Citation Nr: 1807884	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  14-27 695	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for a neck disability.


REPRESENTATION

Veteran represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Keninger, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1960 to December 1970.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The Veteran testified at a videoconference hearing before the undersigned Veteran's Law Judge in August 2017. A transcript of the hearing was prepared and associated with the claims file.

A Statement of the Case (SSOC) was issued by the RO in July 2014.


FINDING OF FACT

The Veteran's neck disability is not shown to have had its onset in service, was not manifested to a compensable degree within one year of service discharge, and is not otherwise related to service.


CONCLUSION OF LAW

The Veteran's neck disability was not incurred in or aggravated by service and is not presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).







REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist
(a) Duty to Notify

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a Veteran in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the Veteran is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b).

The VCAA duty to notify initially was satisfied by way of a pre-adjudicatory letter the RO sent to the Veteran in November 2012. The letter informed the Veteran of the evidence required to substantiate his claim and of the respective responsibilities in obtaining this supporting evidence, including advising of how disability ratings and effective dates are assigned. The claim was last adjudicated by way of a July 2014 SOC. Thus, the Veteran has received all required notice concerning the claim.

(b) Duty to Assist

VA also has a duty to assist a Veteran in the development of a claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent post-service treatment records (VA and private) and providing an examination when needed to assist in deciding the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished.

The Board acknowledges that at his hearing testimony in August 2017, the Veteran reported he was treated by a private physician in the 1970s immediately following his discharge from service. These records are not a part of the claims file, and it does not appear an attempt has been made to obtain these records. However, as noted below, even if the Veteran did suffer a neck injury in service, the injury would be due to the Veteran's willful misconduct, and therefore, service connection would not be available. As such, additional medical records showing that the Veteran did have a neck disability within one year of service would not assist the Veteran in establishing service connection for a neck disability.

For the above reasons, no further assistance to the Veteran is required. 38 C.F.R. § 3.159(c).

II. Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009).

In this case, the disorder at issue is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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).

Additionally, where a Veteran served 90 days or more of active service, and certain chronic diseases, such as [  ], become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in 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(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id.

The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report to the onset and continuity of his symptomatology. Id. at 438. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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. See Kahana, 24 Vet. App. at 433, n. 4.

A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).

The Veteran was diagnosed with cervical spondylosis and osteophytic fusion by September 2012, meeting the first requirement of service connection, which is evidence of a current disability. The Veteran contends that he has pain on the right side of his neck that radiates into his back and right shoulder, and private treatment records indicate that the Veteran was seeking treatment for neck pain since at least August 2012.

The Veteran testified that while serving in Vietnam, he and a fellow service member were drinking one evening. In a November 2012 statement submitted by the Veteran, he described his condition and the condition of his fellow service member at the time as "pretty well plastered." The Veteran reported that his fellow service member wandered off and came back with a vehicle. He later learned that the vehicle was the "Captain's jeep." The Veteran got into the vehicle, and the fellow service member began to speed off, ultimately crashing into a pole and they were both thrown from the vehicle. The Veteran reports that he had scrapes and bruises, a bloody nose and lip, and a headache with a knot on his head as a result of the accident. After the accident, he reported that his neck was stiff and he had tingling in his fingers, but the Veteran indicated that he did not go to sick call to report these injuries. Instead, they fixed the vehicle and returned it so the Captain would not notice it was missing.

In September 2013, a Buddy Statement was submitted by B.T. who observed the accident the Veteran reported occurred in service. B.T. indicated that he saw the Veteran and the driver be thrown from the vehicle. He reported that the Veteran was holding his head and neck after the accident and appeared to be pretty "banged up."

The Veteran's service treatment records (STRs) indicate that at his separation examination in December 1970, a clinical evaluation of the Veteran reported no abnormalities in the Veteran's neck, back, or shoulder. The Veteran handwrote, "I feel good" on his separation examination. The Veteran's STRs and personnel records do not indicate any evidence of a motor vehicle accident or any complaints of neck, shoulder, or back pain.

The Board finds the Veteran's STRs to be more probative of his physical state during service and at the time of discharge than the Veteran's testimony, despite the Veteran's competence to report pain, as these documents were created contemporaneously with the Veteran's discharge from service and physical state at the time. Additionally, the Board finds that had an accident occurred in service of the extent described by the Veteran, these notations would likely be included in the Veteran's personnel records. 

Further, when the Veteran first sought primary care at VA in May 2011, more than 30 years following service discharge and prior to filing a claim for service connection for his neck disability, when reporting his medical history, the Veteran reported an incident in which he fell off a horse and broke his leg at age 13. He reported he had a compound fracture, had surgery, had a small scar on the back of his leg below his knee, and that he would get occasional knee pain. The Veteran has alleged that he has had chronic neck pain since the in-service jeep accident, yet the May 2011 VA treatment record showed no documentation of an accident where he was thrown from a jeep in service and injured his neck, which the Board finds is indicative of the incident not happening. Clearly the Veteran was reporting his past medical history, wherein he reported details of the incident that occurred when he was 13 years old, which makes sense because the knee continued to bother him over the years, as documented in the treatment record. The allegation of a serious in-service injury where he was thrown from a jeep and claimed to have chronic neck pain since that time would likely have been documented when discussing his past medical history. Thus, his failure to report the in-service jeep accident that he has alleged had caused chronic neck pain for the past 30 years further supports the Board's finding that such incident did not happen. 

Finally, when doing a review of systems on that day, as to the musculoskeletal system, the examiner wrote, "Occasional knee pain - does not like to use med[ication]s, uses brace." There was no documentation of neck pain. This is consistent with the Veteran's past medical history and the Board's conclusion that the Veteran was not experiencing chronic neck pain since service. 

Additionally, the Board notes that no compensation shall be paid if a disability is the result of a Veteran's own willful misconduct, including the abuse of alcohol. See 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301(b); see also VAOPGPREC 2-97. The Veteran himself admitted that he and his fellow service member were "pretty well plastered" at the time of the accident that he contends was the cause of his neck disability. The Board finds that even if the Veteran was in a motor vehicle accident in service, the Veteran's willful misconduct was the proximate cause of that accident, and therefore, service connection is not available for the Veteran's neck disability.

The Board acknowledges the positive medical opinion submitted by private physician in September 2013, which opines that the Veteran's current neck disability is more likely than not related to a vehicle accident occurring while the Veteran was serving in Vietnam. However, these medical opinions are based on the assumption that the Veteran was in an accident that occurred in service and only serve to establish a medical nexus between an assumed in-service incident and the Veteran's current disability-the third requirement of service connection. The Board has found, as noted above, that the Veteran has not met the second requirement-an in-service incurrence of a neck disability that was not the result of his own willful misconduct. Thus, this positive opinion is based on an inaccurate factual history.

The Board also acknowledges that cervical spondylosis is a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.309(b) based on chronic in-service symptoms and continuous post-service symptoms apply. Walker, 708 F.3d at 1331. However, again, the Veteran contends that the symptoms that continued immediately since service were the result of the motor vehicle accident described above, and as such, service connection based on any continuity of the symptomatology in the years since service is also denied for the reasons noted above.

Absent an incident or injury in service that caused or aggravated the Veteran's current neck disability that was not proximately caused by the Veteran's own willful misconduct, service connection must be denied. 

In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the claim must be denied.


ORDER

Entitlement to service connection for a neck disability is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs