Citation Nr: 1802352 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-21 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, including spinal stenosis. 2. Entitlement to service connection for deviated septum. 3. Entitlement to service connection for sleep apnea. ORDER Entitlement to service connection for a cervical spine disorder, including spinal stenosis is granted. FINDING OF FACT The Veteran's cervical spine disorder as likely as not started during his military service, even if not actually diagnosed until years later after the conclusion of his service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for this cervical spine disorder, including spinal stenosis. 38 U.S.C. § 1131 (West 2014); 38 C.F.R. § 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1980 to September 1992. He appealed to the Board of Veterans' Appeals (Board/BVA) from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2014, the Veteran had a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing has been associated with his claims file documenting everything that was said during his hearing, including the withdrawal of another claim. The claim for a cervical spine disorder was remanded by the Board in July 2015 for further development. As concerning this claim, VA has met all statutory and regulatory notice and duty to assist obligations. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The claims of entitlement to service connection for a deviated septum and sleep apnea are being REMANDED to the Agency of Original Jurisdiction (AOJ), rather than decided in this decision. Entitlement to Service Connection for a Cervical Spine Disorder, Including Spinal Stenosis The Veteran contends that he has a cervical spine disorder because of his military service. Specifically, he asserts that during his active duty service he was involved in a motor vehicle accident (MVA), in which he sustained a neck injury. He alleges he has experienced neck pain ever since and, therefore, that his current neck disability is the result of that trauma in service. In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, certainly not in exhaustive detail, each and every piece of evidence he submitted or that VA has obtained on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each and every piece of evidence). Rather, the Board's analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him). Service connection is granted if it is shown the Veteran suffers from a disability resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition, meaning for a chronic (permanent) worsening of the disorder above and beyond its natural progression. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge will still be service connected if the evidence, including that pertinent to service, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To prevail on a direct service connection claim, there must be competent and credible (i.e., probative) evidence of (1) current disability, (2) in-service incurrence or aggravation of a relevant disease or an injury, and (3) a correlation ("nexus") between the disease or injury in service and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the 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). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must also determine whether the evidence is also credible, as only then does it have ultimate probative value. Layno, 6 Vet. App. at 469; Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...."). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The question for the Board is whether the Veteran's current cervical spine disorder is etiologically related to, or was aggravated by, an in-service disease or injury, notably, the MVA mentioned. The Board finds that competent, credible, and therefore probative evidence establishes this correlation, so the claim must be granted. An April 2015 VA medical examination report confirms the Veteran has cervical spinal fusion and spinal stenosis. As such, he has a cervical spine disability for VA compensation purposes; thus, this essential element of his claim has been met; that is, he has at least proven he has the condition being claimed. Thus, this case turns instead on the cause of this disability - in particular its purported relationship with a MVA he says occurred during his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran's service treatment records (STRs) reflect that he was initially treated for a neck injury in June 1982. (See June 1982 Chronological Record of Medical Care). In a March 1985 Report of Medical History, he marked 'yes' to having recurrent back pain. In his June 1992 Report of Medical History, for separation purposes, he again noted experiencing recurrent back pain since 1982. In support of this claim for a consequent cervical spine disorder, a fellow service member submitted a statement that was received in October 2010 attesting that he had personal knowledge of the Veteran's neck injury in service. This fellow military member affirmed the Veteran was involved in an MVA while a passenger in an armored personnel carrier (APC) when the vehicle was rear-ended by another APC. This commenting military member recalled that the Veteran was treated for the neck injury and given a neck brace. The Board finds the June 1982 in-service treatment and the October 2010 buddy statement, especially when coupled together, so considered collectively, confirms the Veteran's contention that he sustained a neck injury in service in the manner alleged. As such, the required element of an in-service occurrence/injury has been met. He therefore need only establish the required linkage between that MVA neck injury in service and his present-day disability, to in turn warrant the granting of service connection. Post-military service, the Veteran has been treated for cervical spine issues on numerous occasions. An October 1997 private treatment record reflects him having decreased range of motion of his cervical spine, posterolateral protruding annulus at C6-7, C6-7 radiculopathy. A November 2002 private treatment record reflects x-ray findings of mild spondylosis of the cervical spine and a clinical impression of cervical disc herniation at C5-6. Additionally, an August 2009 private treatment record reflects significant central spinal stenosis with spinal cord compression at C6-7 and herniated disc left at C5-6 and C7-11. A May 2014 medical opinion letter from the Veteran's private physician, Dr. J.H., linked the Veteran's cervical spine disorder to his military service. Dr. J.H. confirmed that the Veteran had been diagnosed with cervical disc disease and observed that he had dealt with many strenuous day-to-day duties in service that put much strain and force on his cervical spine causing this injury and present-day disability. The Veteran testified during his December 2014 hearing that his cervical spine disorder stems instead from the MVA during his service while he was stationed in Germany in 1982. He testified that he initially sought treatment for it in service in 1982, but did not seek further treatment for it again until 1992, so 10 years later. He explained that he had dealt with the pain until around 1992 when it got worse. He said he eventually received a diagnosis of cervicalgia with radiculitis in 1996. He conceded being in another MVA in 2006, after his service, but nonetheless maintained that that additional MVA merely aggravated his already existing cervical spine disorder, so is not the source or cause of this disability he is now claiming. He eventually had surgery in December 2013 owing to the extent of his impairment. Based partly on the Veteran's truthful admission of being involved in a subsequent MVA in 2006 (post service), the Board remanded this claim in February 2015 to obtain a medical opinion concerning the likelihood that the disability currently affecting his cervical spine (cervical disc disease with spinal stenosis) is a residual of the injury he sustained during his military service in June 1982 or, instead, more likely the result of the additional injury he since sustained in the additional MVA after service, in 2006. A VA medical examination and consequent opinion were obtained in April 2015. The examiner opined that the Veteran's claimed condition is likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran complained of neck pain and was diagnosed with cervical spasms in 1982. The examiner went on to note the Veteran did not have any neck pains during service after 1982. The examiner further noted that the Veteran was diagnosed with cervical stenosis, cervical radiculopathy and C5-6 HNP in 2006. The examiner concluded that there is no medical evidence supporting a finding that the Veteran's current cervical disorders are a result of his cervical spasm in 1982. Lastly, the examiner explained that she was unable to opine that the diagnosed cervical stenosis, radiculopathy or C5-6 HNP are a result of the Veteran's MVA without resorting to mere speculation. The Board finds that April 2015 VA medical opinion to be of little ultimate probative value, however. While the examiner noted the Veteran's 1982 complaint of neck pain, the examiner failed to also note or otherwise take into account the subsequent 1985 and 1992 notations of recurrent back pain. Notably, the 1992 in-service record reflects the Veteran had been experiencing recurrent back pain since 1982, the year of the cervical spasm diagnosis and MVA. Additionally, the examiner failed to note or otherwise account for the Veteran's 1997 (approximately 5 years from separation) private treatment record confirming he had decreased range of motion of his cervical spine, posterolateral protruding annulus at C6-7, C6-7 radiculopathy. Rather, the VA examiner only noted the cervical stenosis, cervical radiculopathy and C5-6 HNP 2006 diagnosis, which occurred more recently, approximately 14 years post service. In other words, the VA examiner did not consider all of the relevant facts, which in turn tends to undermine the probative value of her opinion. See Reonal v. Brown, 5 Vet. App. 458 (1993) (An opinion is only as good and credible as the history on which it was based). The Board resultantly finds the April 2015 opinion deficient. The VA examiner seemed to base her unfavorable conclusion on the mere absence of treatment records documenting neck problems until 2006. In so doing, she failed to discuss relevant medical treatment records prior to then and the Veteran's credible lay statements. An opinion based on the absence of treatment records without consideration of a Veteran's competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Therefore, following review of the record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's cervical spine disorder incepted during or on account of his military service, and especially because of the MVA in service and consequent injury to his neck. The Board finds the lay assertions made by him regarding the onset of his symptoms during active duty service to be credible. Further, his statements are consistent with the available medical evidence of record, in particular, his in-service treatment records. Additionally, the medical evidence coupled with the credible lay statements provides the required "nexus" in regards to the Veteran's in-service neck injury and his subsequent treatment and diagnosis of various cervical spine disorders. Notably, prior to the 2006 post-service MVA, medical treatment records reflect he had decreased range of motion of his cervical spine, cervical disc herniation at C5, C6, and C7, C6-7 radiculopathy, and mild spondylosis.( See October 1997 and November 2002 private treatment records). Those impairments and resultant diagnoses preceded his additional MVA in 2006. Therefore, that additional MVA, post service, cannot be the sole source of his impairment. Moreover, there has not been differentiation of the extent of his impairment that is the result of his MVA in service versus after service. See Mittleider v. West, 11 Vet. App. 181 (1998). Also, the May 2014 medical letter from his private physician provides a supporting opinion linking the Veteran's current neck disability with his military service. Reasonable doubt created by the approximate balance of evidence must be resolved in favor of the Veteran. 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, as explained, this need only be an "as likely as not" proposition, which in this particular instance it is for the reasons and bases discussed. Affording the Veteran the benefit of the doubt, the Board finds the evidence is at least in equipoise as to whether the Veteran's cervical spine disorder, including spinal stenosis, had its onset during or owing to his active duty service. Consequently, service connection is granted. 38 U.S.C. § 5107 (b). REMAND A May 2017 rating decision denied the Veteran's additional claims of entitlement to service connection for deviated septum and sleep apnea. In June 2017, in response, he filed a Notice of Disagreement (NOD) through his representative with that rating decision. A Statement of the Case (SOC) has not been issued, however, concerning these additional claims. In this circumstance the Board is obligated to remand these claims for issuance of this SOC, also to give the Veteran opportunity in response to complete the steps for "perfecting" his appeal of these additional claims by also filing a timely Substantive Appeal (VA Form 9 or equivalent statement). See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, these remaining claims are REMANDED for the following action: Provide the Veteran an SOC concerning his claims of entitlement to service connection for deviated septum and sleep apnea. 38 C.F.R. § 19.26 (2017). He and his representative are reminded that, to in turn vest the Board with jurisdiction over these additional claims, a timely Substantive Appeal (VA Form 9 or equivalent statement) must then be filed to complete the steps necessary to "perfect" the appeal of these additional claims to the Board. 38 C.F.R. §§ 20.200, 20.202, etc (2017). Only if this appeal is perfected should these claims be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 (West 2017). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Associate Counsel Copy mailed to: [Penelope Gronbeck, Attorney] Department of Veterans Affairs