Citation Nr: 18150862 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-05 721A DATE: November 16, 2018 ORDER Entitlement to service connection for a cervical spine disability, to include arthritis and degenerative disc disease, is denied. FINDING OF FACT The cervical spine disability did not have its onset during active service, arthritis was not manifested within one year of service discharge, and the cervical spine disability is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability, to include arthritis and degenerative disc disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from November 1985 to February 1997 in the United States Marine Corps. This appeal comes before the Board of Veterans’ Appeals (Board) from a November 2013 Rating Decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Waco, Texas. Entitlement to service connection for a cervical spine disability I. Legal Criteria Establishing direct service connection generally requires (1) a current disability; (2) an in-service occurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a). Certain chronic diseases, such as arthritis, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they manifested a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and arthritis became manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The disease need not be diagnosed within a presumptive period, it must be shown by acceptable medical or lay evidence, that there were characteristics manifestations of the disease to the required degree during that time. 38 C.F.R. § 3.307. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. The U.S. Court of Appeals for Veterans Claims (Court) has held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lay evidence, if competent and credible, may establish a nexus in certain circumstances. When considering whether lay evidence may be 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. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). II. Analysis The Veteran asserts that he is entitled to compensation for a cervical spine disability due to a motor vehicle accident he experienced in 1995 as a Marine Corps recruiter. In his February 2018 Statement in Support of Claim, he alleges that the RO impermissibly ignored his lay statement, his buddy statement from a fellow Marine Corps recruiter, and two medical opinions from private physicians who opined that the Veteran’s cervical spine disability was connected to service. He states that service connection is warranted for the cervical spine disability. The question for the Board is whether the Veteran has a current disability that began during service or 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 cervical spine disability, and the record shows that the 1995 motor vehicle accident occurred in Texas while the Veteran served as a recruiter, the preponderance of the evidence weighs against finding that the cervical spine disability began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show that the Veteran has been diagnosed with a cervical spine disability, which has been characterized differently over the years, but the Veteran has diagnoses of arthritis and degenerative disc disease. Thus, the Veteran meets the criteria of a current disability. As to an in-service disease or injury, the evidence in the file substantiates that the Veteran was in a motor vehicle accident in April 1995. The Veteran has claimed that he hit his head on the steering wheel and that the airbag deployed and caused him to jerk his head back so that it hit the seat, and that he was knocked out for six to eight minutes. In a December 2015 document, he wrote that both his airbag and the passenger’s (A.B.) airbag deployed. He wrote that after a couple of days, he noticed soreness in his neck and tremendous ringing in his ears. He also wrote that when asked at his exit examination in 1997 of whether he had any back problems, he did not realize that the back included his neck and that no one asked about his neck. While the evidence shows that the Veteran had a motor vehicle accident in April 1995, the Board finds that the Veteran’s post-service description of what happened at that time is not credible. For example, of record is the police report that was completed on the same day of the accident. When asked if the airbag had deployed, the investigator answered “Yes” for the driver (the Veteran) and “No” for the passenger (A.B.). When asked for the injury code, the investigator wrote “N” for the driver (the Veteran), which is “Not Injured.” For the “Code for Injury Severity,” the options are K = killed; A = incapacitating injury; B = non incapacitating injury; C = possible injury; and N = not injured. If the Veteran had hit his head on the steering wheel, been knocked out, and/or hit the back of his head on the head rest, as he has alleged, then the Board finds that the investigator would likely have documented that fact in this report when responding to the “Injury Code.” For example, the injury code for the Veteran could have been “C,” which is a possible injury, but the investigator wrote “N,” which is not injured and which was likely based upon the Veteran reporting to the investigator that he was not injured. The Veteran’s allegation of A.B.’s airbag being deployed is also not accurate, as documented in the report. The Board accords high probative value to this report because it was completed on the same day of the accident, which makes the documented findings highly credible. Additionally, this April 1995 report by the investigator is consistent with the Veteran’s November 1996 Report of Medical History that he completed at that time. For example, the Veteran denied a history of swollen or painful joints; a head injury; arthritis, rheumatism, or bursitis; bone, joint, or other deformity; and periods of unconsciousness. He checked “Yes” to a history of broken bones, painful or trick shoulder or elbow, trick or locked knee, and foot trouble. Those positive reports were related to a fracture of the fifth metacarpal bones, a rotator cuff injury, anterior cruciate ligament reconstruction in his right knee, and paresthesia of the foot, respectively. When asked if he had had any illness or injury other than those already noted on the form, the Veteran checked, “No.” On the form, it asks for a statement of examinee’s present health and medication currently used, and the Veteran wrote he was having problems with his right knee, calf, and foot after knee surgery and that he had “no other problems,” except he noted he had been seen for viral flu for build-up in his ear. Thus, in the November 1996 Report of Medical History, the Veteran reported multiple musculoskeletal complaints involving his shoulder, hand, knee, and foot, and the Board finds that had the Veteran been experiencing neck pain from the 1995 motor vehicle accident, that he would have documented it in this report. He claims he sustained a head injury and lost consciousness, but he denied both of those facts in the Report of Medical History. While the questions in the report did not specifically ask the Veteran whether he had neck pain, there are multiple descriptions of symptoms, where he could have documented experiencing neck pain if he was, in fact, experiencing such pain. For example, he was asked about whether he had a history of swollen or painful joints; a head injury; arthritis, rheumatism, or bursitis; bone, joint, or other deformity; and periods of unconsciousness. He was specifically asked about having an illness or injury that was not already documented in the report, and he checked “No.” There are hundreds of pages of service treatment records with multiple medical complaints, including multiple musculoskeletal complaints, and they do not document neck pain from a motor vehicle accident. There are nine medical issues documented in the notes section of the November 1996 Report of Medical History, and none of them relate to the Veteran’s neck or cervical spine. When asked to provide a statement of his present health, the Veteran documented three complaints, which did not include neck or cervical spine pain, and he added that he had “No other problems.” Additionally, a clinical evaluation of the Veteran’s head, face, neck, and scalp performed in November 1996 was normal, as was the clinical evaluation of the spine and other musculoskeletal system. The examiner made abnormal findings in the November 1996 Report of Medical Examination, but did not include an abnormal finding pertaining to the Veteran’s neck or cervical spine. The reason the November 1996 Report of Medical History is consistent with the April 1995 motor vehicle accident report is that the Veteran did not document any injuries and specifically denied a history of a head injury and denied periods of unconsciousness. Thus, the denial of symptoms the Veteran now claims happened at the time of the 1995 motor vehicle accident is consistent with the “not injured” report in the April 1995 motor vehicle accident report. The Veteran completed the November 1996 Report of Medical History contemporaneously with his service, and the Board finds no reason to question the accuracy of what the Veteran documented in that report. For these reasons, the Board finds as fact that the Veteran did not sustain the neck injury he now claims he did at the time of the April 1995 motor vehicle accident and that his allegations of this injury and subsequent neck pain as a result of the accident are not credible. The Board is aware that A.B. submitted a statement, wherein he described the accident as causing the Veteran’s airbag to deploy, the Veteran getting hit in the face with the airbag and knocking his glasses off, and having his head firmly planted into the head rest, which he wrote upset the Veteran greatly and that since the accident, the Veteran’s neck had not been the same. The Board does not find that A.B.’s description of the accident is credible and finds that the April 1995 accident report completed on the same day as the accident is more probative as to what happened at the time of the April 1995 accident, which is that the Veteran did not sustain an injury at that time. The Veteran had claimed that A.B. had stated he (the Veteran) was “out” for a good six to eight minutes and that A.B.’s airbag had also deployed, but the April 1995 accident report documented that A.B.’s airbag was not deployed, and A.B.’s written submission did not document that the Veteran was “out” or unconscious. For all the reasons described above, the Board finds that the Veteran’s description of what happened at the time of the April 1995 motor vehicle accident, wherein he claimed he sustained a neck injury and was unconscious, and his allegation of chronic neck pain following the accident are not credible, and therefore, the Board finds as fact that an in-service disease or injury to the neck or cervical spine is not shown, nor is continuing neck pain following the motor vehicle accident. A September 2003 VA treatment record shows that the Veteran was seen with neck, right knee, and foot pain, and that he reported that his neck had been burning for three months, which tends to show that his neck pain began bothering him in approximately June 2003, which is approximately six years following service. The record contains conflicting medical opinions regarding whether the Veteran’s neck or cervical spine disability is at least as likely as not related to an in-service injury, event, or disease, including the motor vehicle accident. In a February 2018 Statement in Support of Claim, the Veteran, through his attorney, contends that the RO impermissibly ignored the two private medical opinions and lay and buddy statements in the record. The private opinions were made based on the examiners accepting the Veteran’s history of a neck or cervical spine injury in service. As explained in detail above, the Veteran’s report of an in-service neck injury at the time of the April 1995 motor vehicle accident is not credible, and any medical opinion based on an inaccurate factual premise has no probative value. In a December 2012 examination, the VA examiner concluded that it was less likely than not that the diagnosed degenerative arthritis of the cervical spine or the left upper extremity radiculopathy was proximately due to the claimed in-service injury. The examiner reasoned that based on the diagnosis of degenerative joint disease with a multi-disk pathology and cord compression it would not be unlikely to have the symptoms noted by the Veteran. The examiner also noted medical care was not pursued until six years after service discharge. In a subsequent January 2018 examination, the VA examiner, in reviewing the Veteran’s medical records without an in-person examination, concluded that the Veteran’s cervical spine disability was not related to service. The examiner based his opinion upon the fact that no objective medical record evidence indicated that any cervical condition from a motor vehicle accident during service that did not resolve without residual effects. The examiner noted that the Veteran’s spine was marked normal and no cervical condition was diagnosed by the provider in DoD PEB Report of Medical Examination dated 11/19/1996 indicating no cervical pain/condition/pathology at the time of separation. The examiner also noted that no immediate objective post service medical record evidence to indicate treatment for a cervical condition existed in the file. The imaging diagnoses were not found in service. The examiner stated in his opinion that the diffuse imaging findings were classic for the natural aging factor rather than for remote acute trauma. The Veteran’s greatest risk factor, the examiner concluded, was his age. Thus, the VA examiner’s opinion is more probative than the Veteran’s private opinions because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Both VA medical opinions are based on the history that the Board finds is accurate—that the Veteran did not injure his neck in the April 1995 motor vehicle accident. The examiners provided rationales for their conclusions, and the Board accords their conclusions high probative value. The Veteran has asserted that the 2018 VA examination was inadequate because the VA examiner ignored his lay statements concerning the motor vehicle accident. As stated above, the Board does not accept the Veteran’s history of a neck injury at the time of the April 1995 motor vehicle accident, and thus finds that the 2018 VA examiner was correct in basing his opinion on what the service treatment records show, which is that the Veteran did not report having injured his neck or cervical spine in service. Further, the Board does not give the Veteran’s submitted private medical opinions any probative value since they are based on an inaccurate factual history that the Veteran sustained a neck or cervical spine injury in service. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the grant of service connection for a cervical spine disability, to include arthritis and degenerative disc disease. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where there is not an approximate balance of positive and negative evidence on any previously mentioned theory of entitlement. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. H. Vasil, Associate Counsel