Citation Nr: 1802586 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-09 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a neck-related disability, to include residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, to include headaches, blurred vision, and dizziness. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1974 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In December 2016, the Appeals Management Center (AMC) granted service-connection for left facial neuralgia. As the grant of left facial neuralgia represents a full grant of the benefit sought on appeal, and the Veteran has not filed a notice of disagreement (NOD), the issue is not before the Board. This matter was previously remanded by the Board in October 2012, July 2015 and July 2016 for further development. FINDING OF FACT The competent medical evidence does not show that the Veteran has a neck-related disability, to include residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, to include headaches, blurred vision, and dizziness that was incurred in or aggravated by service. CONCLUSION OF LAW The criteria for service connection for a neck-related disability, to include residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, to include headaches, blurred vision, and dizziness have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA's duty to notify was fulfilled by a November 2007 letter. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's service treatment records, VA medical treatment records and indicated private treatment records have been obtained. Hurd v. West, 13 Vet. App. 449, 452 (2000). The Veteran was afforded VA examinations in December 2009 and September 2015. The Board previously deemed these examinations inadequate. A supplemental opinion was provided in July 2016. The examiner offered a speculative opinion and as a result, the Board finds this opinion inadequate. Subsequently, an August 2017 VHA opinion was obtained to address the etiology of the Veteran's residuals of a left neck surgical intervention. The VHA opinion took into consideration the Veteran's pertinent medical history, his lay assertions and complaints, and a review of the record. The Board, therefore, finds that the August 2017 VHA opinion is adequate for adjudication purposes. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In a December 2017 statement, the Veteran's representative asserted that the VHA opinion was speculative and inadequate. This will be addressed further below. The Board notes that because the opinions rendered in December 2009, September 2015 and the July 2016 supplemental are inaccurate, they will not be addressed further in this decision. In the July 2016 remand, the Board requested that the RO secure additional treatment records and obtain a supplemental opinion regarding the likely pathology and etiology of each of the Veteran's diagnosed disabilities. The Board finds that these actions were accomplished. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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) (2017). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2017); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his nerves were severed during the surgery in service causing headaches, blurred vision, and dizziness, which he has continuously endured since then. The Veteran has a current diagnosis of migraines, including migraine variants and degenerative arthritis of the cervical spine. Hence, the first element of a service connection claim is met. Service treatment records (STRs) show that the Veteran underwent a left neck exploration and drainage of a lateral pharyngeal abscess in January 1975. On his first postoperative day, the Veteran had swelling that increased and extended up to the side of his face. The final diagnosis was a lateral pharyngeal abscess, left, due to enterococci and staph aureus. His medication was switched, and the swelling "greatly decreased." The Veteran was then placed on convalescent leave for 13 days in February 1975. No other postoperative complications were noted. A statement of medical condition dated in late February 1975 indicated no change in the Veteran's medical condition since the prior examination in January. Private treatment records dated in November 2007 indicate that the Veteran complained of neck, back, and frontal headache pain. He indicated that he was injured in service by being beaten in the head with a bedpost. A computed tomography (CT) of the head in October 2007 revealed: "unremarkable computed tomographic evaluation of the brain." Private treatment notes dated in January 2010 indicate that the Veteran underwent another CT scan for his neck pain and headaches. The impression of the scan for the head revealed: "no intra or extra-axial lesions demonstrated." A scan of the neck revealed that the lordotic curvature of the cervical spine was maintained. The anterior vertebral line, posterior vertebral line, and spinolaminar lines were well-maintained from the skull base through T1. The prevertebral soft tissues appeared unremarkable. The dens and lateral masses of Cl and C2 were within normal limits. The vertebral bodies and disc spaces are well-maintained. Moderate degenerative changes were seen in the neural foramen but were age-appropriate in appearance. Flexion and extension projections demonstrated no subluxation. No focal abnormality was identified in the imaged lung apices. Post-service VA treatment notes dated in December 2009 indicate that the Veteran was seen in the Emergency Room for complaints of headaches. The Veteran was assessed with chronic pain and headaches, along with anxiety. The staff physician discussed with the Veteran the potential for tolerance and addiction and the need to follow chronic issues, especially chronic pain issues with his Primary Care Physician (PCP). Post-service VA treatment notes dated in February 2010 indicate that the Veteran was seen for complaints of neck pain and headaches, which he related had been ongoing since 1975. The attending neurologist advised the Veteran that his chronic use of opioids often causes rebound headaches. The Veteran was also informed that it usually "takes about 3 months for the endorphin system to recover from the use of chronic opioids and that the headaches may persist over this period." An August 2010 consult notes that he Veteran complained of neck, back, and headache pain. The Veteran was given a refill of oxycodone and methadone. Private treatment records dated in January 2011 indicate that the Veteran was diagnosed with osteoarthritis and cervical radiculopathy, pinched nerve in the neck. Additionally, CT of the head/maxillofacial and cervical spine was conducted. The head/maxillofacial CT revealed a comminuted depressed left temporal bone fracture with fracture fragment depression of 4.0 mm. No gross intracranial hemorrhage was identified, but there was an overlying left temporal scalp soft tissue swelling. The CT of the cervical spine revealed a well-aligned cervical spine. The vertebral body heights were preserved, with no findings of fracture or acute listhesis. There was multilevel spondylosis with moderate segmental stenosis suspected at 04/5 and possibly at 06/7 and multilevel moderate bony neuroforaminal encroachment with probable severe right bony neuroforaminal narrowing at C5/8. Private treatment notes dated in February 2011 indicate that the Veteran was seen in the Emergency Room with complaints of headaches and neck pain. Upon physical examination, the physician noted that the head was atraumatic and the neck was supple. Post-service treatment notes dated in March 2012 indicate that the Veteran's medical history includes a history of migraines, vertigo, blurred vision, among other ailments. Post-service records dated in April 2013 indicate that the Veteran was involved in a motor vehicle accident in February 2013, and he suffered a cervical fracture, pelvic fracture, and fractures of both legs, requiring 11 surgeries. Notes further indicate that the Veteran is "now suffering from chronic pain for which he takes mso4 [Morphine sulfate] and valium." A VHA opinion was obtained in August 2017. The neurologist took into consideration the Veteran's pertinent medical history, his lay assertions and complaints, and a review of the record. He noted that the Veteran had claimed that in January 1975 that he had surgical drainage of a left lateral pharyngeal abscess in the left side of his neck and subsequently, claimed to have had headaches, blurred vision, and dizziness since then. The neurologist concluded that it is less likely than not that the Veteran's headaches, blurred vision, and dizziness are causally related to his active service or any incident in service. The neurologist explained that in [r]eviewing [the Veteran's] surgical records of January 1975, he had a successful drainage of the left lateral pharyngeal abscess and had been treated with appropriate antibiotics for the same. A full uncomplicated recovery has been documented without any complications. [The] Veteran did not have any traumatic brain injury/concussion/cervical spinal injury due to his uncomplicated pharyngeal abscess drainage. Therefore, it is highly unlikely that this procedure has led [the Veteran] to have ongoing headaches, blurred vision, and dizziness. The Board finds this opinion most probative against a finding that the Veteran's residuals of surgery, the left side of his neck, to include, headaches, dizziness and blurred vision were incurred in service or within one year of leaving service. The neurologist provided a well-reasoned rationale for his conclusions. He noted that the Veteran's headaches, dizziness, and blurred vision are unlikely from the drainage of a left lateral pharyngeal abscess that he underwent in January 1975. Significantly, he concluded that the Veteran had a successful drainage of the left lateral pharyngeal abscess and had been treated with appropriate antibiotics and a full uncomplicated recovery was documented, showing no complications. Further, the neurologist noted that the Veteran did not have any traumatic brain injury/concussion/cervical spinal injury due to his uncomplicated pharyngeal abscess drainage. The Veteran's representative has argued that the August 2017 VHA medical opinion "is speculative and completely inadequate" for the neurologist opined the Veteran's residual symptoms are more likely due to a motor vehicle accident in February 2013. While the Board agrees that this section of the opinion addressing the motor vehicle accident is inadequate, the neurologist in the previous sections and rationale explained that based upon the evidence of record, the in-service surgical drainage of the left pharyngeal abscess in 1975, could not have caused the Veteran's ongoing headaches, dizziness and/or blurred vision. Therefore, the Board finds that this August 2017 VHA opinion is adequate except for the section where the neurologist commented that: "This motor vehicle accident could have caused him to have either a concussion/or whiplash injury of the neck which in turn could have caused him to have either post-concussive headaches or chronic tension headaches. Therefore, it is more likely that his headaches, blurred vision, and dizziness are related to this particular incident rather than the drainage of the lateral pharyngeal abscess." Ardison, 6 Vet. App. 405, 407 (1994). The Board finds that service connection for a neck-related disability, to include residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, to include headaches, blurred vision, and dizziness must be denied. The Veteran's STRs show a diagnosis of lateral pharyngeal abscess, left, due to enterococci and staph aureus. However, they also show that the medication was switched and the swelling "greatly decreased." The Veteran's STRs do not show any other post-operative complications. Further, a statement of medical condition dated in late February 1975 indicated there was no change in the Veteran's medical condition since the prior examination in January. Additionally, the probative evidence of record is absent of post-service complaints of a for a neck-related disability, to include residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, to include headaches, blurred vision, and dizziness, until November 2007 and 32 years after the Veteran's active service concluded. Moreover, post-service treatment notes dated in February 2010, when the Veteran visited with complaints of headaches indicate that his headaches were related to his "chronic use of opioids." The attending neurologist counseled the Veteran that his "chronic use of opioids often causes rebound headaches and it takes about 3 months for the endorphin system to recover from the use of chronic opioids and that the headaches may persist over this period." The Veteran was released from active duty in February 1975, and a statement of medical condition dated in late February 1975 establishes that there was no change in the Veteran's medical condition since the prior examination in January. The post-service treatment records note that the Veteran was first seen by his private physician in November 2007 for complaints of headaches and neck pain which he accounted to residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, while in service. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran asserts that his neck-related disability, to include residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, to include headaches, blurred vision, and dizziness was incurred in service. Additionally, he asserts that his neck-related disability continued and worsened after service. Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Lay persons are competent to provide opinions on some medical issues. Id. at 435. However, the specific issue, in this case, determining the etiology of his neck-related disability, falls outside the realm of common knowledge of a lay person. Jandreau, 492 F. 3d at 1377 n.4. Such a determination requires medical inquiry into the biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran who in this case, has not been shown by the evidence of record to have the training, experience, or skills to make such a determination. To the extent that he asserts continuity of symptomology, the record contradicts this theory. The probative evidence of record does not show any complaints, treatment or diagnosis of a neck-related disability until November 2007 approximately 32 years after the end of his active duty. Thus, the Veteran's opinion is not probative. Additionally, his assertions were investigated by a competent neurologist, who determined that his disability was not due to service or the drainage of the lateral pharyngeal abscess of the neck, therein. The findings of the neurologist in the August 2017 VHA opinion are more probative than the lay evidence. Therefore, the preponderance of the evidence is against a finding that the Veteran's neck-related disability, to include residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, to include headaches, blurred vision, and dizziness was incurred in or a result of service or manifested within one year of service. 38 C.F.R. § 3.309(a), 3.307(a)(3), 3.309(a). The benefit of the doubt rule is not applicable. 38 U.S.C.A § 5107 (b); Gilbert, 1 Vet. App. at 55-57 (1990). Service connection for a neck-related disability, to include residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, to include headaches, blurred vision, and dizziness is denied. ORDER Service connection for a neck-related disability, to include residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, to include headaches, blurred vision, and dizziness is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs