veteran should be scheduled for a VA examination if necessary.  The examiner is first asked to identify whether there are any residuals of a head injury.  

If there are any residuals of a head injury, then the examiner is asked to provide an opinion regarding whether any residuals of a head injury, at least as likely as not (a 50 percent or greater probability) had their onset in, or were otherwise caused by, active service, to include the Veteran's reported head injury.

The examiner should address the July 2013 VA opinion linking the Veteran's bilateral hearing loss and tinnitus to service, due to acoustic trauma and possible head trauma.  

3. The claim must then be readjudicated.  If the claim remains denied, a supplement statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned 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 United States 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. §§ 5109B, 7112 (2002).



JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs