Citation Nr: 18145831 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 13-34 253 DATE: October 30, 2018 ORDER Entitlement to service connection for a neck disorder is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, personality disorder, and opioid addiction in remission, is remanded. FINDING OF FACT The Veteran’s neck disorder is not etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a neck disorder have not been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1977 to April 1980. In April 2018, the Board referred this case for a medical expert opinion regarding the etiology of the Veteran’s claimed psychiatric disorders. See VHA request, April 2018. The VHA was received by VA in July 2018. See VHA. In correspondence dated on September 21, 2018, the Veteran’s representative submitted additional argument. The representative stated that the Veteran did not waive RO consideration of the VHA opinion, and requested that the case be remanded to the RO for consideration of this new evidence in the first instance. See Medical Opinion Response Form, September 21, 2018. As such, the Board will remand the two issues on appeal which were the subject of the VHA. Service Connection 1. Neck Disorder The Veteran asserts that he experiences a neck disorder as a result of his active service. Specifically, he asserts that his neck disorder is related to the same incident as his service-connected migraines, a hatch falling on his head. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. 1110, 1131 (2012); 38 C.F.R. 3.303 (a) (2017). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). There is, however, no arthritis of the spine diagnosed in this case. Given such, The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of a neck disorder, the preponderance of the evidence weighs against finding that the Veteran’s neck disorder began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d) (2017). In sum, while the Veteran’s claim meets prong (1) a current disability, it fails at prongs (2) and (3), as there is no in-service occurrence and there is no nexus between the Veteran’s current neck disorder and his active service. The Veteran’s service treatment records (STRs) do not show a history of any neck complaints or neck-related issues in active service, and do not show any diagnoses or treatment for any neck disorders. The STRs show a complaint of a head injury when a hatch fell on his head in June 1978, but do not show any related neck-complaints. VA records relate that the Veteran’s head and neck were within normal limits. See VA treatment records, October 5, 2004; April 12, 2011. He complained of neck pain in August 2004, July 2005, March 2006, and March 2012. See VA treatment records, July 12, 2005; March 2, 2012; August 11, 2004; March 20, 2006. A January 2011 VA examiner noted that 2009 spine evaluation and X-rays showed that the Veteran’s spine was normal. See VA examination, January 10, 2011. The Veteran reported to a VA examiner that he injured his head and neck in 1978. See VA examination, April 2011. The Veteran fell backward, landed on his laptop, and hit the back of his head and neck. See VA treatment records, November 6, 2013. The treating physician noting that the Veteran had track marks on his neck, and the Veteran stated that he has injected heroin into his neck. See VA treatment records, June 24, 2014 and August 11, 2004. The Veteran’s post-service VA medical records show that X-rays dated April 13, 2011, documented moderate degenerative disease at C5-6. See VA treatment records, April 13, 2011. The Veteran was scheduled for a VA examination related to his neck disorder claim. He failed to report and to respond to VA inquiries. See examination request, January 2018. Based on a review of the evidence, the Board finds that service connection for a neck disorder is not warranted. In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of medical nexus. Although laypersons are competent to provide opinions on some medical issues, as to the specific issues in this case, diagnosing a neck disorder, this issue falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (laypersons not competent to diagnose cancer). As a layperson, the Veteran has not been shown to possess the medical expertise to diagnose a neck disorder and its etiology. The claims file does not contain any medical examinations linking his self-reported symptoms to his active service. In sum, there is no evidence, medical or otherwise, to support the Veteran’s statements. Thus, as previously stated, the medical evidence of record is against the Veteran’s service connection claim. Consequently, the Board gives more probative weight to the medical evidence in this case. Crucially, the evidence of record does not show that the Veteran’s neck disorder, which was diagnosed in 2011, is in any way related to his active service. It is important for the Veteran to understand that no medical professional has tied his neck disorder to his active service. The Board acknowledges that the Veteran has not been afforded a VA examination addressing his claimed neck disorder and its relationship to his active service. No such an examination is required, as the only evidence that the Veteran’s claimed disability is related to his military service are his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). In addition, as mentioned above, the Veteran was scheduled for an examination for which he did not show up. Furthermore, continuity of symptomatology, which is a means to satisfy the nexus component of service connection is not applicable, where there is no evidence that the Veteran had symptoms or a diagnosis of this disability. See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (only those chronic diseases listed in 38 C.F.R. § 3.309 are subject to service connection by continuity of symptoms described in § 3.303(b); 38 C.F.R. § 3.309(a) including “arthritis” as a chronic condition for which service connection may be established by continuity of symptoms). Also, the disability was diagnosed in 2011, thirty-one years after service and there is no evidence of any complaints of such until then. Accordingly, service connection for a neck disorder is not warranted because the Veteran has not satisfied the second and third requirements of service connection, i.e., an in-service incident and a nexus. See 38 C.F.R. § 3.303 (2017); see again Gilpin, 155 F.3d at 1353; Brammer, 3 Vet. App. at 225. In reaching the above conclusion, the Board has considered the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a neck disorder, that doctrine does not apply. 38 U.S.C. § 5107 (b) (2012). The claim of entitlement to service connection for a neck disorder is denied. REASONS FOR REMAND 1. PTSD The Veteran asserts that he experiences PTSD as a result of his active service. Specifically, he asserts that the 1978 motor vehicle accident caused him to experience PTSD. In April 2018, the Board referred the issue of entitlement to service connection for PTSD for a medical expert opinion regarding the etiology of the Veteran’s claimed psychiatric disorder. See VHA request, April 2018. The VHA was received by VA in July 2018. See VHA. In correspondence dated on September 21, 2018, the Veteran’s representative submitted additional argument. The representative stated that the Veteran did not waive RO consideration of the VHA opinion, and requested that the case be remanded to the RO for consideration of this new evidence in the first instance. See Medical Opinion Response Form, September 21, 2018. As such, the Board finds that the Veteran did not waive RO consideration of this evidence. Therefore, a remand is required for issuance of a supplemental statement of the case (SSOC) that reflects consideration of the July 2018 VHA opinion. Here, the Board notes that the last SSOC was issued in January 2018. In addition, any outstanding VA and private treatment records should be obtained. 2. Acquired Psychiatric Disorder The Veteran asserts that he experiences an acquired psychiatric disorder as a result of his active service. Specifically, he asserts that the 1978 motor vehicle accident caused him to experience an acquired psychiatric disorder. In the alternative, the Veteran argues that his preexisting psychiatric disorder was aggravated by his military service. In April 2018, the Board referred the issue of entitlement to service connection for an acquired psychiatric disorder for a medical expert opinion regarding the etiology of the Veteran’s claimed psychiatric disorder. See VHA request, April 2018. The VHA was received by VA in July 2018. See VHA. In correspondence dated on September 21, 2018, the Veteran’s representative submitted additional argument. The representative stated that the Veteran did not waive RO consideration of the VHA opinion, and requested that the case be remanded to the RO for consideration of this new evidence in the first instance. See Medical Opinion Response Form, September 21, 2018. As such, the Board finds that the Veteran did not waive RO consideration of this evidence. Therefore, a remand is required for issuance of an SSOC that reflects consideration of the July 2018 VHA opinion. Here, the Board notes that the last SSOC was issued in January 2018. In addition, any outstanding VA and private treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. Document all efforts to obtain those documents in the claims file. VA must exhaust all efforts to attempt to obtain said records. 2. Ask the Veteran to either provide any outstanding relevant private treatment records, or complete a release for any private providers; if any releases are returned, attempt to obtain the identified records. If any records requested are not ultimately obtained, notify the Veteran pursuant to 38 C.F.R. § 3.159 (e) (2017). 3. Then, readjudicate the claims on appeal, with consideration of the additional evidence associated with the claims file since the January 2018 SSOC, including the July 2018 VHA opinion. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel