Citation Nr: 18148447 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-36 037 DATE: November 7, 2018 ORDER Entitlement to service connection for cervical spine disability to include cervical brachial plexus syndrome is denied. FINDING OF FACT A cervical spine disability to include cervical brachial plexus syndrome was not demonstrated in service, such a disorder has not been shown to be related to service, and was not shown to be disabling to a compensable degree within a year of the Veteran’s separation from active duty. CONCLUSION OF LAW The criteria for service connection for cervical spine disability to include cervical brachial plexus syndrome have not been satisfied. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1994 to September 1997. This issue comes to the Board of Veterans Appeals (Board) from an October 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran filed a timely notice of disagreement and a timely Form 9. The Veteran’s notice of disagreement raises the issue of the cervical brachial plexus syndrome being associated with a neck condition. The Veteran filed a new claim for the neck issue and received a rating decision which was denied in May 2016. The issues are inextricably intertwined and have been combine here. A hearing was held before the undersigned Veterans Law Judge in September 2016. A copy of the hearing transcript has been associated with the file. Entitlement to service connection for a cervical spine disability to include cervical brachial plexus syndrome is denied. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service.38 U.S.C. §§ 1110, 1131;38 C.F.R.§ 3.303 (a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year   following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303 (b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances   for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). An award of service connection based solely on continuity of symptomatology only applies to the listed chronic disabilities in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   Analysis The Veteran seeks service connection for a cervical spine disability. The Veteran states that his cervical spine disability is related to a Humvee accident that occurred while in service and that his cervical brachial plexus syndrome is associated with his neck condition. A 2014 Compensation and Pension (C&P) exam found the Veteran had degenerative disc disease and cervical brachial plexus syndrome, although the examiner noted the MRI findings and normal EMG left the brachial plexus diagnosis in question. A 2016 C&P report shows that the Veteran had cervical arthritis. The Veteran further provided treatment records from his private physician, Dr. Kurtz, a Dr. Gregory Hoell, and from Clearwater Therapeutics Physical Therapy all indicative of a current disability. The Board finds that the Veteran has a present disability related to his cervical spine. The Veteran states that his cervical spine disability/cervical brachial plexus syndrome was caused by an in-service incident involving a Humvee accident while serving in Macedonia in May of 1997. The Veteran’s statement is supported by three letters from individuals who served with him in Macedonia and recall the Humvee accident. The Board accepts the Veteran’s statements regarding the Humvee accident as supported by the letters. The Veteran testified that he felt some pain after the accident, but sought no treatment. The Board accepts the Veteran’s testimony regarding pain at the time of the accident for establishing an in-service injury or event. The Veteran must finally show that there is a causal relation between an in-service event and the current disability. The Veteran indicated he was seen by a medic shortly after the incident, although there are no records, and proceeded to return to work. He further indicated there was soreness, but he thought he would get over it. The Veteran’s service treatment records from August 1997, just prior to his separation from service, do not show any finding regarding a neck problem or cervical brachial plexus syndrome, and indicate that the Veteran denied any   physical health problems. The Veteran testified that he continued to have problems following his separation from service and visited urgent care clinics after he left service in September 1997; these records were not provided. The first medical records provided by the Veteran were from Dr. Kurtz beginning in 2009. The Board finds there is insufficient evidence to show that the Veteran had the condition while in-service or immediately after service despite his lay testimony regarding his symptoms. The Board finds his testimony regarding the same to lack credibility due to the report of no physical problems around the time of his separation and the lack of any supporting medical records for an extended period thereafter. The Board considered the opinions of the Veteran’s private physician, Dr. Kurtz, and the 2016 VA examiner. The Veteran’s private physician believes the Humvee accident caused the Veteran’s current problems, however he does not offer a rationale to support this opinion. The 2016 VA examiner found there was no connection between the Veteran’s in-service incident and his cervical spine disability. The examiner noted that cervical arthritis is generally noted to start in people at age 30 and up and the Veteran fell in that age range. He indicated the Veteran fell in to that age range and there was not a clear-cut diagnosis in service or for over 10 years thereafter. Based upon this rationale, he found it less likely than not that the Veteran’s condition was caused by the Humvee accident or incurred in service. He reviewed the entire record of the Veteran and consulted relevant medical research relating to the diagnosis of cervical arthritis. The Board finds the VA examiners’ opinions to carry greater credibility in determining whether the Veteran’s disability is related to an in-service event or injury due to more reasoned analysis, extensive review of the Veteran’s records, and review of MRI and EMG results which weren’t available to Dr. Kurtz at the time his letter was written, and an alternative theory of causation. Regarding presumptive service connection under 38 C.F.R. § 3.309(a), the 2016 Compensation & Pension (C&P) report notes that the Veteran has cervical arthritis,   which would be compensable if found to be shown within one year of separation from service. The 2016 C&P report notes that neck pain is fairly common within the general population, with 10% of the population having neck pain at any one time. The examiner further opined that arthritis is noted to start in people aged 30 and up and the aging process is an important factor in developing arthritis and that the Veteran fell in this age range. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a current diagnosis related to service falls outside the realm of common knowledge of a lay person and therefore any reports of neck pain cannot be conclusively linked to the Veteran’s in-service event. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The testimony of neck pain by the Veteran are not sufficient to establish a service-connected disability that manifested within one year after service. The Board further finds the 2016 C&P medical opinion, which considered the Veteran’s reports of the in-service event, and which found that his current disability was less likely than not caused by the Humvee accident he testified to as bearing considerably greater weight as to the onset of his condition. In reviewing the Veteran’s claim. the Board considered whether there was a continuity of symptomatology pursuant 38 C.F.R. § 3.303(b). In reviewing the record, the Board notes that there was no report of the accident by the Veteran and the exam close to the end of service notes no health problems to satisfy a condition being noted in-service and no medical records submitted showing the condition being noted within the presumptive period. In other words, there is no showing of chronic disease in service because there is no evidence of a combination of manifestations referable to the neck and shoulders sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” The Veteran’s testimony regarding the Humvee accident, supported by three letters noting the same accident, and the pain he experienced immediately   afterward are noted, but the Board finds the credibility of contemporaneous reports of the examination at the end of the Veteran’s service to be more determinative a diagnosis in this regard. Regarding the continuity of symptomatology, the Veteran testified to consistent pain after service and reported being seen at urgent care clinics to support the second prong of continuity of symptomatology, but provided no medical records to support the claim or any type of diagnosis. Finally, in establishing a nexus towards the third prong, the Veteran’s private physician provided a letter linking the Humvee accident and the Veteran’s current condition. However, there was no rationale supporting the Veteran’s physician’s opinion or a current diagnosis provided within the letter. The private physician’s letter is directly contradicted by the 2016 C&P opinion, which gave a rationale as to the findings and which found it less likely than not that there was a nexus. The Board believes the findings of the VA examiner is more credible in denying a nexus based upon the rationale provided. It is noted that the Veteran has asserted that his brachial plexus syndrome is related to a neck condition, and he first raised by the Veteran in his Form 9 appeal to the Board regarding this condition. This was addressed in the 2014 C&P exam where the examiner found that the cervical brachial plexus syndrome was less likely as not caused or a result of an incident as described by the Veteran. In reaching this conclusion the medical examiner consulted and included in their rationale a review of medical literature which indicated that cervical brachial plexus syndrome generally has an acute onset at the time of the event and in rare cases with symptoms developing over 2-4 weeks. The symptoms include significant pain, numbness, and weakness in specific muscle groups. The examiner was not convinced that there would not have been significant symptoms at the time of the incident and noted the Veteran returning to work without time off in forming an opinion that the condition was not present in service.   The Board also considered the Veteran’s condition for presumptive service connection as an organic disease of the nervous system. As noted above there was no finding of the condition in service and the examiner found it unlikely that it occurred in service. The record does not support a finding that the Veteran had a brachial plexus condition within one year of separation from service. There is no indication that the Veteran’s reports of pain are connected to a cervical brachial plexus syndrome and as noted above the Board places greater weight on the findings of the 2014 examiner than the private letter submitted by the Veteran’s private physician. The reports of neck pain fall outside the 2-4-week range of symptoms manifesting that the examiner noted and therefore the Board finds it unlikely these complaints of pain were related to cervical brachial plexus syndrome and therefore the requirements for presumptive service connection have not been met. The preponderance of the evidence is against the Veteran’s claim and therefore the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Middleton, Associate Counsel