Citation Nr: 1802452 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 07-22 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected lumbar spine disability. (The issues addressing the propriety of a rating reduction for residuals of a hysterectomy, an increased rating for degenerative disc disease of the lumbar spine, and a higher initial rating for depressive disorder with posttraumatic stress disorder have been addressed in a separate Board decision). REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from May 1986 to July 1998. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a May 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona (RO). In December 2009, the Veteran appeared at a travel Board hearing before the undersigned Veterans Law Judge. The hearing transcript is included in the claims file. The Board remanded the appeal in July 2010 and March 2015 to obtain outstanding VA treatment records and VA examinations to address the claimed cervical spine disability. This was accomplished, and the Board finds that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. Symptoms of arthritis in the cervical spine were not chronic in service and continuous after service separation. 2. Arthritis in the cervical spine did not manifest to a compensable degree within one year of service separation. 3. The evidence does not establish a nexus between currently diagnosed cervical spine disability and service. 4. The Veteran's cervical spine disability is not shown to be secondary to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103A, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the Veteran was provided adequate preadjudicatory notice addressing her service connection claim. Service treatment records, VA and private medical records, lay statements, and hearing testimony are of record. An updated April 2016 VA examination and supplemental medical opinions were obtained on remand, and the Board finds that, cumulatively, VA examinations and opinions of record are adequate and address the Veteran's appeal on both the theory of direct and secondary service connection. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis or hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may be granted 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). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310(b) provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. In rendering a decision on appeal the Board must also 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran contends that her cervical spine disability is due to in-service injuries to the cervical spine, and contends that it is aggravated by her service-connected lumbar spine disability. She contends that she injured her neck and cervical spine in service and contends that cervical spine and upper back symptoms are also related to derangement in the lumbar spine. The Veteran has currently diagnosed cervicalgia, cervical spondylosis, and degenerative joint disease of the cervical spine. See VA treatment records, VA examinations, and private treatment records from Dignity Health Medical Group. Symptoms of arthritis in the cervical spine were not chronic in service and continuous after service separation. Service treatment records show that the Veteran was treated for cervical spine injuries in service. In August 1986, the Veteran was seen for pain in the neck and upper back after a motor vehicle accident two days prior. She was diagnosed with a muscle strain to the neck. In July 1994, the Veteran was seen for mid-back pain after lifting soda cases. She had tenderness in the thoracic and cervical spine and was assessed with cervical thoracic strain. In March 1996, the Veteran was seen for mid-back pain/strain noting complaints of intermittent pain between the scapular area for the last year. No cervical spine complaints were noted on a July 1998 separation examination. Despite incidents of cervical strain shown in service, symptoms were not shown to be chronic in service and continuous since service separation as the record does not show that the Veteran continued to have cervical spine complaints after her 1994 or 1996 treatment, or for years after service separation. During a December 2009 Board hearing, when asked when she first noticed having neck pain, the Veteran indicated that she did not remember, and she has not otherwise provided statements or testimony indicating that cervical spine symptoms had been chronic since service separation. Service treatment records, reserves service treatment records dated after the Veteran's separation from service, and private treatment records show that the Veteran received treatment for chronic lumbar spine pain post-service, but do not identify chronic cervical spine complaints until 2008. The Board finds that had cervical spine symptoms been chronic, the Veteran had ample opportunity to seek treatment for such complaints as she had sought treatment for her lumbar spine complaints. For these reasons, the weight of the evidence shows that symptoms of cervical spine arthritis were not both chronic in service and continuous since service separation. Arthritis in the cervical spine did not manifest to a compensable degree within one year of service separation. An April 2003 dual x-ray bone densitometry study completed at MedTech Mammography Center shows that the Veteran was referred for post-menopausal osteoporosis. Bone mineral density was measured in the femoral neck and lumbar spine and met the criteria for osteopenia. The Veteran sought treatment for cervicalgia in 2008 and continued to receive treatment for chronic cervical complaints in 2009. A June 2009 private treatment report from Red Mountain Family Medicine noted that the Veteran had been seen on a regular basis since 2004, and noted that she suffered from worsening neck and lower back pain, but did not specify any date of onset for neck pain. A September 2009 VA MRI identified mild degenerative changes in the cervical spine. The Board finds that this MRI report is the earliest radiographic evidence of arthritis in the cervical spine shown by the record. For these reasons, the Board finds that arthritis of the cervical spine did not manifest within one year after service separation. The weight of the evidence does not establish a nexus between currently diagnosed cervical spine disability and service. August 2012 and April 2016 VA examiners both opined that it was less likely as not that the Veteran's cervical spine disability is related to service or in-service injuries. Both VA examiners reviewed the record and noted neck injuries in service, to include in-service treatment for neck strain after a 1986 motor vehicle accident, and neck complaints after a lifting injury in service. The VA examiners reasoned, however, that there were no further complaints following the lifting injury in service, to include on a June 1998 separation examination report. The April 2016 VA examiner also reasoned that the Veteran did not provide medical evidence of trauma or whiplash causing a delayed onset of her cervical spine symptoms. Instead, she provided evidence of multiple episodes of a lower back injury. The examiner stated that cervical spondylosis would not be secondary to over-exertion, and while the Veteran provided a history of falls in service, none involved injury to her neck. Based on this evidence, the April 2016 VA examiner opined that it was less likely as not that the Veteran's current neck pain was related to service. The Veteran's cervical spine disability is not shown to be secondary to her service-connected lumbar spine disability or other service-connected disability. The August 2012 VA examiner opined that the Veteran's cervical spine disability was not caused or aggravated by degenerative disc disease of the lumbar spine, reasoning that medical literature did not support the theory that dysfunction in one joint caused or aggravated dysfunction in another joint. The April 2016 VA examiner opined, in supplemental September 2016 opinions, that the Veteran's service-connected disabilities (depressive disorder with PTSD, residuals of a hysterectomy, a left knee replacement, degenerative disc disease in the lumbar spine, hearing loss, tinnitus, chronic fatigue syndrome, and actinic keratosis) would not cause or aggravate cervical spondylosis. While the examiner opined that chronic fatigue syndrome might aggravate her pain, in a second September 2016 opinion, the VA examiner clarified that basic pathological process of degenerative changes in the cervical spine would not be aggravated by chronic fatigue syndrome. The weight of the evidence shows, therefore, that the Veteran's cervical spine disability was not aggravated beyond its natural progression by her service-connected disabilities. The Board finds that VA opinions of record are probative because they are based on fully accurate factual background with regard to the Veteran's history of injury in service, her post-service treatment, and examination of the Veteran. Additionally, the Board finds that the rational provided for the opinions is adequate. Insomuch as the Veteran has asserted that her cervical spine disability is related to service, or to a service-connected lumbar spine disability, absent chronic symptomatology in the cervical spine, the Board finds that her lay assertions with regard to causation are outweighed by medical opinion evidence provided by two separate VA examiners on this issue. Additionally, while the Veteran submitted online articles addressing the cause of spinal stenosis cervicalgia and neck pain, a review of these articles shows that such disabilities are related to factors such as disc degeneration, or problems in the joints of the neck and upper back. In this case, the Veteran is shown to have neck pain related to degenerative joint disease in the cervical spine; however, the articles submitted by the Veteran do not tend to relate such cervical spine degenerative joint disease to lumbar spine degenerative joint disease. For these reasons, they do not tend to support evidence of such a nexus in this case. For these reasons, the Board finds that the weight of the evidence is against service connection for a cervical spine disability. Because the preponderance of the evidence is against the claim for service connection, the claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2016). ORDER Entitlement to service connection for a cervical spine disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs