Citation Nr: 1808238 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-24 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a cervical spine disorder, claimed as a neck strain, to include secondary to service-connected low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to June 1972, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2013, May 2016, and April 2017, the Board remanded the case for additional development and it now returns for further appellate review. The Board observes that, following the Agency of Original Jurisdiction's (AOJ's) most recent adjudication of the Veteran's claim in the October 2017 supplemental statement of the case, additional VA treatment records dated through December 2017 were associated with the record. While the Veteran has not waived AOJ consideration of such evidence, the Board finds no prejudice in proceeding with a decision on his claim at this time as the newly received evidence is duplicative of that previously considered by the AOJ or irrelevant to the matter at issue. 38 C.F.R. § 20.1304(c) (2017). As noted by the Board in previous remands, the issue of whether new and material evidence has been received to reopen a claim for service connection for jungle rot of both feet was raised at the Veteran's November 2012 hearing, but it has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over this matter and it is once again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT A cervical spine disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest within one year of service discharge, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). While the Veteran alleged that the VA opinions obtained during the course of the appeal are inadequate for adjudication purposes, which will be discussed in detail herein, neither he nor his representative have alleged any other deficiency with respect to VA's duties to notify or 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 duty to assist argument). II. Analysis 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.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of 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). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). 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 claimant. 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 his current cervical spine disorder, claimed as a neck strain, is a result of in-service incidents, specifically a motor vehicle accident and a fall from a grease rack. He also contends that his neck disorder is caused or aggravated by his service-connected low back disability. A July 2013 VA examination report and multiple VA treatment records reflect a diagnosis of degenerative disc disease (DDD) of the cervical spine. As such, the Board finds the Veteran has established a current disability for purposes of service connection. Thus, the remaining question is whether such disorder is related to the Veteran's military service or his service-connected low back disability. In this regard, the Veteran's service treatment records (STRs) show he was injured in a vehicle accident in May 1971. The records show he had swelling in his face and pain on his right side after striking his face and chest. He did not complain of any neck pain at the time. His STRs also show treatment for a back injury in March 1972 after he fell backwards, but again he did not mention any pain or injury to his neck. The remainder of the Veteran's STRs likewise fail to show any complaints, treatment, or diagnoses referable to his neck. Additionally, no neck injury or pain was noted at his June 1972 separation examination. Further, at such time, he stated he was in good health. In order to determine the nature and etiology of his neck disorder, the Veteran was afforded a VA examination in July 2013. The examiner noted no neck pain or injury reported from the Veteran's two in-service events, i.e., the fall and the vehicle accident. The Veteran's separation examination was also noted to have no complaints of neck injury or pain. Further, the examiner noted that the Veteran's numerous claims submitted to VA since separation from service in 1972 were absent of any complaint of a neck injury until 2007. The Veteran was noted to have complained of neck pain in conjunction with shoulder pain in July 1999; however, the examiner explained that same record noted the Veteran reported a weight lifting injury two years prior and a crushing injury to the chest also two years prior. The examiner also noted a mental health note from June 2003, which documented two failed suicide attempts by hanging. She noted the lack of reports of neck pain from service until 1999, and following that one report of neck pain, there were no further reports of neck pain until 2008. The examiner then opined that the Veteran's neck disorder was less likely as not related to or aggravated by service, noting further the trauma in 1997, the two suicide attempts by hanging, and the Veteran's employment from 1972 to 1988 in a physical job, as possible intervening causes for a neck injury. The Board finds the examiner's opinion in regard to the direct service connection highly probative. In this regard, the opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations 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"). There is no medical opinion to the contrary. With respect to secondary service connection, the Veteran contends that his neck disability is proximately due to or aggravated by his service-connected low back disability. In this regard, he testified at his November 2012 Board hearing that his back disability, and the manner in which he was compensating for such disability, caused or aggravated his neck disorder. As noted in the Board's May 2016 remand, while the July 2013 VA examiner offered a negative nexus opinion regarding the relationship between the Veteran's service-connected back disability and his claimed neck disorder, she did not offer a rationale for such opinion. Consequently, it is afforded no probative weight. Following the Board's remand, an addendum opinion was obtained in June 2016. At such time, the examiner again reviewed the record and opined that the Veteran's current neck disorder was less likely as not caused by his service-connected low back disability. She noted the lack of any medical records that relate the Veteran's neck pain to his back disability. She also noted the back disability was exacerbated in 2004, but there was no mention of developing neck pain at that time. She contrasted the lack of medical records linking the neck pain to the back disability with the other records suggesting alternative causes of the neck injury. In this regard, she noted that records cite several instances, including trauma occurring around 1997 and two suicide attempts by hanging with rope around neck, that could have very specifically resulted in isolated neck injury. The Board finds this opinion highly probative as to whether the Veteran's claimed neck disorder was caused by his service-connected back disability. In this regard, the opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. There is no medical opinion to the contrary. However, as such opinion did not address whether the Veteran's back disability aggravated his claimed neck disorder, the Board remanded the claim for another addendum opinion. In May 2017, the same VA examiner who had provided the previous two opinions provided another addendum opinion. She opined that the current neck disorder was less likely as not aggravated beyond its normal progression by the Veteran's service-connected low back disability. She supported her conclusion through another review of the record, and again found a lack of medical records showing any link between the Veteran's low back pain and the worsening of his DDD. In this regard, the opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Therefore, it is entitled to great probative weight. There is no medical opinion to the contrary. The Board observes that, in his November 2017 Appellant's Post-Remand Brief, the Veteran's representative contended that VA examiner improperly relied on the lack of medical evidence in rendering her negative opinions, and, consequently, the Veteran's lay assertions should be given more weight than such opinions. However, such statement is simply not true. In this regard, while the examiner noted that the medical records were negative for complaints of neck pain at certain times, such was not the sole basis of her opinions. Rather, she pointed out that the record detailed other causes of the Veteran's neck disorder, to include a weightlifting injury and suicide attempts. Moreover, the Board may weigh the absence of contemporaneous medical records against the credibility of the lay statements at hand. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In this regard, the Board acknowledges that the Veteran is competent to describe symptoms that he is able to perceive through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the Board finds the Veteran's statements regarding the cause or onset of his neck disorder and post-service symptoms have been inconsistent during the pendency of the appeal and, thus, he is not an accurate historian. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In this regard, while the Veteran reported that he initially received treatment at Meriden Wallingford Hospital for his neck disorder in the late 1970s or early 1980s, he did not submit such records or provide authorization for VA to obtain such records. Moreover, the evidence of record reflects that the Veteran's first complaint of neck pain was in July 1999; however, at such time, he reported a weight lifting injury two years prior and a crushing injury to the chest also two years prior. However, the Veteran did not relate his neck complaints to any instance of his military service or his back disability. Furthermore, while the Veteran reported the in-service accident at numerous times, to include in December 1994 (reported seeing a doctor when he returned from service for his ears, back, and scars due to a rocket attack and a truck accident), August 1997 (mentioning a bad truck accident), and April 2004 (reporting that he has experienced his lower back pain since the truck accident in 1972), he did not mention a neck injury in relation to such accident until March 2009, 37 years after service, when he mentions he hurt his toe and neck in the truck accident. Additionally, the Veteran pursued numerous claims for service connection immediately on separating from service; however, he did not report any neck pain or injury and did not seek treatment, outside the alleged treatment in the 1970's or 1980's and on one occasion in 1999, for neck pain until 2008, at which point he was diagnosed with DDD. Furthermore, at his July 2013 VA examination, the Veteran denied any injury to the neck since service; however, the examiner noted that the record contained reports of a crushing injury, a weight lifting injury, two suicide attempts by hanging, and work in a physical job. Consequently, in light of the inconsistencies in the Veteran's statements regarding the cause or onset of his neck disorder and post-service symptoms, the Board accords his statements as to the onset of his neck disorder and the continuity of neck symptomatology after service to be not credible. Moreover, there is no evidence that arthritis of the cervical spine manifested in the Veteran's first post-service year and the July 2013 VA examiner likewise found no objective evidence of arthritis within one year of military discharge in 1972. Therefore, presumptive service connection for the Veteran's neck disorder is not warranted. The Board has also considered the Veteran's assertions that his neck disorder is related to his military service, or is caused or aggravated by his back disability; however, the etiology of a neck disorder, to specifically include DDD, is a complex medical matter requiring training and experience that he does not possess. In this regard, the Veteran is not shown to have any medical training that would qualify him to provide an opinion regarding the etiology of a neck disorder. Here, the question regarding the onset, development, and/or etiology of a neck disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of neck disorder, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinion as to the etiology of his neck disorder is not competent evidence and, consequently, is afforded no probative weight. In sum, the Board finds the Veteran's current cervical spine disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest within one year of his separation from active duty, and was not caused or aggravated by a service-connected disability. Consequently, service connection for such disorder is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a cervical spine disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs