Citation Nr: 18146505 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 10-12 659 DATE: October 31, 2018 ORDER Entitlement to service connection for degenerative arthritis of cervical spine is denied. FINDING OF FACT The Veteran’s degenerative arthritis of cervical spine did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; was not aggravated beyond its natural progression by service-connected disability; and is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative arthritis of cervical spine have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from July 1962 through March 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues on appeal for additional development in August 2015 and March 2017. The RO was requested to obtain copies of the medical records associated with the Veteran’s cervical spine surgery and the Veteran’s U.S. Postal Service (USPS) employment and medical records. VA sent letters to USPS in April, June, and July 2017 and to the National Medical Director of Safety and Health for USPS in August, September, and October 2017 requesting such documentation, which were never received. The Veteran submitted a letter on December 9, 2017 stating he does not have access to his USPS employee file and that the doctor whom conducted his cervical spine surgery has since retired and he is unable to retrieve such medical records. Therefore, the Board finds the directives having been substantially complied with and the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for degenerative arthritis of cervical spine. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a disease which constitutes a “chronic” disease listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 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. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as degenerative arthritis of cervical spine, 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 presumptive 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. In deciding an appeal, the Board must 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 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Veteran has degenerative arthritis of the cervical spine, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not manifested or diagnosed in service or within a presumptive period, and continuity of symptomatology is not established. Private treatment records show the Veteran was not diagnosed with degenerative arthritis of the cervical spine until June 2013, 21 years after his separation from service and years outside of the applicable presumptive period. See June 2013 QTC exam. However, the record shows the Veteran had degenerative disc changes in his cervical spine at the C6-C7 level in April 1998, which is six years after his separation from service and years outside of the applicable presumptive period as well. See April 1998 Northwest Neurological Surgery Note. The Veteran has not asserted that he has experienced symptoms of degenerative arthritis of the cervical spine continuously since service. Instead, he reports that his neurosurgeon noted that his degenerative arthritis of the cervical spine appeared to be an exacerbation of a preexisting injury, rather than a more recent injury. See September 2007 Correspondence. The Veteran has stated that he has no recollection of any such injury. Id. However, he has stated that he very well could have injured his neck any number of times without immediate knowledge. Id. Later, the Veteran points to a June 1982 racquetball injury and a 1969 swimming incident that occurred during service. See April 2015 Hearing Testimony and June 1982 Emergency Care and Treatment. Beyond the records pertaining to the June 1982 injury, there are no other objective reports of any neck or cervical spine injury. The Veteran’s treatment records show that he denied experiencing neck or cervical spine issues from his enlistment in July 1962 until April 1998, other than the June 1982 racquetball injury. The Veteran’s treatment records from eight and twelve months after the June 1982 racquetball injury reflect that his neck was normal, being supple, and having no adenopathy. See February 1983 Chronological Record of Medical Care and June 1983 Report of Medical Examination. Beyond the June 1982 injury, it wasn’t until approximately April 1998 that the Veteran reported any further symptoms, which is outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Furthermore, there are no service treatment records pertaining to any 1969 swimming incident. There were no sufficient manifestations to identify the disease entity in service or within the first post-service year nor has a continuity of symptomatology been shown, as no evidence indicates continuous symptoms since service. Therefore, the preponderance of the evidence is against a finding that the Veteran’s degenerative arthritis of the cervical spine was chronic in service or during the presumptive period and that a continuity of symptomatology exists. Service connection for degenerative arthritis of the cervical spine may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s degenerative arthritis of the cervical spine and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran indicated in his report of medical examination at separation that his neck and spine were normal. See December 1991 Report of Medical Examination. No defects or diagnoses were noted. Id. These medical records are highly probative both as to the Veteran’s subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran’s then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). As discussed above, treatment records show the Veteran was not diagnosed with degenerative arthritis of the cervical spine until June 2013 and did not show symptoms until approximately April 1998, years after his separation from service. See June 2013 QTC exam and April 1998 Northwest Neurological Surgery Note. While the Veteran believes his degenerative arthritis of the cervical spine is related to an in-service injury, event, or disease, including his June 1982 racquetball injury and/or a 1969 swimming incident, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). A July 2013 VA examiner opined that the Veteran’s degenerative arthritis of the cervical spine is not at least as likely as not related to an in-service injury, event, or disease. The examiner opined that there are no pertinent service treatment records. He stated that the enlistment and separation military exams were normal. The Veteran separated from service in 1992, which represents approximately a 16-year time gap from a March 2008 QTC exam diagnosis and a 21-year time gap from a June 2013 QTC exam, which does not establish a longitudinal trend of subjective complaints and objective findings. The examiner noted the Veteran’s cervical fusion in 1998. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the competent medical evidence. Therefore, the preponderance of the evidence is against a finding of a nexus and service connection on a direct basis is not warranted. The Veteran contends his doctor informed him that his cervical spine disability is an exacerbation of a pre-existing condition. However, the Board finds there is no objective evidence to support this contention. The March 2008 QTC examiner opined that the Veteran’s left shoulder condition is not linked to degenerative changes in the Veteran’s cervical spine. He opined that there is no historical, symptomatic, theoretical, or physical exam findings to link them. For VA to find that an unknown incident could have caused the disorder in question and grant the benefit would be speculative which is not an appropriate basis for the application of the benefit of the doubt doctrine. See 38 C.F.R. § 3.102. While the Veteran believes his degenerative arthritis of cervical spine is aggravated beyond its natural progression by service-connected disability, he is not competent to provide a nexus opinion in this case. Again, the issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the March 2008 QTC examiner. As such, service connection on a secondary basis is not warranted. Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that the Veteran’s degenerative arthritis of the cervical spine is causally related to his service, manifested within an applicable presumptive period, was chronic in service, or was aggravated beyond its natural progression by service-connected disability. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. McLendon, Associate Counsel