Citation Nr: 1825982 Decision Date: 04/26/18 Archive Date: 05/07/18 DOCKET NO. 11-02 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a cervical strain. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel INTRODUCTION The Veteran served honorably in the U.S. Air Force from October 1986 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board previously considered and remanded this matter in August 2015 and again in September 2016. For the reasons described below, the Board is satisfied that there has been substantial compliance with the Board's remand directives and the claim has properly been returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). In correspondence from January 2017, the Veteran requested a hearing before a member of the Board. However, he withdrew this request in a written statement received in March 2018. FINDING OF FACT The Veteran's current cervical strain did not arise in and is not otherwise etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for a cervical strain have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Legal Standard Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). An appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Analysis The Veteran contends that current neck pain is related to the neck pain that was noted at the time of a physical evaluation upon his separation from active duty. In a November 2017 brief, the Veteran's representative argued that the Veteran's duties as a personnel programs officer while serving on active duty caused stress in his neck. The Board finds that there is persuasive and competent evidence of a current neck disability, as shown by the diagnosis at the November 2010 VA medical examination of a cervical strain. The Board also finds that there is sufficient competent, probative and credible evidence to show that the Veteran experienced an in-service injury or event. Namely, the record is clear that the Veteran performed administrative duties throughout his period of active duty service and his separation examination report included a notation of neck pain secondary to job-related stress. Accordingly, the Board will turn to the central question of whether the evidence shows that the Veteran's current cervical strain has any etiological relationship to his active duty service. In his September 2010 Notice Of Disagreement, the Veteran reported that he experienced the same neck pain that he had while in the military, although he indicated that the severity of the pain increased and decreased at times. At his November 2010 VA medical evaluation, the Veteran reportedly stated that his neck pain had been persistent since separating from the armed forces and fluctuated in severity. He stated that he self-treated the pain with over-the -counter medication. In his January 2011 VA Form 9, the Veteran again contended that it was his in-service administrative work that caused his current symptoms. The Board acknowledges that the Veteran is certainly permitted to report the observable symptoms of neck pain and to comment upon the history and severity of these symptoms. The Board also has no reason to doubt the credibility of these statements and they are therefore entitled to some degree of probative weight. However, the record does not contain any evidence that the Veteran possesses the knowledge, training, or experience to provide a competent opinion regarding the medically complex question of the etiology of his neck strain. To evaluate his claim, VA scheduled a medical examination in November 2010. The clinician who performed that examination reviewed the Veteran's service treatment records and noted that the Veteran had subjective reports of neck pain at his separation examination, but explained that the Veteran did not have medications, complications, or sequelae at that time. She also explained that the Veteran's service treatment records were otherwise silent for complaints of or treatment for neck pain or neck problems. Upon examination, this clinician indicated that there was limitation of motion in addition to palpable paracervical muscle spasms. X-ray images taken at that time also reportedly showed straightening of the cervical spine. Ultimately, however, the examiner opined that it was less likely than not that the Veteran's cervical strain condition was related to the neck pain noted in service. She explained that the Veteran did not require formal medical treatment for his reported neck pain after service and that there was no evidence of the early degenerative changes that would be expected in the setting of persistent severe neck strain of 20 years' duration. The examiner also indicated that the Veteran had worked in an administrative capacity for the 20 year period after he left active duty and that it was therefore more likely than not that the Veteran's current neck strain symptoms result from his occupational administrative activities after service rather than from his military service. In contrast to the Veteran, the examiner who evaluated the Veteran in November 2010 is a physician's assistant and possesses the knowledge and training to provide a competent opinion regarding the etiology of his current neck condition. Nevertheless, the Veteran argued in his January 2011 VA Form 9 that his active duty service comprised of the same sort of administrative work that he performed after service and which the examiner opined was the more likely cause of the Veteran's cervical strain. To gain further clarity on the etiology of his condition, the Board remanded this matter in August 2015 to obtain an addendum opinion from the November 2010 VA examiner. In response, the same clinician provided a November 2015 addendum opinion in which she again opined that it was less likely than not that the Veteran's cervical strain was caused by or incurred in service. The clinician again noted that the separation examination report did show right-sided neck muscle spasm but documented no chronic disability or sequelae related to the neck pain. She also indicated that the neck pain was not of sufficient severity to cause the Veteran to seek formal medical attention during active duty service. Notably, the examiner also indicated that 20 years of chronic neck strain would be expected to cause some degree of degenerative change in the cervical spine. Chronic strain or spasm of the paraspinal musculature was noted to increase the loadbearing stress on the articulating surfaces of the spinal column, which results in microfractures of the cartilaginous layers of those surfaces, which over time causes acceleration of the natural aging process of the vertebral column. The examiner explained that the x-ray images taken at the earlier, in-person evaluation showed no evidence of chronic degenerative changes of any of the Veteran's cervical spine structures. She also indicated that private medical records were not of record and that the weight of the available medical evidence leaned against the likelihood that the Veteran's current cervical strain represented a continuation of the symptoms he reported at separation from military service more than 20 years earlier. Given the reference to private treatment records in the addendum opinion, the Board again remanded this appeal in September 2016 to attempt to secure outstanding primary care records and to obtain an additional addendum opinion. In its directives, the Board instructed the examiner to specifically discuss the Veteran's symptoms during and after service and address whether the muscle spasm noted at the time of separation was the type that would "presumably" cause straightening of the normal curvature of the spine. In response, the examiner provided an additional supplemental opinion in November 2016. In her report, the examiner noted that she had reviewed the electronic folder and again stated that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She reported that neck muscle spasms, including the one noted on the Veteran's separation examination, would be medically expected to result in spasm causing straightening of the cervical spine curvature, but indicated that the Veteran has no history of trauma to the neck or other military activity that would be expected to result in the straightening of the cervical spine curvature. However, she indicated that the pain caused by chronic neck muscle spasm that would cause the acceleration of the natural degenerative aging process is usually of such a severity that the patient seeks medical attention of some kind and that, in the case of career administrative workers, some formal attempt to modify office workstation ergonomics would be expected in the presence of such chronic or persistent symptoms. Ultimately, the examiner stated that the Veteran's subjective reported symptoms and the physical examination findings noted on the 2010 VA medical examination report are consistent with occupational stresses to his neck due to prolonged administrative work. However, she indicated that it was her medical opinion that the presently available medical evidence regarding his neck condition did not support the Veteran's claim of chronically persistent or recurrent neck spasm dating all the way back to his administrative work during active military service. The Board finds that this competent and credible opinion is the most probative evidence of record. The Board acknowledges the Veteran's January 2016 statements that, he was taught not to complain about every little ache while in the military and that he currently experiences both back and left knee pain for which he does not seek treatment. In November 2017, the Veteran's representative explained that the Veteran only rarely received treatment when his boss or wife forced him to do so. The Board has also considered a Letter of Support from April 1985 in which the Veteran's fellow service member indicated that the Veteran had to computerize his work at that time when it became evidence his penmanship was lacking. Although these statements are competent and the Board does not have any reason to doubt the credibility of the Veteran's statement that he rarely seeks medical attention for his symptoms, there is no evidence that either can provide a competent medical statement linking the Veteran's current disability to his active duty service. The Board finds that the examiner's opinion is more probative with respect to the central question of whether the Veteran's current cervical strain is etiologically related to service. Although the examiner did note on numerous instances that chronic cervical strains that are significant enough to last 20 years would usually prompt a patient to seek medical attention or to seek accommodations to their workstations, she also provided a competent and persuasive statement that a persistent cervical strain and spasm of the duration claimed by the Veteran would also cause an acceleration to the degeneration of the Veteran's cervical spine and that, because x-ray imaging of this portion of the Veteran's spine were negative of evidence of degenerative changes 20 years after service, it was less likely than not that the Veteran's current cervical strain was related to service. This statement was given by a competent medical professional who explained the specific anatomical structure and progression of the disability at issue and the Board finds that it is highly probative in this case. The Board has also considered the November 2017 arguments of the Veteran's representative that the November 2016 addendum opinion cannot be relied upon because the examiner did not review the entire service personnel file that was associated with the claims file after the examiner's review of the record. However, these additional records appear to merely provide additional evidence that the Veteran performed administrative tasks while serving on active duty and the examiner appears to have thoroughly accepted the fact that the Veteran performed such duties while in service. As such, the Board is satisfied that the examiner had a sufficient understanding of the Veteran's factual background and his medical and occupational history. In the November 2017 representative brief, the Veteran's attorney also argued that the examiner relied on the lack of treatment records of a neck condition in determining that the current condition was unrelated to service. As such, the representative argued that it would be error on the part of the Board to rely on such an opinion and, citing Buczynski v. Shinseki, 24 Vet. App. 221 (2011), that VA is not permitted to deny the Veteran's claim due to the lack of medical records. Notwithstanding this argument, it is important to note that the examiner did not solely rely on the absence of medical treatment records relating to any neck-related symptoms in arriving at her conclusion. As noted above, the examiner specifically indicated that recurring cervical strain and/or muscle spasm resulting in straightening of the spine for the 20-years claimed by the Veteran would likely have caused degenerative changes in his cervical spine. As such, she is not relying on the absence of medical evidence, but rather the presence of radiographic evidence that includes no signs of the type of clinical findings that would be expected if the Veteran's cervical spasm had persisted for 20 years. Ultimately, the Board finds that the preponderance of the probative and competent evidence of record weighs against a finding that the Veteran's current cervical strain is related to the Veteran's in-service administrative duties, to include his report of neck pain and the stress in his neck that was noted at his separation examination. Accordingly, his claim must be denied and the doctrine of the benefit of the doubt is not for application. III. VA's Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159(b). Here, the Veteran was provided with the required notice and information in a February 2010 letter prior to the initial adjudication of his claim. There have been no contentions that this notice is deficient in any way. As such, the Board is convinced that VA has satisfied its duty to notify. VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. The record indicates that the Veteran's service records have been associated with his claims file. The Veteran was also provided with a November 2010 VA medical examination to evaluate the nature and etiology of his neck pain. Pursuant to Board remands, VA obtained addendum opinions in November 2015 and November 2016. Taken together, the Board finds that this examination report and the subsequent opinions adequately describe the nature and etiology of the Veteran's claimed condition. They also adequately address the specific items on which the Board sought further clarification in the September 2016 remand directives by specifically addressing the Veteran's reported symptoms and the muscle spasm present at separation. Taken together, they also contain a detailed and persuasive rationale for all opinions offered. In its September 2016 Board remand, the Board also directed the Agency of Original Jurisdiction to contact the Veteran and ask him to submit authorization for private medical records that were potentially relevant to his claim. Later that month, VA sent the Veteran correspondence asking him to identify the private treatment records referenced in the November 2015 VA medical opinion. Although there is no indication in the record that the Veteran responded to this letter, the Board is satisfied that VA has substantially complied with the Board's remand directives. As such, the Board is therefore convinced that VA has satisfied its duty to assist and notify the Veteran in this claim. ORDER Service connection for a cervical strain is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs