Citation Nr: 1808610 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 06-27 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). A Travel Board hearing was held in September 2007 before the undersigned Veterans Law Judge (VLJ). A copy of the transcript of that hearing is of record. In a May 2016 remand decision, the Board provided a detailed procedural history regarding this case which will not be repeated here. The claim was remanded for evidentiary development, to include obtaining a medical opinion regarding the Veteran's claim for a cervical spine disorder. The resulting examination report failed to provide an adequate medical opinion, and the Board remanded the claim once again in May 2017. The case has now been returned to the Board for further appellate consideration. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager (Virtual VA) paperless claims file associated with the Veteran's claim. FINDING OF FACT Inservice treatment in May 1966 following an automobile accident was primarily for mid and lower back complaints which were asymptomatic at the time of the service separation examination. Moreover, there were no cervical spine complaints recorded at the time of the accident or at the time of separation examination in June 1969. Post service diagnosis of cervical spine degenerative disc disorder (DDD) was not manifest until many years after service and is unrelated to service. CONCLUSION OF LAW A cervical spine disorder was not incurred or aggravated in active service, nor may cervical spine degenerative disc disease (DDD) be presumed to have been incurred or aggravated therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F3d. 1375, 1381 (Fed Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F3d. 1359, 1361 (Fed Cir. 2016) (applying Scott to a duty to assist argument). Service Connection - In General Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, certain chronic diseases (e.g., DDD) may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The chronicity provisions are applicable where evidence, regardless of its date, show that a veteran had a chronic condition, as defined in 38 C.F.R. § 3.309(a) (2017), in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2017). This rule does not mean that any manifestations in service will permit service connection. To show 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 entity is established, there is no requirement of evidentiary showing of continuity. 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) (2017). The United States Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a) (2012); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also 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). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Background It is the Veteran's claim that he injured his neck in an inservice automobile accident in 1966, and that he continues to experience chronic neck problems, diagnosed as DDD of the cervical spine. Review of the record does show that the Veteran was in an automobile accident in May 1966. His complaints at that time in the mid to lower back region (and ankles). At time of separation examination in June 1969, it was noted that his low back complaints were now asymptomatic. There continued to be no report of neck complaints or cervical spine diagnosis. Post service treatment records reflect back complaints in the early 2000s. His complaints included the neck area in approximately 2004. Chronic degenerative joint disease (DJD) of multiple joints to include the neck was diagnosed that year and subsequent treatment records show that the cervical spine condition continues to the present day. Also, a June 2004 medical statement was submitted to VA in support of the Veteran's claim. D.W.E., DO, stated that the Veteran had been in receipt of treatment since 1987 for several disabilities to include his cervical spine. The doctor stated that this was consistent with being caused in a car accident in 1966. As pointed out in previous decisions of record, however, attempts to obtain actual treatment records by this examiner were unsuccessful. The medical question to be answered is whether the Veteran's cervical spine disorder is related to his military service, to include the inservice automobile accident. The record reflects that while numerous examinations were conducted to answer this medical question, the resulting reports were found on more than one occasion to not adequately answer the question. Most recently, the Board remanded the case again in May 2017 to obtain the necessary medical opinion. In an August 2017 report conducted for VA, the medical examiner reviewed the claims file. The diagnoses were degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), and spinal stenosis. She opined that it was less likely than not (less than 50 percent probability) that the Veteran's cervical spine disorder was incurred in or caused by the claimed inservice automobile injury. She stated that his inservice condition was acute only. There was no evidence of chronicity of care. While the Veteran did sustain an injury in 1966, there was no documentation of continued care and treatment of any claimed cervical spine disorder, to include at time of separation examination. In fact, his lower back complaints were noted to be asymptomatic at that time, and no neck complaints were noted. She added that the three year gap between the accident and the separation examination would make it unlikely that he had any associated neck condition. Moreover, she added there was an 18 year gap in time from 1969 until 1987 before any association was made with treatment being provided to the Veteran as from the car accident. Thus, both back and neck diagnoses were rendered well after service. She concluded that she was unable to confirm that the Veteran's current cervical spine disorder was related to an inservice motor vehicle accident (MVA) without resorting to mere speculation. Analysis Despite a notation in May 1966 that the Veteran was injured in a MVA and that he reported mid and lower back trouble, he was found at his June 1969 separation examination to be asymptomatic relative to the low back. At that time, he denied rheumatism, as well as bone, joint or other deformity. He did report neck whiplash in April 1966. Examination of the neck at the separation examination was normal. Thus, a report of current neck complaints was not indicated at the time of service separation. As indicated above, there is report of ongoing neck problems from approximately 1987 and actual diagnosis of a chronic neck disorder in 2004 and therefrom. In terms of direct service connection, as the facts outlined above show, there simply is no inservice report of neck complaints until many years after service. At the time of the MVA, the Veteran reported trouble with his low back and ankles. Neck whiplash was not noted until the service separation examination and at that time he did not report any current neck complaints, merely a history of prior neck whiplash associated with an April 1966 auto accident. Moreover, a VA examiner has opined that it is less likely than not that current neck problems are related to active service, to include the MVA. She supported her conclusion by pointing out that a prolonged period of time had passed from the inservice injury before neck complaints and subsequently diagnosis of a chronic neck disorder were indicated. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 200) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). See also Mense v. Derwinski, 1 Vet. Ap. 354, 356 (1991) (affirming the Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance J. concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder. Even if the Board concedes that the Veteran had some neck symptoms at the time of the MVA, when he first noted whiplash several years later on separation examination, he reported no current complaints. In considering this claim under 38 C.F.R. § 3.303(b) (2017) for evidence of chronic DJD/DDD of the cervical spine or continuity of symptomatology, this has not been shown by the evidence of record. Rather, as noted above, the first post service record of cervical complaint and/or treatment is reported to be from 1987, approximately 18 years after service discharge and more than 20 years after the actual MVA. Accordingly, the weight of the evidence is against a chronic cervical spine disability since service or continuity of symptomatology after service. It follows that service connection under the provisions of 38 C.F.R. § 3.303(b) (2017) has not been established. Also, the fact that the Veteran was not found by evidence to have DDD/DJD of the cervical spine until many years after service does not support the grant of service connection under the provisions of 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017) for chronic disease presumptive service connection. With respect to establishing service connection under 38 C.F.R. § 3.303(d) (2017), the weight of evidence is against the claim. In this regard, an August 2017 examiner opined that the Veteran's cervical disability, diagnosed as DDD, was less likely as not caused by or a result of the inservice MVA or a continuation of alleged inservice neck pain. She said records showed no evidence of a neck condition for the remainder of the Veteran's military service or until 1987 when the private examiner noted that the Veteran received treatment at that time for various disorders, to include neck problems (although no actual treatment records were obtained). With respect to the Veteran's statements that he has a cervical spine disability related to a neck injury he sustained following an inservice MVA, he is certainly competent to testify as to an event and to his symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, even if the Veteran's etiological opinion is competent, the Board places more value on the medical opinion of the examiner in August 2017 who examined the Veteran, reviewed his claims file, and has the benefit of medical training. Based on the foregoing, the Board finds that the weight of evidence goes against the Veteran's claim of entitlement to service connection for a cervical spine disorder, diagnosed as DDD. That is, the weight of evidence is against a showing that the Veteran has a chronic cervical spine disorder or continuity of symptomatology since service or that his present DDD is related to service. Rather, his single documented treatment for pain in service was limited to the mid and lower back and any alleged neck complaints are shown to be acute and resolved. Thus, as the weight of evidence is against the claim, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107(b) (2012). ORDER Entitlement to service connection for a cervical spine disorder is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs