Citation Nr: 1817255 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 08-23 153A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for cervical spine disability. ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case has a complex procedural history as indicated in the Board's prior remands. See BVA Decisions (September 2013, October 2014, May 2015, and April 2017). That history will not be repeated here. FINDING OF FACT Cervical spine disability is not attributable to service or secondary to service-connected disability. CONCLUSION OF LAW The criteria for service connection for cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131, 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. VA's duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran has not alleged prejudice or any issues with the duty to notify or the duty to assist. The Federal Circuit Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Arthritis shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. This includes any increase in disability (aggravation). 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a veteran's non-service connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. Facts & Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for cervical spine disability. A cervical spine disorder is not shown in service and arthritis is not shown within the initial post separation year. A cervical spine disorder is not secondary to service-connected disability. Service treatment records (STRs) reflect no complaints or findings for abnormal cervical spine pathology. Medical board examination report dated in January 1976 reflects normal clinical evaluation of the spine. Complaints and abnormal pathology of the cervical spine are first documented in 2005, decades after service separation. Degenerative joint disease and degenerative arthritis of the cervical spine was assessed in June 2005. A private physician noted in June 2005 that the Veteran had neck and low back pain for many years "because of the patient being morbidly obese"-weighing over 450 pounds until gastric bypass surgery in 2003. See Medical Treatment Record - Non-Government Facility (April 2010). Report of VA examination dated in October 2008 reflects that the Veteran's osteoarthritis of the neck was most likely age related-and not related to service or service-connected ankle disability based on review of the record and clinical experience. Reports of VA examination dated in June 2014 and December 2016 reflect that the Veteran's cervical spine disability is less likely as not related to service-connected low back, right hip, and/or right ankle conditions based on review of the medical records, medical literature, and clinical experience. A November 2017 VA medical opinion reflects that cervical spine disability is not caused or aggravated by service-connected disability of the lumbar spine, right hip, and/or right ankle. The examiner reviewed the record and explained that the onset of the Veteran's symptoms was consistent with the natural aging process and the evidence did not support a causal relationship. The physician further explained that the cervical spine condition was not aggravated by service-connected disability as there was no indication of permanent worsening based on review of the record to include progression of symptoms since 2005 and imaging studies, along with consideration of relevant peer-review medical literature which "is against a relationship (cause, effect or aggravation, if any)" between cervical spine disability and service-connected disability. The medical evidence is competent, credible, and highly probative. It weighs against the claim. The Board has considered the Veteran's theory that cervical spine disability is related to service-connected disability, which causes an altered gait, station, and stance. The Veteran is competent to report his symptoms and treatment. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, because the etiology of his cervical spine disability is not susceptible to lay observation and as he lacks the requisite medical expertise to formulate a competent opinion, the Board finds that the Veteran's medical opinion has no probative value. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). The Board has further considered the July 2008 statement of the Veteran's private chiropractor, F.H.-indicating that an evaluation showed diffuse degenerative joint disease, muscle spasm and neuritis which appeared to be due to years of irritation due to an altered gait allowed by a fractured ankle while he was in the military. The Board finds that this evidence is unclear as to whether the chiropractor is referencing the lumbar or cervical spine (or both), and his conclusion is not supported by a rationale. See Sklar v. Brown, 5 Vet. App. 140 (1993) (the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion). Also, it is entirely unknown whether the chiropractor reviewed the STRs or any medical records intervening service and the first complaints of neck problems. Therefore, the Board finds that the medical opinion has little probative value. Here, the Board assigns greater probative value to the normal findings on service medical board report of January 1976 and the negative 2017 VA medical opinion. The January 1976 STR is more probative because it was prepared contemporaneous with the Veteran's period of service-essentially demonstrating that he had no cervical spine disability at the time he was leaving the military. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The VA medical opinion dated in 2017 is more probative than other evidence of record because it is fully supported by a complete rationale and reflects a comprehensive review of relevant medical history and treatment records with consideration of the Veteran's theory of entitlement. This evidence reflects consideration of the principles of secondary service connection and the supported medical conclusion that cervical spine disability is not secondary to service-connected disability. On balance, the weight of the evidence is against the claim. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Accordingly, the claim is denied. ORDER Service connection for cervical spine disability is denied. ____________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs