Citation Nr: 22048902 Decision Date: 08/26/22 Archive Date: 08/26/22 DOCKET NO. 17-46 646 DATE: August 26, 2022 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a right hip disability is denied. FINDINGS OF FACT 1. A cervical spine disability did not have its clinical onset in service nor was it manifest to a compensable degree within one year of active duty separation, and is not otherwise related to an in-service disease or injury. 2. A right hip disability did not have its clinical onset in service nor was it manifest to a compensable degree within one year of active duty separation, and is not otherwise related to an in-service disease or injury. CONCLUSIONS OF LAW 1. A cervical spine disability was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C. §§ 1110, 1116(f), 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. A right hip disability was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C. §§ 1110, 1116(f), 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1990 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated November 2016 and October 2017 of the Department of Veterans Affairs (VA) Regional Office (RO). The November 2016 rating decision, in pertinent part, denied the claim of entitlement to service connection for a cervical spine disability. The Veteran filed a notice of disagreement (NOD) in July 2017 and a statement of the case (SOC) was issued in August 2017. He perfected a timely appeal in September 2017. The October 2017 rating decision, in pertinent part, denied service connection for a right hip disability. The Veteran filed a NOD in December 2017. An SOC was issued in January 2018 and the Veteran perfected a timely appeal in February 2018. In August 2020, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In December 2020 and January 2022 Board decisions, the claims were remanded for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was most recently issued in June 2022. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The January 2022 Board decision also remanded the matters of entitlement to service connection for migraine headaches, vertigo, tinnitus, and traumatic brain injury (TBI). In an April 2022 rating decision, the RO granted service connection for post traumatic headaches and assigned a 30 percent rating from March 24, 2015. The decision also granted service connection for Meniere's disease (claimed as tinnitus and vertigo) and assigned a 30 disability rating from March 24, 2015. In addition, the rating decision granted service connection for TBI and assigned a 10 percent rating from August 7, 2017. Those service connection claims have accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a right hip disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or from or aggravation of a pre-existing injury suffered or disease contracted in line of duty. See 38 C.F.R. §§ 1110, 1131; 38 C.F.R. § 3.303. Diseases diagnosed after discharge may still be service connected when all the evidence, including pertinent service records, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain specifically enumerated chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms that are in his or her personal knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. When considering whether lay evidence is 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. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts entitlement to service connection for disabilities of the right hip and cervical spine, which he claims were incurred as a result of injuries sustained during his active duty service. See, e.g., the Board hearing transcript dated May 2020. Specifically, he contends that he injured his neck during boot camp and then reinjured his neck and right hip during a fall in the Philippines. Id. For the reasons set forth below, the Board finds that service connection is not warranted for the claimed cervical spine or right hip disabilities. As to his contentions of in-service injury, the Veteran's service treatment records (STRs) do not document complaints of right hip or neck symptoms, nor are any such injuries or disabilities noted. However, the Board observes that the Veteran is competent to describe experiencing hip and neck injuries and symptoms during his military service. See Jandreau, 492 F.3d at 1376; Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007). The post-service record on appeal is silent for complaints or findings of right hip or neck disabilities for many years after service. For example, a VA orthopedic examination was performed in January 1994, the Veteran complained of right knee, left ankle, and back pain but made no mention of complaints or abnormalities pertaining to the right hip or neck. At that time, the Veteran's neck was examined and found negative for abnormalities. His gait was also described as normal and orthopedic evaluation identified no abnormalities of either hip. VA treatment records dated prior to 2015 show that the Veteran repeatedly denied neck pain and hip symptoms. Records dated in March 2015 first note that the Veteran's cervical range of motion was limited due to pain and fear of causing pain. VA treatment records dated in July 2015 noted that the Veteran's hip range of motion was decreased secondary to pain. Treatment records dated in August 2015 noted myofascial neck pain. VA treatment records dated in September 2015 document the Veteran's report of experiencing neck pain for 20 years, putting its onset in approximately 1995. He did not date the onset to an injury. The treatment provider indicated that the Veteran's "[n]eck pain was thought to be likely myofascial given the tenderness with palpation and limited range of motion due to pain." See the VA treatment records dated September 2015. VA treatment records dated in August 2017 noted that the Veteran reported that he experienced right hip pain following an in-service fall in 1990. An x-ray of the right hip performed in August 2017 revealed, "(1). No acute osseous abnormality is seen; (2). No definite arthritic changes are visualized." VA treatment records dated in March 2018 indicated that the Veteran reported chronic right hip pain. At the May 2020 Board hearing, the Veteran offered testimony concerning pain in his right hip and neck, which he indicated dated from his active duty service. Pursuant to the January 2022 Board decision, the Veteran was afforded VA medical opinions in June 2022 as to his claimed cervical spine and right hip disabilities. After reviewing and discussing the record in detail, including the Veteran's lay statements, the examiner determined that the claimed disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). To this end, the Board finds that the June 2022 medical opinions were based on a review of the record, including the statements and evidence submitted by the Veteran, and the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record. The June 2022 VA examiner's opinions, when read as a whole, sufficiently inform the Board of the clinician's judgment on the relevant medical questions and the "essential rationale" for his opinions. Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that VA examiners do not have a reasons or bases requirement). Where a medical opinion is lacking in detail, "the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination." Acevedo, 25 Vet. App. at 294. Moreover, medical reports must be read as a whole and in the context of the evidence of record. Id. The Board therefore places significant weight on the findings expressed in the June 2022 VA medical opinions. See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Significantly, after reviewing the Veteran's medical history, the June 2022 examiner concluded that the Veteran's cervical spine and right hip disabilities are not etiologically related to his military service, to include his report of in-service injuries. Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed disabilities and the Veteran's active duty service outweighs any medical evidence suggestive of a nexus. The Board has carefully considered the contentions of the Veteran that his cervical spine and right hip disabilities were incurred in or aggravated by his active duty service. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the Veteran's statements regarding the onset and etiology of his cervical spine and right hip disabilities are contradicted by both the contemporaneous clinical records as well as the opinions of the June 2022 VA examiner who specifically considered the Veteran's lay statements in rendering the negative opinions. The Board finds the specific, reasoned opinion of the trained health care provider who conducted the June 2022 VA opinions to be of greater probative weight than the more general lay assertions of the Veteran. The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence corroborating those statements. Buchanan, supra. In this case, the Veteran's recent recollections of continuous neck and hip pain since the in-service injuries he reports sustaining are contradicted by the contemporaneous clinical evidence which, as considered by the VA examiner, shows that he denied such symptoms on multiple occasions prior to 2015. The Board assigns more probative weight to the contemporaneous clinical evidence than to the remote recollections of the Veteran made in the context of a claim for monetary benefits. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in relative equipoise. Considering the record, including STRs, post-service medical evidence, the June 2022 VA medical opinions, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, as the evidence is not in approximate balance and is persuasively against the Veteran's claims, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.