Citation Nr: 1801396 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-04 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for degenerative joint disease (DJD) of the cervical spine, to include as due to service-connected degenerative joint and disc disease of the thoracic-lumbosacral spine. REPRESENTATION The Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD I. M. Hitchcock, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1967 to August 1969. This matter is before the Board of Veterans'Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In an April 2016 decision, the Board denied the Veteran's claims for service connection for DJD of both the lumbar and cervical spine. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). By an Order dated in October 2016, the Court vacated the Board's April 2016 decision and remanded for readjudication in compliance with a Joint Motion for Remand (JMR). In January 2017, the Board remanded the Veteran's claim to the RO for further development, as per the JMR. In February 2017, the Veteran underwent a VA examination and, in May of that year, was granted service connection for DJD of the lumbar spine (characterized as degenerative joint and disc disease of the thoracic-lumbosacral spine). As this is a full grant of the benefits sought by the Veteran as to that issue, it is no longer before the Board. In July 2017, the matter was once again remanded to consider whether the Veteran's cervical spine DJD was secondary to his service-connected degenerative joint and disc disease of the thoracic-lumbosacral spine. This development was completed, and thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT There is no probative evidence that the Veteran's DJD of the cervical spine had its onset in or is otherwise related to his active service, nor is there probative evidence that any cervical spine disorder has been aggravated by the service-connected low back disorder. CONCLUSION OF LAW The criteria for service connection for DJD of the cervical spine have not been met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Legal Criteria a. Presumption of Soundness A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment; or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). If a veteran is presumed sound at service entrance, a disease or injury that manifested in service is deemed incurred in service if the Secretary is unable to rebut the presumption. Id., at 53. The presumption of soundness relates to the second requirement-the showing of in-service incurrence or aggravation of a disease or injury. In order to invoke the presumption of soundness, a Veteran must show that he or she suffered from a disease or injury while in service. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second service connection requirement without further proof. Horn, 25 Vet. App. at 236. Even if an injury or disease is deemed to have been incurred in service pursuant to application of the presumption of soundness (or to have been found to have been actually incurred in service), a veteran must nonetheless establish that a current disability is related to the in-service injury or disease. Gilbert, 26 Vet. App. at 53-54 (citing Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009)("The presumption of soundness...does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof"). In other words, the evidence must show that a disease or injury, if not noted upon entry to service, manifested during or was incurred in service. The presumption of soundness is not for application without a predicate finding that a preservice disease or injury manifested or was incurred in service. Id. at 52. Consequently, there must be evidence that the disease or injury (not noted upon entry to service) manifested or was incurred in service. Id. In this case, the Board notes that service treatment records (STRs) showed that the Veteran had an old, healed compression fracture of the thoracic spine, at T-7 or T-9. Further, in a March 2010 VA examination, the examiner opined that it was clear "by review of the [STRs that the Veteran's] pain began prior to his service." However, review of the Veteran's March 1967 enlistment examination shows that back or neck problems were not noted on examination when he was accepted for service; therefore, the presumption of soundness applies. Thus, in order to rebut the presumption of soundness, the Board must find clear and unmistakable evidence of pre-existence. See Wagner, supra. In a May 2015 opinion, the VA examiner reviewed the Veteran's entire medical records and considered the Veteran's statements. The examiner opined that he "[did] not find any evidence that there was pre-existing back pain prior to Service." He found that "[if] there had been some injury when the Veteran was a youth, then, based upon his entry examination, that condition had completely resolved." Given that it appears that there is not clear and unmistakable evidence of a pre-existing condition, the Board finds that the presumption of soundness cannot be rebutted in this case. Accordingly, the Veteran is presumed sound, and this case is one for service connection and not for aggravation. See 38 U.S.C. § 1111; Wagner, supra. b. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In the absence of proof of a present disability, there is no valid claim for service connection: a Veteran's belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while in active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Secondary service connection may be granted for a disability that is not already service-connected. There must be evidence that the nonservice-connected disability is either proximately due to or the result of a service-connected disability; or aggravated (increased in severity) beyond its natural progress by the service-connected disability. 38 C.F.R. § 3.310; see Amin v. Shinseki, 26 Vet. App. 136 (2013). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has DJD of the cervical spine for which he should be service-connected. The Veteran has asserted that an injury occurred while in service, and alternatively, that his DJD of the cervical spine was either proximately due to, the result of, or aggravated (increased in severity) beyond its natural progress due to the service-connected thoracolumbar spine DJD. After service, the Veteran first sought treatment for the cervical spine in May 2005. X-rays of the cervical spine showed severe degenerative disc disease (DDD) with foraminal encroachment. A computerized tomography (CT) scan in July 2009 showed degenerative changes in the C5-C6 vertebrae with reduced disc space, as well as osteophytes at the C5-C7 level. Therefore, the Veteran has a current diagnosis of DJD of the cervical spine; thus, the first prong of service connection, existence of a present disability, is satisfied. Shedden, supra. The Veteran has maintained that he injured his spine while in-service lifting metal sheets. In the Veteran's STRs, his entrance and separation examinations noted normal clinical evaluations and no complaints of neck problems. It should be noted that the Veteran complained of subscapular, thoracic pain while in service. In February 1968, the Veteran complained of back pain in the center of his back, which had been present for about one year, and stated that he had seen a doctor prior to service for his back pain. There was no muscle spasm or pain on palpation, and no restriction or limitation of motion. STRs in February 1969 revealed that a radiologist reviewed the Veteran's x-rays and noted that there were no abnormalities on the film. Physical examination was normal except for some slight tenderness in the mid-dorsal spine. The physician discussed with the Veteran that although he might be in pain, there was no etiology for the pain. The physician explained that anxiety and tension could cause pain in some instances, to which the Veteran admitted to being anxious and tense. In May 1969, a psychiatric evaluation diagnosed the Veteran with psychosomatic back pain. The first mention of cervical pain in the medical record was in May 2005. VA treatment records reveal that in May 2005, the Veteran reported neck pain for the past three weeks, particularly when turning his head to the right. In June 2005, the Veteran stated that he had had neck pain for the past 60 days, which was increasing in severity, although the Veteran could not remember injuring his neck. In November 2005, the Veteran indicated that his neck pain began the previous year. VA treatment records from February 2014 forward show continuous treatment for DJD of the cervical and thoracolumbar spine. At a March 2010 VA examination, the Veteran reported that he injured his back in Vietnam while lifting tin roofing to build huts. He denied experiencing any further injury to his back or neck in subsequent years. MRI of the cervical spine revealed mild DDD at C5-C6 and C6-C7 with a bulging disc, resulting in a mild narrowing of the spinal canal. The examiner opined that it was less likely than not that his current spine condition, which was relatively diffuse osteoarthritis/degenerative disease of his spine, was secondary to any specific event that occurred in-service. He opined that it was more likely that Veteran's "diffuse osteoarthritis was related to his age, as well as his obesity, as opposed to any specific event that occurred in the service." However, the examiner did not specify whether the opinion was for lumbar or cervical DJD. In a May 2015 VA examination, the VA examiner thoroughly reviewed the Veteran's STRs, VA treatment records, and prior VA examinations. The examiner noted that the Veteran did not describe any neck pain while he was in the military, only in the mid and lower back. Further, the Veteran stated that he was not sure when the neck pain started, but it was not in the military. The examiner further noted that the first complaints of cervical issues were in 2005 and opined that it was not likely that the Veteran's cervical spine condition was related to his service because there was "absolutely no history to suggest this either from the medical record or from the Veteran." The examiner noted that the Veteran's neck complaints began after service "with a 2005 Neurology visit suggesting onset of symptom was 2 months prior." He found that the current x-ray changes were compatible with aging of the cervical spine. The Veteran attended a VA examination in February 2017. After reviewing the Veteran's STRs and VA records, the VA examiner gave the opinion that it is less likely than not that the Veteran's DJD of the cervical spine was incurred in or caused by an in-service event. In so finding, the examiner noted that the Veteran's main complaints were to his thoracic and lumbar spines, not his cervical spine. Further, the examiner noted that there was a 20 year symptom gap between service and 1985-1990 time frame when the Veteran indicated he first noticed symptoms. The examiner concluded that "post-service factors and aging must come into play." In an addendum opinion in August 2017, the VA examiner noted that it is less likely than not that the Veteran's cervical DDD was either caused by his service or aggravated by his service-connected degenerative joint and disc disease of the thoracic-lumbosacral spine. The examiner noted that while there is clearly a direct service connection for a lumbar spine injury, that injury is not related to the cervical spine and there is not a physiologic mechanism for lumbar DJD to affect the distant cervical spine. In clarifying, the examiner explained that degeneration is confined to a spine segment and the cervical and lumbar spine degenerative processes are separate and distinct. The examiner did note that theoretically, the injury that caused the lumbar spine could have affected the cervical spine, but that there was no cervical spine symptoms, diagnosis, or treatment in the record. While the examiner gives an opinion linking the Veteran's cervical DJD with the injury that caused the thoracolumbar DJD, the opinion is speculative because the doctor notes that the DJD of the cervical spine "theoretically...could have" affected the cervical spine. See Obert v. Brown, 5 Vet. App. 30, 33 (1995); Tirpak v. Derwinski, 2 Vet. App. 509, 611 (1992). Given that the opinion is speculative, it is given little probative weight. With regard to aggravation of the cervical spine by the lumbosacral DJD, the VA examiner stated that the effects of the lumbar degeneration can be seen in relation to cervical spine symptoms, to include altered gait mechanics and resulting cervical spine strain. However, direct trauma, microtrauma, and disc desiccation are responsible for developing DJD of the cervical spine and cannot be produced by the altered gait and cervical spine strain. Ultimately, while the symptoms may be aggravated, the DJD of the cervical spine pathology was not aggravated by the lumbar spine condition. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the claim for service connection for DJD of the cervical spine. The Board notes that the Veteran's STRs are silent as to any treatment, diagnosis, or complaints of cervical problems while in service. Specifically, the Board observes that the Veteran had on-going complaints for his mid-thoracic spine. Further, he had numerous x-rays of his spine which were reviewed by physicians, orthopedic surgeons, and radiologists, none of whom found any abnormalities with the Veteran's cervical spine. Relevant post-service treatment records reflect that the Veteran's was first diagnosed with degenerative changes to the cervical spine in May 2005, 36 years after his discharge from service. In addition, the Veteran stated in May 2005 that his neck pain had begun sometime in the past three weeks, and in June 2005, the Veteran again stated that his neck pain had begun some 60 days prior. Thus, the Veteran lacks the in-service occurrence prong to establish service connection for DJD of the cervical spine. See Caluza, 7 Vet. App. at 495-97. The Board accords great probative weight to the August 2017 VA examiner's that the Veteran's cervical DJD was not aggravated by his service-connected lumbosacral disorder as it is predicated on a detailed review of the records, including his STRs and VA examinations. The August 2017 VA examiner's opinion, along with the explanation that current symptomology could not create the injury needed to cause cervical spine degeneration, sufficiently addresses the potential link between the present DJD of the cervical spine and aggravation and contains clear conclusions with supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Further, the March 2010, May 2015, and February 2017 VA medical opinions all indicate that age is a likely factor in the Veteran's DJD of the cervical spine. There is no contrary medical opinion of record. The Board notes that the Veteran has contended on his own behalf that cervical DJD is related to his military service or aggravated by his service-connected thoracolumbar disorder. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. See Layno supra, at 470. Lay evidence may also be competent to establish medical etiology or nexus. Davidson, 581 F.3d at 1316. However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's DJD of the cervical spine and aggravation by his service-connected thoracolumbar disorder to be complex in nature. See Woehlaert, supra. Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing a connection between his cervical DJD and his service-connected back disorder. Moreover, he has offered only conclusory statements on the same. Therefore, as the VA examiner possesses the expertise necessary to identify the relevant factors to consider in assessing causality and provided an opinion in consideration of all of the relevant evidence, the Board accords great probative weight to this opinion. As such, it is not outweighed by the lay opinion asserted by the Veteran. The Veteran has not stated that his cervical DJD has continued since service; he started reporting pain in 2005 and specifically stated that his neck pain did not start while in service. As such, presumptive service connection, to include on the basis of continuity of symptomatology is not warranted for DJD of the cervical spine. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Based on the foregoing, the Board finds that service connection is not warranted for DJD of the cervical spine. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. Given that no ultimate, material issues are in equipoise, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for DJD of the cervical spine is denied ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs