Citation Nr: 1807365 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 10-37 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a neck disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to December 1979 in the United States Marine Corps. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In January 2011, the Veteran testified at a Board videoconference hearing before the undersigned Veterans law Judge. A transcript of that hearing is associated with the record. In August 2013, October 2014 and June 2017, the Board remanded the case for additional development. The Board finds that Agency of Original Jurisdiction (AOJ) has substantially complied with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In an October 2017 rating decision, the RO denied service connection for an eye condition because new and material evidence had not been submitted. That same month, the Veteran submitted a notice of disagreement (NOD) with respect to this decision. The RO has not issued a statement to the case with respect to this matter. However, the electronic Veterans Appeals Control and Locator System (VACOLS) also noted receipt of the NOD as to this claim. As VACOLS indicates additional action is pending at the RO, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable at this time. FINDING OF FACT A neck disability is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 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). Analysis The Veteran is seeking service connection for a neck disability. At the January 2011 Board hearing, the Veteran testified that he felt a "click" or "pop, like a fingernail pop" in his neck while running drills in the military and was treated at a hospital with ointment, given light duty for a day or two, and told not to run. The Veteran stated that he had neck problems a few more times while in service and neck pain since 1977 or 1978, with varying levels of pain ever since. The Veteran noted his private physician, Dr. J.D. told him that "by the condition of [his] neck, it had been a long-term problem," prior to his 2008 surgery. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, as arthritis is a disease enumerated under 38 C.F.R. § 3.309(a), service connection may be established based on a showing of continuity of symptomatology. Service treatment records are negative for complaints or treatment of neck pain. Importantly, an October 1979 discharge examination showed that the neck and spine were clinically evaluated as normal. Post-service clinical records dated in 1980 and 1981, while documenting low back pain, are silent with respect to any reports of neck pain. The first medical evidence of complaints of neck pain is a December 1984 VA clinical record that noted the Veteran was in a motor vehicle accident the day before. The diagnosis was whiplash. A contemporaneous x-ray of the cervical spine was normal. Following the accident, there is no medical documentation of a cervical spine disorder for many years until approximately 2005. At that time, a diagnosis of spinal stenosis in the cervical region is noted. Subsequently, an October 2007 VA radiograph report gave an impression of degenerative disc changes with central canal and neural foraminal stenosis at C5-C6 and C6-C7, and mild neurologic impingement bilaterally at the C4-C5 disc space. Follow up clinical records continue to show complaints of neck pain and treatment for the Veteran's neck disorder. Private treatment records dating from April 2008 to July 2008 from Dr. J.D. indicate the Veteran had diagnoses of cervical radiculopathy and spondylosis prior to a C5 -C6 and C6-C7 anterior cervical discectomy and fusion. The April 2008 record noted that the Veteran had a 20 year history of intermittent neck pain, with a significant increase since October 2007. The Veteran was afforded a VA examination in September 2013. Following a thorough physical examination of the Veteran, the VA examiner opined that the Veteran's neck disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness because no record was found of a cervical spine condition during his period of active service. In October 2013, the Board remanded this matter because the September 2013 VA examiner had failed to provide an adequately supported rationale for the opinion. Specifically, the VA examiner failed to comment on the Veteran's January 2011 Board testimony. In October 2015, the Veteran was afforded another VA examination. Here, the Veteran reported a similar account of when and how his neck pain began. He stated he injured his neck while running during active duty and felt a "twinge...which was very painful." He told her that he went to the clinic and was "given two pills, a lotion to apply, and light duty for a couple of days." After this initial visit for his neck, the Veteran reported going back to sick bay a couple of times for his neck pain and received the same treatment. Although he complained about his neck around five to six times, his neck pain continued until he underwent a spinal fusion in 2008 which relieved his "pain to a great degree." After a review of the record and following a thorough examination, the examiner opined that the Veteran's neck disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, because there was no mention of a cervical spine condition until July 2008. An addendum opinion was done in November 2016. The examiner stated that she had done another extensive look into the Veteran's service treatment records and medical evaluations, including those conducted after he had been discharged. She noted that the Veteran's October 1979 discharge physical was specifically negative for spine or musculoskeletal abnormalities. The examiner also reviewed a medical evaluation from December 1984 where the Veteran reported being a passenger in a motor vehicle accident. The Veteran reported enduring right sided neck pain, and he was prescribed topical heat and Motrin for his whiplash. It is also noted that an x-ray found he was negative for pathology, and his normal cervical spine had good alignment. The examiner opined that the Veteran's neck disability is "more likely due to events, employment activities, and/or aging and overall health status, subsequent to events in military." However, although directed to address the Veteran's January 2011 hearing testimony, the examiner did not. Subsequently, despite clear medical evidence to the contrary, in a November 2016 statement, the Veteran claimed that he was not in a car accident in 1984. The Board previously found that the October 2015 opinion with the November 2016 addendum opinion were inadequate because again, the examiner did not explicitly address the Veteran's lay statements from his January 2011 hearing. As such, the Board again remanded the claim for an addendum opinion. Another opinion was done in August 2017. The examiner again found that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner observed that as previously stated, service records are silent for claims of neck pain during active duty. If the Veteran did experience symptoms during active duty, there is no documentation to support it, and there is documentation to support report of "neck pain" due to a motor vehicle accident post-service. Note is made of the report of the Veteran reporting a click or pop while running drills in the military and was treated with "ointment and given light duty for a day or two." Again, there is no documentation to support this event and the documented treatment would be for a strain or sprain type injury, if present. As previously stated, strain and sprain events can be expected to resolve with only palliative treatment in weeks to months without further complication in the majority of cases. Based on information reported in collaboration with other medical professionals, not all sprains or strains progress to degenerative conditions - that is, in the absence of further injury. It is again noted that the Veteran reported neck pain as a result of a motor vehicle accident post-service. X-rays were again noted to be negative for pathology, further indicating a strain or sprain type injury. The examiner continued that cervical spine injuries such as suspected vertebral fractures and/or disc disease are considered to be more acute due to the nerves involved at the cervical spine level and the bodily functions which they support, such as respiration. In light of that, suspicion of such a type of injury would trigger much more aggressive evaluation and/or treatment than topical ointment or light duty. The examiner did not see evidence of this treatment. Report that the Veteran's neck condition "was a longstanding problem" is a rather empty statement in that degenerative disease of any joint or spine area, in the absence of acute injury, does not occur rapidly and can have months to years in onset and development. It is stated again that if the Veteran did experience neck pain in 1977 or 1978, there is no documentation to support it, and it is again stated that all strain or sprain conditions do not progress to degeneration of spinal discs. It is more likely that any degeneration which the Veteran developed was at least as likely as not due to events subsequent to active duty more than 30 years remote. It is again stated that after diligent review of the Veteran's record, medical collaboration, examiner's experience and preponderance of evidence that the Veteran's assertions from his January 2011 hearing are less likely than not related to a neck condition which is due to active duty. Again, this is in no way intended to downplay the Veteran's report of his condition, but service connection for the neck condition cannot reasonably be supported medically Based on the evidence of record, the Board must find that service connection for a neck disability is not warranted. Initially, the Board observes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the instant case, the Veteran is competent to report injuries and/or symptoms in service as well as pertinent symptomatology since service. However, he is not competent to directly link any current disability to service as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion is nonprobative evidence. See Davidson, supra; Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board recognizes that the Veteran has reported experiencing a click" or "pop, like a fingernail pop" in his neck while running drills in the military. Although there is no documentation of such incident in the service records, the Board has no reason to doubt that the incident occurred as it is consistent with the circumstances of the Veteran's service. Nevertheless, the Board finds that the Veteran's current assertions of pertinent symptoms since service to not be credible. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In the instant case, the Board finds that such statements are not credible as they are outweighed by the remainder of the evidence of record and were made under circumstances indicating bias or interest. The Board notes that there was no diagnosis of a chronic neck disability in service. Moreover, the Veteran's discharge examination shows that the neck and spine were clinically evaluated as normal with no diagnosis of a neck disorder. Furthermore, importantly, although documenting other unrelated disorders, post service medical evidence is silent with respect to any neck pain until 1984, approximately five years after his discharge from service, following a motor vehicle accident. At this time, the Veteran gave no history of his neck pain dating back to service, but rather indicated experiencing pain following the accident. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Again, x-rays of the cervical spine at that time were normal. The Board also finds it significant that the Veteran expressly denied being involved in a motor vehicle accident despite clear medical evidence to the contrary. Moreover, there are no further complaints of neck pain until approximately 20 years after the motor vehicle accident. In sum, the Veteran's current statements, made in connection with his pending claim for VA benefits, that he has experienced continuous symptoms since service are inconsistent with the contemporaneous evidence. The Board is cognizant that, while the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a claimant's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Board, however, finds in the instant case that the combination of the lack of finding of a neck disorder in service, the denial by the Veteran of the documented post service motor vehicle accident and the lack of medical evidence for many years after service persuasive evidence against his claim. Accordingly, while his contentions have been carefully considered, his statements are outweighed by the remaining evidence of record. Significantly, after reviewing the record, the highly probative August 2017 VA opinion found that the Veteran's current neck disorder was not related to service and provided a detailed rationale for such finding. In this regard, although noting that there was no evidence to support the Veteran's contention of any neck injury in service, she addressed his contentions and noted that the type of injury as well as treatment described by Veteran would be considered a strain or sprain. This finding was further supported by the negative x-ray five years later. She continued that all strain or sprain conditions do not progress to degeneration of spinal discs and it is more likely that any degeneration which the Veteran developed was at least as likely as not due to events subsequent to active duty more than 30 years remote. She also noted that the private examiner's statement that the Veteran's neck disorder was a longstanding problem was a rather empty statement in that degenerative disease of any joint or spine area, in the absence of acute injury, does not occur rapidly and can have months to years in onset and development. In sum even considering the Veteran's statements of injuring his neck in service, the examiner still found that his current neck disability was not related to such injury. Importantly, there is no medical evidence of record to refute this opinion. Moreover, there is no competent medical evidence of arthritis within one year of service so the service incurrence of arthritis may not be presumed. See 38 C.F.R. §§ 3.307, 3.309. Again, a December 1984 x-ray, five years after service, showed a normal cervical spine. Likewise, as discussed above, there is no credible lay evidence and/or competent medical evidence of pertinent symptoms since service. See Walker, cited above. As such, service connection cannot be established based on continuity of symptomatology. The Board also points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In conclusion, based on the analysis above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for a neck disability. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for a neck disability is denied. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs