Citation Nr: 0729314 Decision Date: 09/18/07 Archive Date: 10/01/07 DOCKET NO. 03-11 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for residuals of traumatic injury, to include a cervical spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Millikan Sponsler, Associate Counsel INTRODUCTION The veteran served on active military duty from May 1957 to April 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board denied the claim on appeal by a February 2006 decision. The veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Based on an April 2007 Joint Motion for Court Remand (Joint Motion), the Court remanded this appeal for development in compliance with the Joint Motion. A July 11, 2007 letter was sent to the veteran and his attorney in which he was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's readjudication. In July 2007, the veteran responded that he had no further evidence to submit and requested that adjudication of his claim proceed after his representative had the opportunity to review and submit additional argument in support of his claim. FINDING OF FACT The evidence of record demonstrates that any residuals of a traumatic injury, to include a cervical spine disability, are not related to active service. CONCLUSION OF LAW Residuals of traumatic injury, to include a cervical spine disability, were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the veteran's claim for entitlement to service connection for residuals of traumatic injury, to include a cervical spine disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2006). Prior to the initial adjudication and re- adjudication of the veteran's claim, February 2002 and March 2003 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by the issuance of a fully compliant notification letter followed by a re-adjudication of the claim). Although the letters did not notify the veteran of effective dates or the assignment of disability evaluations, there is no prejudice to the veteran because the preponderance of the evidence is against service connection. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The letters also essentially requested that the veteran provide any evidence in his possession that pertained to this claim. 38 C.F.R. § 3.159(b)(1). Although VA did not advise the veteran to submit alternative forms of evidence to support his claim, such as corroboration in the form of buddy statements, the veteran exhibited actual knowledge of this option in a July 2005 statement in which he stated that two witnesses refused to provide statements. Washington v. Nicholson, 19 Vet. App. 362, 370 (2005) (noting that when VA is unable to locate a veteran's records, it must advise him to submit alternative forms of evidence to support his claim). The veteran's available service personnel records, VA medical records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The National Personnel Records Center (NPRC) indicated in September 2000 that the veteran's service medical records were not obtainable and were presumed destroyed in a 1973 fire. Because the veteran's service medical records are presumed destroyed, there is a heightened obligation to explain findings and to carefully consider the benefit of the doubt rule in cases such as this. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing a claim, and to explain its decision when the veteran's medical records have been lost. Ussery v. Brown, 8 Vet. App. 64, 68 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the veteran. Russo v. Brown, 9 Vet. App. 46, 50-51 (1996). VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The RO did not provide the veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006), the Court found that a VA medical examination was required to adjudicate a claim for service connection where there was a current disability, the Board found credible evidence of an inservice injury, the medical opinions of record noted that the current disability could have been caused by the inservice injury, and the Board did not find that the veteran's lay testimony regarding continuity of symptomatology was not credible. However, this case is distinguishable from McLendon because the credible evidence of record does not establish an inservice event. The veteran has asserted that during service, he was hit in the face by a spare tire of a 3/4 ton truck that knocked him about 30 feet. In a July 1996 private medical record, the veteran reported he had injured his neck in an inservice motor vehicle accident. In a September 2002 letter, a private physician stated that the veteran was involved in a military accident in which he received a neck injury. In a February 2003 VA medical record, the veteran reported an inservice accident where he was blown 30 feet, was unconscious for a long time, and was subsequently hospitalized. In a July 2005 lay statement, the veteran noted that there were witnesses to the accident, but that they refused to provide statements. Although the veteran is competent to provide testimony regarding events during active service, the Board does not find the veteran's statements credible to support a finding of an inservice event. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the Board is obligated to determine the credibility of lay statements); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that competent lay testimony is limited to that which the lay person has actually observed and is within the realm of personal knowledge). The entirety of the evidence of record does not support the veteran's assertion: there are no corroborating buddy statements or lay statements from family or friends regarding the alleged inservice accident and the medical evidence of record for over 30 years after service discharge does not indicate any residuals of a traumatic injury, to include cervical spine complaints or treatment. Buchanan, 451 F.3d at 1336 (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). Accordingly, because the Board finds that the evidence of record does not establish an inservice event, no medical examination was required. There is no indication in the record that any other additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Generally, service connection may be established for 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 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). In order to establish service connection for a claimed disorder, the following must be shown: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). As noted above, the veteran's service medical records are presumed destroyed by a 1973 fire at the NPRC. In private medical records from April 1994, the veteran reported cervical pain with upper extremity weakness, numbness, and tingling. The veteran reported that he had had these symptoms for some time and that they were progressive, but could not provide a time frame for when they began. Testing showed cord compression with cervical spondylosis. May 1994 private records show that after the cervical discectomy and fusion, the veteran had a hematoma, developed myeloradiculopathy of the cervical spine, and required a posterior decompression laminectomy. A May 1994 x-ray showed the veteran was status-post cervical fusion. In a July 1994 private record, the veteran was seen for follow-up. The prior medical history included a motor vehicle accident in 1958 in the Army. In private medical records from October 1994, December 1995, July 1996, August 1998, August 1999, December 2000, and October 2001, the veteran was seen for follow-up. In a September 2002 letter, a private physician stated that the veteran was involved in a 1958 military accident that injured the veteran's neck. Subsequently, the veteran had surgery for cervical disc rupture which resulted in nerve damage. The physician opined that based on the history and evidence, the cervical disc rupture was related to the 1958 injury. In a February 2003 VA medical record, the veteran reported numbness in his arms since the cervical fusion. The veteran reported that his problems started when he had an accident in service and was blown over 30 feet, was unconscious for some time, and was hospitalized. The current diagnosis was cervical radiculopathy. Private medical records from January 2004 through October 2005 indicated various lumbar and cervical spine complaints, diagnoses, treatment, and surgeries. In October 2005, a private physician diagnosed cervical spondylosis. In a July 2005 lay statement, the veteran reported that he had an inservice injury for which he was hospitalized when he was hit in the face by a spare tire of a 3/4 ton truck, which knocked him about 30 feet in the air. He reported that after service discharge, he had neck trouble and numbness in his hands. He also stated that there were two witnesses to the accident but that they refused to provide statements. Social Security Administration records indicate the veteran reported that his symptoms began in April 1994. He reported that he worked as a heavy equipment operator from 1973 to 1994. The Board finds that the evidence of record does not support a finding of service connection for residuals of a traumatic injury, to include a cervical spine disability. There is a currently diagnosed cervical spine disability. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). But, as noted above, the evidence of record does not establish an inservice event or injury. Hickson, 12 Vet. App. at 253 (holding that service connection requires medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury). Although the veteran is competent to provide testimony regarding events during active service, the Board does not find the veteran's statements credible to support a finding of an inservice event. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the Board is obligated to determine the credibility of lay statements); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that competent lay testimony is limited to that which the lay person has actually observed and is within the realm of personal knowledge). The entirety of the evidence of record does not support the veteran's assertion: there are no corroborating buddy statements or lay statements from family or friends regarding the alleged inservice accident and the medical evidence of record for over 30 years after service discharge does not indicate any residuals of a traumatic injury, to include cervical spine complaints or treatment. Buchanan, 451 F.3d at 1336 (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). In addition, the evidence of record does not demonstrate that the current disability is related to active service. Hickson, 12 Vet. App. at 253 (holding that service connection requires medical evidence of a nexus between the claimed in-service disease or injury and the current disability). A cervical spine disability was first diagnosed in 1994, well over 30 years after service discharge. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). Although a private examiner opined that the veteran's current cervical spine disability was related to the inservice incident, the Board does not find the opinion probative because the examiner did not have access to the claims file, the opinion was not supported by any clinical findings or medical rationale, the opinion did not discuss the lack of treatment or prior medical findings since service discharge, and the examiner did not explain his understanding of the inservice injury. Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992) (finding that although the Board may not ignore a medical opinion, it is certainly free to discount the credibility of a physician's statement); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (holding that the failure of the physician to provide a basis for an opinion goes to the weight or credibility of the evidence). The veteran's testimony that an inservice injury caused his cervical spine disability is not competent to establish such a medical opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (holding that lay testimony is competent to establish pain or symptoms, but not establish a medical opinion). The other post-service notations of an inservice cervical spine injury in the medical records do not verify or support the veteran's assertion. Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account does not serve to verify the occurrences described). Accordingly, service connection for residuals of a traumatic injury, to include a cervical spine disability, is not warranted. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of traumatic injury, to include a cervical spine disability, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs