Citation Nr: 18149376 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-33 651 DATE: November 9, 2018 ORDER The claim of entitlement to service connection for a cervical spine disability is denied. The claim of entitlement to service connection for recurring headaches, as secondary to cervical spine disability, is denied. FINDINGS OF FACT 1. Although no cervical spine diagnosis or history of cervical spine disability was noted at service entry, it is established by clear and unmistakable evidence that the Veteran entered service with a pre-existing cervical spine disability. 2. It is established by clear and unmistakable evidence that the Veteran’s pre-existing cervical spine disability was not aggravated by service. 3. As service connection for a cervical spine disability has not been established, there is no legal basis to award secondary service connection for recurring headaches. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for recurring headaches, as secondary to cervical spine disability, are not met. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1971 to March 1971. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2014 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, denied the Veteran’s claims for service connection for a cervical spine disability and recurring headaches. In June 2014, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2015, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in September 2015. In January 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. As for the matter of representation, the record reflects that the Veteran was previously represented by Colorado Department of Veteran Affairs, as reflected in an October 2015 VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative). However, in November 2016, the Veteran executed another VA Form 21-22 appointing Arizona Department of Veterans Services as his representative. The Board recognizes the change in representation. See 38 C.F.R. § 20.605. At the outset, the Board has determined that all notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished and that there is, thus, no prejudice to the Veteran in the Board proceeding to a decision on these claims, at this juncture. In this regard, the Veteran chose to participate in the Fully Developed Claims (FDC) program, and the notice that accompanies such application (VA Form 21-526EZ) informs claimants of the information and evidence necessary to substantiate various types of claims, to include his claims for service connection. Also, the evidence received and considered in connection with these claims include the Veteran’s service treatment records (STRs), VA treatment records, private treatment records, VA examination reports, service personnel records, the transcript of the January 2017 Board hearing, as well as written statements provided by the Veteran and his representative, on his behalf. Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence necessary for a fair adjudication of the claims that has not been obtained. Service Connection In this case, the Veteran contends that he has a cervical spine disability that is related to service—specifically, when he was hit in the back of his neck by a drill instructor during exercises therein. Additionally, the Veteran contends that he currently has recurring headaches that are related to his cervical spine disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) an etiological relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be established on a secondary basis for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires competent evidence showing (1) the existence of a current disability, and (2) that the current disability either (a) was caused by or (b) is aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The determination as to whether elements of a claim are met is based on an analysis of all the evidence of record and the evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Baldwin v. West, 13 Vet. App. 1, 8 (1999). In adjudicating a claim for VA benefits, 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. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-6 (1990). Turning to the evidence of record, in a September 1970 service enlistment examination report, the Veteran was clinically evaluated as normal as to the spine and other musculoskeletal system. In a February 1971 treatment note, the Veteran reported that his neck was bothering him, and that he had fractured his neck in 1969 in a car accident. In a February 1971 medical board report that followed, the Veteran was diagnosed with an old cervical spine fracture. The report noted that the Veteran stated that he sustained fractures to the cervical spine two years prior in a truck accident; that he was placed in a neck brace-type cast for four months; that since then, he has had pain in the cervical region, limitation of motion, and weakness and paresthesias of both upper extremities; that he did not reveal this history to examiners on the advice of his recruiter; and that while on active duty, he had recurrence of symptoms and revealed this history. The report also revealed that X-ray studies of the cervical spine revealed an old healed sclerotic fracture of the first cervical vertebra with narrowing of the disc space. In that report, the medical board found that this condition was not incurred in the line of duty, and that it existed prior to entry into service, and was not aggravated by service. The medical board also found that this condition made the Veteran unfit for duty and recommended that he be discharged. A February 1971 statement signed by the Veteran reveals that he was informed of the medical board’s findings, and that he did not desire to submit a statement in rebuttal to such findings. September 2011 operative reports from the Veteran’s private doctor, Dr. R., document diagnoses of C6-7 degenerative disk disease and stenosis and cervical myeloradiculopathy. The reports note that the Veteran underwent a C6-7 anterior cervical diskectomy and fusion (ACDF) on September 2011 following a January 2011 work-related fall, which caused refractory neck and arm pain, as well as headaches. In a November 2013 follow-up treatment record, Dr. R. noted that the Veteran was doing well overall, but that he still had some posterior neck pain and headache, especially with certain ranges of motion. Dr. R. also noted that the Veteran was in the process of looking into being treated by the VA, and had questions regarding whether or not his cervical disc problem at C6-7 could be a result of his time in the military. Dr. R. also noted that when talking with the Veteran about his military history, he said he was discharged in 1971, and that prior to discharge, he had a history of spinal injury on his record. Dr. R. stated that he was not aware of the significance of this, but that if the Veteran did have a neck injury dating back to that time, it could have been enough of an injury to a disc to cause slow wear and tear and degenerative changes over the course of time that resulted in having the ACDF surgery. In February 2014, the Veteran underwent VA neck conditions and headaches examinations, and was diagnosed with degenerative disc disease with fusion and radiculopathy affecting the right C7 nerve roots as well as tension headaches. The VA examiner noted that the Veteran stated that his cervical spine disability began when a drill instructor hit him in the back of his neck with a stick. The VA examiner opined that the Veteran’s claimed cervical spine condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The VA examiner reasoned that the Veteran appeared before a medical board in February 1971 regarding his neck condition, and per that medical board report, the Veteran sustained fractures of the cervical vertebrae two years prior to entrance into the military, and refrained from reporting these on the advice of his recruiter. The VA examiner further reasoned that, although the Veteran reported reinjury during military service, there is no independent evidence of this, and no mention of this to the medical board. In a February 2016 letter, Dr. R. stated that the Veteran was a patient at his office who underwent a C6-7 ACDF surgery with him in September 2011, and that prior to discharge from service, the Veteran had a history of a spinal injury on record. Dr. R. also opined that it was at least 50 percent medical probability that the injury could have been enough of an injury to the disc at C6-7 to cause slow wear and tear and degenerative changes over the course of time that resulted in him having to undergo surgery. During the January 2017 Board hearing, the Veteran testified that the February 1971 medical board report was not accurate. In this regard, he testified that in 1969 he was involved in a motor vehicle accident, but that they had only gotten rear-ended by another vehicle, and that there were no injuries from that accident. He denied being in a neck brace following that incident, and denied that the recruiter told him to not put anything down about a neck problem on examination. He testified that he did not remember saying that he had a neck fracture in 1969. He testified that his neck began to bother him in service—specifically, after a drill instructor came up from behind him and hit the back of his neck with a stick—and that it has persisted to the present. Considering the pertinent evidence in light of the applicable legal authority, the Board finds that service connection for a cervical spine disability is not warranted. In addition to the basic legal authority governing service connection cited above, pertinent to this claim, it is noted that every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. To rebut the presumption of soundness in 38 U.S.C. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). By “clear and unmistakable evidence” is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). In determining whether there is clear and unmistakable evidence to rebut the presumption of soundness, all evidence of record must be considered, including post-service medical opinions. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000); Adams v. West, 13 Vet. App. 453 (2000). The term “noted” denotes only such disorders that are recorded in examination reports. The existence of disorders prior to the active military service reported by the veteran as medical history do not constitute a notation of such disorders, but it will be considered together with all of the other evidence in question as to the commencement of the disease or disorder. 38 C.F.R. § 3.304(b)(1). Determinations of whether a disorder pre-existed the active military service should be based on a thorough analysis of the evidentiary showing and careful correlation of all medical facts, with due regard to manifestations, clinical course and character of the particular injury or disease or residuals thereof. Id. An injury or disease that has been determined to be pre-existing will be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. The burden to show no aggravation of a pre-existing disease or disorder during service lies with the government. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). Here, the Board finds that the competent evidence of record clearly and unmistakably establishes that the Veteran’s cervical spine condition pre-existed service, and that the condition was not aggravated beyond its natural progression by service. As noted, although the Veteran entered service without evidence of a pre-existing cervical spine disability on his September 1970 service enlistment examination report, not long after he entered service, a February 1971 STR documents the Veteran’s complaint that his neck was bothering him, as well as his report that he fractured his neck in 1969 in a car accident. In addition, these complaints resulted in a February 1971 medical board, the report of which documents a diagnosis of an old cervical spine fracture, and that X-ray studies of the cervical spine revealed an old healed sclerotic fracture of the first cervical vertebra with narrowing of the disc space. Significantly, the report notes that the Veteran stated that he sustained fractures to the cervical spine prior to service; that since that time, prior to service, he has had pain in the cervical region, limitation of motion, and weakness and paresthesias of both upper extremities; and that he did not reveal this history to examiners on the advice of his recruiter. Also, in that report, the medical board determined that this condition was not incurred in the line of duty, and that it existed prior to entry into service, and was not aggravated by service. Moreover, based on review of the claims file and the Veteran’s statements, the February 2014 VA examiner found that the Veteran’s claimed cervical spine condition clearly and unmistakably pre-existed military service. Significantly, there is no contrary medical evidence or opinion on this point. Also based on review of the claims file and the Veteran’s statements, the February 2014 VA examiner opined that the Veteran’s claimed cervical spine condition was not aggravated beyond it natural progression by service. Significantly, there is also no contrary medical evidence or opinion on this point. As the comment and opinion of the February 2014 VA examiner were clearly based on examination of the Veteran, and full consideration of the Veteran’s documented medical history (to include the in-service medical board report) and the lay assertions of record, and supported by clearly-stated rationale, the Board accepts these conclusions as probative evidence on the questions of pre-existence and in-service aggravation upon which this claim turns. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, the Veteran’s assertions, alone, do not diminish the probative value of this medical evidence. While the Veteran is certainly competent to report his history regarding his cervical spine condition, these reports must be considered in light of objective evidence, and their credibility must be assessed. See Jandreau, 492 F.3d at 1377; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Notably, the Veteran’s reports concerning his cervical spine condition are inconsistent with his documented history. In this regard, a February 1971 STR, along with a February 1971 medical board report, document that the Veteran reported fracturing his neck prior to service in a motor vehicle accident. In addition, despite the Veteran’s testimony during the Board hearing, the medical board report noted that the Veteran stated that he was put in a neck brace-type cast for four months following that motor vehicle accident; that since that motor vehicle accident, he has had cervical spine symptoms; that he did not reveal this history to examiners on the advice of his recruiter; and that while on active duty, he had recurrence of symptoms and then revealed this history. Also, that report revealed that X-ray studies of the cervical spine revealed an old healed fracture. Moreover, in a February 1971 statement that was signed by the Veteran, he explicitly confirmed that he was informed of the medical board’s findings and declined to submit a rebuttal. As such, the Board finds that any current lay reports of record from the Veteran pertaining to the history of his cervical spine condition are not credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (“[t]he credibility of a witness can be impeached by a showing of interest...[and] inconsistent statements...”). The Board also points out that the medical history reported by the Veteran at the time of his February 1971 complaint regarding his neck is also considered probative evidence regarding such history. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment). See also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”). Furthermore, to the extent that the Veteran contends that Dr. R.’s February 2016 opinion and comment in a November 2013 treatment record (both appearing to pertain to service connection on a direct basis) resolve the claim, the Board find that they do not. In this regard, it is unclear as to the “history of spinal injury” that Dr. R. refers to in both the February 2016 opinion and November 2012 comment. Also, with regard to the November 2013 comment, it does not reflect the degree of probability required to substantiate a claim for service connection. See Winsett v. West, 11 Vet. App. 420, 424 (1998) (terminology equivalent to “may or may not” is an insufficient basis for an award of service connection). Moreover, and most significantly, the February 2016 opinion and November 2013 comment are nonetheless minimally probative because they are all substantially based upon history as provided by the Veteran. As the Board has determined that the Veteran’s reports are not credible, the February 2016 opinion and November 2013 comment are not based upon a credible history, and are therefore of no probative value. See Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994) (finding that presumption of credibility of evidence did not arise as to medical opinion that a veteran’s disability was incurred in service because it was based on an inaccurate history, one which failed to acknowledge an injury well-documented in the record, and hence holding such evidence not “material”); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that presumption of credibility did not arise because physician’s opinion was based upon “an inaccurate factual premise” and thus had “no probative value”). Finally, to whatever extent the Veteran and/or his representative attempt to assert that the Veteran’s cervical spine condition was incurred in or aggravated by his service, such assertions do not provide persuasive support for the claim. In this regard, the matter of medical etiology of a disability—to include underlying questions of pre-existence and aggravation of such disability—typically are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some simple medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the specific matters under consideration are complex medical matters that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n. 4 (holding that lay persons are not competent to diagnose cancer). As neither the Veteran nor his representative is shown to be other than a layperson without appropriate medical training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on any medical matters upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). Hence, the lay assertions in this regard have no probative value. For all the forgoing reasons, the claim for service connection for cervical spine disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. With respect to the secondary service connection claim for recurring headaches, although an April 2014 VA headaches examination report shows that the Veteran has a current diagnosis of tension headaches, as service connection for a cervical spine disability is not established, secondary service connection for headaches must be denied as a matter of law. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel