Citation Nr: 18159509 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 07-24 121A DATE: December 19, 2018 ORDER Entitlement to service connection for a cervical spine disability as secondary to a service-connected disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a current cervical spine disability that is caused or aggravated by a service-connected disability. CONCLUSION OF LAW Service connection for cervical spine disability secondary to a service-connected disability is not warranted. 38 U.S.C. §§ 1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1971 to April 1991. This matter was originally on appeal from a rating decision dated December 2008 of the Department of Veterans Affairs (VA), Regional Office (RO) in Columbia, South Carolina. The issue of entitlement to service connection for a cervical spine disability on a secondary basis comes back before the Board of Veterans’ Appeals (Board) on Remand from the United States Court of Appeals for Veterans Claims (Court) regarding a Board decision rendered in June 2012. The Board remanded this matter for additional development in August and November 2013. The November 2013 Board decision also denied the claim for entitlement to a cervical spine disability on a direct basis. 1. Entitlement to service connection for a cervical spine disability as secondary to service-connected disability is denied. VA’s Duties to Notify and Assist The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). See April 2014 VCAA letter complies with the requirements. The Board also concludes VA’s duty to assist has been satisfied. The Veteran’s records have been associated to the fullest extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). The Veteran was provided VA examinations relating to the cervical spine and service-connected PTSD and low back disability during the course of the appeal, as explained below. The examiners took into account the Veteran’s reported history, his current symptoms, and review of the available private and VA treatment records. The Board finds the examination reports to be thorough and complete and sufficient upon which to base a decision with regards to this claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria for Service Connection Pertinent VA law and regulations provide that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Generally, this requires (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303(d). Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303(b). When a chronic disease becomes manifest to a degree of 10 percent within one year of a veteran’s discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran’s period of service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2017). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012). Merits of the Claim Again, the November 2013 Board decision denied the claim for entitlement to a cervical spine disability on a direct basis, finding that the cervical spine disorder did not have onset in service and was not otherwise etiologically related to service. The sole issue before the Board is service connection for a cervical spine disability as secondary to his service-connected disabilities. Post-service medical records include numerous diagnoses relating to the Veteran’s cervical spine including cervical stenosis, myelopathy, radiculitis, cervicalgia, and spondylosis. By way of background, as noted by the November 2013 Board decision, the service treatment records are devoid of any complaint, finding, or diagnosis pertaining to a cervical disorder. The first documented complaint of neck pain was in private treatment records of March 2007, which is approximately 16 years following service discharge. The Veteran is service connected for PTSD at 100 percent, lumbosacral spondylosis at 20 percent, right hip bursitis at 10 percent, ganglion cyst at 10 percent, right wrist scar at 10 percent, and erectile dysfunction at noncompensable. The Board finds the preponderance of the evidence is against finding the Veteran’s cervical spine diagnoses are caused or aggravated by his service-connected disabilities. The Veteran has contended that his PTSD caused or aggravates his cervical spine. The Veteran submitted a scholarly article by M.T., Ph.D., that states that individuals with PTSD may also be more likely to experience physical health problems, including pain and arthritis. The article explained that PTSD puts tremendous stress on the body and sufferers of PTSD are more likely to engage in high risk behavior, such as alcohol abuse. The Veteran appeared for a VA examination in August 2014. The examiner stated that the cervical disorder is less likely than not caused by or accelerated beyond natural progression due to service-connected PTSD. The examiner explained that this postulation is not substantiated in the peer reviewed medical literature. The current neck condition is more likely age-related wear and tear. The examiner stated that this is congruent with medical literature. The Board gives more probative weight to the August 2014 VA examiner’s opinion. The article submitted by the Veteran was setting forth the author M.T.’s opinion, does not claim to reflect the consensus or majority opinion of the medical community that PTSD could cause or aggravate a cervical spine diagnosis, and it is not specific to the Veteran’s case. The August 2014 examiner’s opinion provides competent medical evidence specific to this Veteran’s case, indicating that the Veteran’s cervical spine disorder is less likely as not caused or aggravated by his PTSD. The VA opinion was made upon examination of the Veteran, review of the claims file, and review of a body of medical literature. The VA examiner’s opinion was thorough and reasoned, concluding that the current neck condition is more likely related to age and wear and tear. Further, the Veteran appeared for a VA examination in October 2016. The examiner stated the current cervical spine disorder is less likely than not related to his service-connected lumbar spine condition. The examiner explained that the cervical spine condition is a separate, primary condition, [not] caused or aggravated by his lumbar spine pathology. The Board gives probative weight to this opinion as it was based on examination of the Veteran, review of the claims file, and contained well-reasoned rationale. There is no competent medical evidence of record that contradicts or questions this negative nexus opinion. The Veteran is indeed competent to testify as to such observable symptomatology; for example, suffering pain and other symptoms from his cervical spine pain and service-connected disabilities. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, lay assertions do not constitute a competent clinical diagnosis of an existing disability or create an etiological link of causation or aggravation between the cervical spine diagnosis and service-connected disabilities. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As a result, these lay assertions cannot constitute competent medical evidence in support of the claim. There is no indication that the Veteran contends that his cervical spine disorder is caused or aggravated by a service-connected disability other than PTSD and/or low back disability. There is no evidence in the claims file suggesting that the Veteran’s cervical spine disorder was caused or aggravated by a service-connected disability other than PTSD, therefore, the Board does not discuss any evidence relating to service-connected disabilities other than the medical opinions discussing the PTSD and low back. As stated, the Board gives most probative weight to the VA examiner’s opinions indicating that it is less likely as not that the Veteran’s service-connected PTSD or low back caused or aggravated his cervical spine. Without competent and credible evidence linking a cervical spine disability to being caused or aggravated by a service-connected disability, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107(b). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Georgiev