Citation Nr: 1751703 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 10-33 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a cervical spine disorder, to include as secondary to the service-connected right knee disability. REPRESENTATION Appellant represented by: Stacey P. Clark, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1976 to March 1982 in the United States Air Force. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2013, the Veteran testified before the undersigned during a hearing at the RO. A transcript of the hearing is included in the electronic claims file. In January 2014, the Board remanded the appeal for further development. The Board recognizes that the Veteran filed a timely notice of disagreement (NOD) in response to a June 2015 rating decision. However, as July 2016 correspondence indicates the RO responded to the NOD and is actively processing it, remand of the claim for the issuance of a statement of the case (SOC) is unnecessary. See Manlincon v. West, 12 Vet. App. 238 (1999). Since the RO's last readjudication of the claim, additional evidence has been associated with the record. However, in September 2010 and September 2017, the Veteran waived his right to have such evidence reviewed in the first instance by the RO. FINDING OF FACT The Veteran's cervical spine disorder is not attributable to service, was not caused or aggravated by his service-connected right knee disability, and arthritis of cervical spine was not manifest within one year of his separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In addition, service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The record shows the Veteran has current degenerative arthritis of the cervical spine, documented, for example, on VA examination in April 2014. The service treatment records (STRs) do not document any complaints, treatment, or diagnoses involving the neck. The Veteran does not report that his cervical spine disorder was incurred in or are directly related to service, rather, he has contended throughout the appeal that it is secondary to his service-connected right knee disability, as his right knee is unstable and has caused numerous falls. On VA examination in July 2009, the examiner opined that the current cervical spine disorder was less likely than not caused by the right knee disability. She explained that degenerative changes occur as a result of direct trauma, or, in the case of weight-bearing joints, alterations in normal mechanics of ambulation. The cervical spine is neither a weight-bearing joint, nor was it involved in direct trauma. In private medical reports of Dr. T. dated in July 2010 and April 2012, she opined that the Veteran's cervical spine disorder was related to his right knee disability to the extent the right knee was weak and caused frequent falls. She explained, "it would be consistent that his cervical disc disease is chronic in nature due to multiple traumatic events or possible stress-induced issues over the past few years. It may be related to frequent falls that produced the neck trauma, whiplash-type injuries to his neck and may progress to this kind of cervical condition which is consistent with chronic changes over the years due to repetitive trauma issues or repetitive stress issues from a musculoskeletal standpoint." In private treatment records of 2011, it was noted that the Veteran had fallen from a ladder at work and injured his neck, and also that he had been involved in a motor vehicle accident and injured his neck. The records also documented falls due to right knee instability with subsequent complaints of neck and other pain. In January 2014, the Board remanded the claim in order to obtain an opinion on the matter of whether the cervical spine disorder was aggravated by the right knee disability. On VA examination in April 2014, the examiner opined that the cervical spine disorder was not aggravated by the service-connected right knee disability. He explained that disc degeneration and accompanying arthritis are common developments. Age-related changes are present in 40 percent of adults over the age of 35 and in almost all individuals over age 50. The current medical literature was silent for any mechanism by which falls due to knee instability could aggravate existing spinal spondylosis with degenerative disc disease in the absence of fractures. The Veteran had no objective evidence of a history of cervical spine fractures. As such, his cervical spondylosis with degenerative disc disease was found to be a "stand-alone entity, neither due to nor aggravated by his service connected right knee." Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the cervical spine disorder is related to the Veteran's active military service, or that a chronic disability was incurred in service. While the Veteran received treatment for a variety of conditions in service, he did not seek treatment related to the cervical spine. A cervical spine disorder was not found within one year of separation from service, including on VA examination in 1982; rather, the evidence reflects that the disorder was not shown until many years after service discharge. The fact that he sought treatment for other conditions after service, but not a cervical spine disorder, weighs against the credibility of any statement that the disorders persisted since discharge. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); Caluza v. Brown, 7 Vet. App. 498 (1995). The record does not include an opinion on the matter of direct service connection. However, in addition to the lack of credible lay or medical evidence showing that a cervical disorder was incurred during service, the evidence does not link the disorder to service. As there were no relevant complaints, treatment, or diagnoses in service, there is no injury, disease, or event to which a current disorder could be related. The standards of McLendon v. Nicholson, 20 Vet. App. 79 (2006) are not met here. Consequently, VA is under no duty to obtain a further medical opinion addressing direct service connection. On the matter of secondary service connection, the July 2010 and April 2012 opinions of Dr. T. are of diminished probative value as they are speculative. Dr. T. related the cervical spine disorder to "possible" stress-induced issues, and found it "may be related" to frequent falls. Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of a claimed disorder or any such relationship). Dr. T.'s opinions additionally suggest other etiologies of the current disorder, including the post-service motor vehicle accident, to the extent she references whiplash injuries as a possible cause. By contrast, the medical opinion evidence from the VA examiners is persuasive. The July 2009 and April 2014 VA examiners reviewed and accepted the reported history and symptoms in rendering the opinion, and provided a rationale for the conclusions reached. They addressed the contentions of secondary service connection, but opined that the Veteran's cervical spine disorders was not due to or aggravated by his right knee disability. Rather, another etiology, the natural aging process, was identified. The only evidence to the contrary of the VA examination reports is the lay evidence. The Board finds that the Veteran's lay assertions, and those of his family and friends, are both admissible and believable. Consequently, the Board will weigh the lay statements against the medical evidence. The VA examiners were medical professionals who reviewed the claims file and considered the reported history, including the lay assertions. The examiners, in providing the requested medical opinions, used their expertise in reviewing the facts of this case and determined that the Veteran's cervical spine disorder was not caused or aggravated by his service-connected right knee disability. As the examiners explained the reasons for their conclusions based on an accurate characterization of the evidence, the opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In weighing the VA examiner's opinions against those of the Veteran, his family, and friends, the Board finds that the credibility and probative value of the specific and reasoned statements of the trained medical professionals outweighs that of the general lay assertions. Additionally, presumptive service connection for arthritis of the cervical spine as a "chronic disease" is not warranted as there is no documentation of cervical spine arthritis from within one year of the Veteran's 1982 discharge. As for a continuity of symptomatology between the disorder and service, arthritis of the cervical spine was not noted during service, and characteristic manifestations of the disease processes were not identified. Accordingly, § 3.303(b) is not applicable. See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). The Board has considered the applicability of the benefit of the doubt doctrine, but as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable to the claim. In reaching this decision, the Board considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Service connection for a cervical spine disorder is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs