Citation Nr: 0734284 Decision Date: 10/31/07 Archive Date: 11/07/07 DOCKET NO. 01-01 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for a cervical spine disability. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from July 1955 to July 1957. This appeal comes before the Board of Veterans' Appeals (the Board) on appeal from October 2000 and February and October 2002 rating decisions by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied the veteran's claims seeking service connection for a cervical spine disability and headaches. In July 2004, the veteran testified at a hearing held before the undersigned Veterans Law Judge. When this matter was initially before the Board in February 2005, it was remanded for further development. FINDINGS OF FACT 1. The medical evidence shows that the veteran's cervical spine disability was not present in service and was first manifested many years after service and is not related to disease or injury in service. 2. The medical evidence shows that the veteran's headaches were not present in service or until many years thereafter and is not related to service or to an incident of service origin, including his service-connected sebaceous cysts. CONCLUSIONS OF LAW 1. A cervical spine disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2007). 2. Headaches were neither incurred in nor aggravated by service, nor are headaches proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007). The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). See Sanders v. Nicholson, 487 F.3d. 881 (Fed. Cir. 2007). The notice should be provided to a claimant before the initial RO decision. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In January and May 2002 letters, as well as in letters dated in September 2003 and December 2006, the RO notified the veteran of the elements necessary to establish a claim of service connection. The letters notified him of the first element, i.e., that the evidence needed to show that the disability was related to a disease or injury of service origin. The letters also satisfied the second and third elements because they notified him of the evidence he was responsible for submitting and identified the evidence that VA would obtain. As to the fourth element, in the September 2003 and December 2006 letters, the RO advised the veteran to submit to VA any pertinent evidence in his possession, and in a signed August 2007 statement, the veteran indicated that he had no additional information or evidence to submit to VA, which affirmatively shows that he understood that he needed to file with VA any evidence in his possession that might substantiate his claim. The Board notes that although several of the letters were issued subsequent to the rating decisions on appeal, in a June 2007 rating action, a copy of which was issued to the appellant as part of the July 2007 Supplemental Statement of the Case, the RO readjudicated the claim, curing any procedural defect. See Mayfield v. Nicholson, 444 F.3d at 1334; Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board acknowledges that, to date, VA has not notified the veteran of the recent amendment to 38 C.F.R. § 3.310 that provides for the award of secondary service connection based on aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310(b) (2007). Because the veteran asserts service connection for headaches were caused by his cervical spine disability, and given that the Board in this decision denies service connection for a cervical spine disability, he is not prejudiced. Notice requirements also apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO notified the veteran of these criteria in a December 2006 letter. In any event, because the preponderance of the evidence is against the claim, any issue relating to an evaluation of the degree of disability or appropriate effective date is moot. Further, given his contentions, the veteran demonstrated his affirmative understanding, i.e., he had actual knowledge of what was necessary to substantiate his claim. Thus, the purpose of the notice, to ensure that he had the opportunity to participate meaningfully in the adjudication process, was not frustrated because he had actual knowledge of what was necessary to substantiate the claim prior to the Board's consideration of this matter, ensuring the essential fairness of the adjudication. See Sanders; Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007) (holding that actual knowledge by the claimant cures defect in notice). The Board further finds that a reasonable person could be expected to understand from the notice what was needed to substantiate the claim and thus the essential fairness of the adjudication was not frustrated. Thus, even assuming a notice error, the Board concludes the error was harmless. See Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007); Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). As to VA's duty to assist, the Board notes that VA has associated with the claims folder the veteran's service medical records, together with the records of his available post-service private and VA care. In this regard, the Board notes that pursuant to the Board's February 2005 remand instructions, the RO sought records of his in-service care while stationed in Germany, but those records are no longer available. Further, in compliance with the Board's remand instructions, the RO sought an authorization from the veteran to obtain records of physical examinations that were performed, since 1957, by his former employer; however, the veteran has not completed an authorization for the release of those records, and indeed, as noted above, has stated he has no further evidence to submit. In addition, he was afforded a hearing before the undersigned Veterans Law Judge in July 2004, and the transcript of that proceeding has been associated with the claims folder. In the February 2005 remand, the Board instructed the RO to afford the veteran a VA examination if relevant records were obtained. As discussed above, no such records were associated with the claims folder since the February 2005 remand, and the Board acknowledges that, to date, VA has neither afforded the veteran an examination nor solicited a medical opinion as to the onset and/or etiology of his cervical spine disability or headaches. Under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence shows that the veteran's cervical spine disability and headaches were diagnosed many years after service, and there is no medical evidence that even suggests a relationship between these conditions and service. Further, as will be discussed below, the Board finds that the veteran's report of a continuity of cervical spine symptoms since service is not credible. As such, there is no reasonable possibility that a VA examination would result in findings favorable to the veteran. Thus, VA is not required to afford him a medical examination and/or obtain a medical opinion as to the etiology or onset these disabilities. As such, the Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Background and Analysis The veteran asserts that service connection is warranted for a cervical spine disability and headaches because he has had both of these disabilities since service. In support, the veteran reports that he sustained trauma as a consequence of a motor vehicle accident while stationed in Germany, and that since that time, he has had chronic cervical spine and headaches. He maintains that although he received no formal treatment while on active duty, he has treated the disabilities over-the-counter medications such as Advil and Tylenol. In addition, he asserts that because he has had these problems since he was on active duty in the 1950s, any post-service motor vehicle accident was not the cause of either condition. Alternatively, although he maintains that his headaches had their onset during service, the veteran seeks service connection for headaches on the basis that he developed the condition due to his cervical spine disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. The law also provides that 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). To establish direct service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for disability proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Pursuant to 38 C.F.R. § 3.310(b) secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. See also Allen. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Thus, the Board must assess the veteran's competence to report sustaining cervical spine injury during service, his report that he has suffered from cervical spine problems and headaches since that time, as well as his credibility. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr and Washington, the Court noted that a veteran was competent to testify to factual matters of which he had first-hand knowledge, and citing its earlier decision in Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), held that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the personal knowledge of the witness; see also 38 C.F.R. § 3.159(a)(2) (2007) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). Further, the Federal Circuit held in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) that the lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible. Id. at 1336. As a finder of fact, though, the Board may weigh the absence of contemporaneous records when assessing the credibility of the lay evidence. As a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed.Cir.1996). In its role as a finder of fact, the veteran concludes that the veteran's report of having a continuity of cervical spine problems and headaches is inconsistent with the evidence of record and thus not credible. In reaching this determination, the Board notes that a careful review of the substantial medical evidence in the claims folder reveals that that while seeking treatment for several conditions during service, and in seeking care for numerous conditions during the several decades following his discharge from active duty in July 1957, the veteran failed to even mention, let alone complain, of having any cervical spine problems or headaches. Moreover, while seeking a compensable rating for his sebaceous cysts, in sworn October 1997 testimony, he argued that the condition was productive of headaches; until this appeal, the veteran did not contend that his headaches were present since service or were related to his cervical spine disability. Finally, there is no medical evidence that even suggests a link between the veteran's cervical spine disability or his headaches with his period of active duty. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claims and that service connection must be denied for a cervical spine disability and for headaches. In reaching these determinations, the Board notes that, as a lay person, the veteran is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions because such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions); see also Duenas v. Principi, 18 Vet. App. 512, 520 (2004); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Since he is not professionally qualified to offer a diagnosis or suggest a possible medical etiology, he is not competent to provide the required medical nexus evidence. In any event, the Board does not find his report of having chronic cervical spine problems and headaches since sustaining an in-service cervical spine injury to be credible. Thus, service connection is not warranted for these conditions. ORDER Service connection for a cervical spine disability is denied. Service connection for headaches is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs