Citation Nr: 19123721 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 10-18 338A DATE: March 29, 2019 ORDER Entitlement to service connection for a cervical spine condition is denied. Entitlement to service connection for a bilateral hip condition is denied. FINDINGS OF FACT 1. The probative evidence of record shows that the Veteran does not have a cervical spine condition that is etiologically related to his military service or to a service-connected disability. 2. A bilateral hip condition was not manifested during service or within one year of service, and the preponderance of the evidence is against a finding that the Veteran’s bilateral hip condition is related to an event, injury, or disease in service or to a service-connected low back disability. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a cervical spine condition have not been met. 38 U.S.C. §§ 1131, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for establishing entitlement to service connection for a bilateral hip condition have not been met. 38 U.S.C. §§ 1131, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1977 to August 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board remanded the issues on appeal to the Agency of Original Jurisdiction (AOJ) for further development in February 2015, May 2016, and April 2017. The case is once again before the Board for further appellate consideration. Service Connection The Veteran seeks entitlement to service connection for a cervical spine condition, which he contends is due to an in-service injury or to his service-connected low back disability. He also seeks entitlement to service connection for a bilateral hip condition, which he contends is secondary to his service-connected low back disability. A. Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.303 (a). Establishing service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303 (b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be competent evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature.” Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In deciding the Veteran’s claim, 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. B. Cervical Spine Condition A November 1978 service treatment record shows that the Veteran reported pulling muscles along the side of his neck. He was diagnosed with a sprain in his upper back and neck. Two weeks later, the Veteran reported that he was lifting a refrigerator and that his neck and back “went out again.” He was diagnosed with muscle strain. A June 1979 service treatment record shows that the Veteran reported injuring his neck playing frisbee. X-rays showed a normal cervical spine except for muscle spasms. He was diagnosed with cervical strain, and he underwent eight treatments of moist heat and exercises over eleven days. After the final treatment, the Veteran reported that his neck pain had been gone for several days, there were no muscle spasms, and neck motions were normal. Post-service medical records show that the Veteran injured his low back at work in April 1990. Private chiropractic records show that the Veteran reported low back pain with radiation to the right leg during bi-monthly to weekly visits from March 1996 to July 1997. He reported right neck pain in July 1997. He also reported neck pain in September 1997, which he associated with being under stress. An October 2006 chiropractic record shows that the Veteran reported pain and soreness of the neck and lower back with symptoms present for a week. A September 2007 chiropractic record shows that the Veteran reported pain and soreness of the neck. He described the symptoms as occasional, and he could not “relate a cause to the onset of the symptoms.” The Veteran was afforded a VA examination in August 2010. The examiner diagnosed the Veteran with cervical spine degenerative disc disease and opined that it was less likely as not due to the incident in service and more likely related to incidents and activities occurring after military service, such as aging. In an August 2011 statement, the Veteran reported that his initial cervical spine injury was in service and that he “continued to have neck pain since the in-service injury and the pain has gotten worse through the years.” See August 2011 VA Form 9. The Veteran was afforded a VA examination in May 2015. He reported that when he injured his back in service, it affected his neck, skull, and lower back. He also reported that he experienced intermittent neck pain since that time, with progressively worsening pain as he aged. The Veteran reported that he “re-injured his neck all the time” and that he had been in a car accident “that he thinks also affected his neck.” The examiner opined that the Veteran’s degenerative disc disease of the cervical spine was less likely caused by or the result of active duty service and less likely aggravated by his service-connected thoracolumbar spine disability, left shoulder disability, or bilateral elbow disability. The examiner explained that the Veteran had a few complaints of neck pain during service without any evidence of trauma to the neck. The examiner noted that cervical spine x-rays in June 1979 were normal except for muscle spasms. The examiner indicated that “[a] current musculoskeletal problem with no evidence of continuous symptoms and no evidence of continuous medical treatment since military discharge is most likely due to a significant intervening interceding event, and less likely related to a musculoskeletal condition of the same body part document during military service.” The examiner also noted that degenerative disc disease occurs with normal aging. Finally, the examiner noted that the Veteran was diagnosed with degenerative disc disease of the thoracic spine during service, whereas his cervical spine x-ray in service was normal and did not show any disease process or pathology. The examiner indicated that “[m]ost joints of the body, including the cervical spine, thoracic spine, lumbar spine, shoulder joint…function independently and a problem in one joint will not have any effect on another joint.” The Veteran was afforded a VA examination in October 2015. The examiner diagnosed cervical spine degenerative disc disease and opined that it was less likely as not caused by service because the in-service neck injury was “self-limited,” because there was no documented neck care proximal to service discharge such as to constitute evidence of a chronic disability, and because degenerative disc disease can be accounted for by age alone. In an August 2016 opinion, a VA examiner opined that the Veteran’s cervical spine condition was not related to the in-service neck injury because x-rays were negative and because strains do not cause degenerative joint disease as the articular surface of the joint is not disrupted at the time of the injury. The VA examiner also opined that the Veteran’s cervical spine condition was less likely caused or aggravated by his service-connected low back disability because orthopedic literature suggests that an injury to one joint would not have a significant impact on another or opposite uninjured joint or limb unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis. In a November 2016 addendum, the August 2016 VA examiner reiterated that the Veteran’s current cervical spine condition was less likely incurred in or caused by service because strains do not cause degenerative changes and because the Veteran’s current cervical spine degenerative changes were diagnosed more than 30 years after service. The examiner concluded that the Veteran’s current cervical spine condition is most likely due to natural aging or event that occurred after separation. In a December 2018 opinion, a VA examiner opined that the Veteran’s current cervical spine condition was less likely as not due to or aggravated by his service-connected low back disability because the cervical spine “is levels above the thoracolumbar spine” and because “[t]here is no known mechanism for degenerative change in the thoracolumbar spine to cause degenerative change in the cervical spine.” The examiner also noted that the Veteran “has listhesis in the cervical spine and has suffered a MVA after military service.” Given the evidence of record, the Board finds that service connection for a cervical spine condition is not warranted on either a direct or secondary basis. Regarding direct service connection, the Board notes that the Veteran has been diagnosed with cervical spine degenerative disc disease. As such, the Board finds the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service treatment records show that the Veteran was treated for neck injury in service. As such, there is evidence of an event, injury, or disease in service. Id. Accordingly, the issue turns upon whether there is evidence of a nexus between the in-service injuries and the present disability. Upon review of the foregoing evidence, the Board concludes that the evidence of record is against a finding that the Veteran’s currently diagnosed cervical spine condition is related to his military service or is of service origin. The Board finds the VA opinions of record, when taken together, to be highly persuasive to the issue of whether the Veteran’s current cervical spine condition is related to service. The September 2010 and May 2015 VA examiners generally opined that the Veteran’s current cervical spine condition was less likely as not due to the in-service neck injury and more likely due to other factors, such as aging. Likewise, the August 2016/November 2016 VA examiner expressly opined that degenerative joint disease is not caused by strains, such as the ones suffered by the Veteran in service. The Board places great probative weight on the VA opinions in this case, as they are consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran’s specific disability picture. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There are no contrary medical opinions of record. The Board acknowledges the Veteran’s assertions that his current cervical spine condition is related to service. 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 a cervical spine condition falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether his diagnosed cervical spine condition is related to his military service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran’s assertions that his current cervical spine condition is related to his in-service neck injury. The Board also acknowledges the Veteran’s assertions that he has suffered from neck pain since service. The Veteran is certainly competent to report symptoms such as pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the present case, the Board finds that the Veteran’s statements regarding onset and continuity of his current neck symptoms, while competent, are not fully credible. In this regard, the Veteran has made inconsistent and contradictory statements regarding the onset of his current symptoms. Specifically, in statements during VA examinations and during more recent VA treatment (i.e. contemporaneous with his current service connection claim), the Veteran reported that his neck pain has been ongoing since service. However, when the Veteran first reported neck pain during private treatment in July 1997, he reported a recent onset, and he did not mention a service origin. See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (upholding Board’s denial of service connection and finding that a veteran’s recent post-service account of in-service events was not credible because the Veteran had previously given other histories and theories that did not mention the alleged in-service event, and first “came up with the story” years after service and in connection with the compensation claim). Further, the Veteran’s contentions that he has suffered from continuous neck pain symptoms since service are inconsistent with other evidence of record. See Gardin v. Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). As detailed above, the first medical evidence of any neck symptoms after active service was in 1997, over 17 years after the Veteran’s discharge. The absence of post-service findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous neck symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). It is important to point out that the Board does not find that the Veteran’s lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.”). Rather, the current lay statements are found to lack credibility because they are inconsistent with and directly contradicted by other lay and medical evidence of record, including the Veteran’s own statements, showing that the Veteran did not experience chronic neck symptoms until many years after service. See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board’s finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). With regard to presumptive service connection, the Board finds that the Veteran’s degenerative disc disease is properly afforded such consideration, as it is one of the enumerated conditions in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1331. However, there is no probative evidence of record that the Veteran’s cervical spine arthritis manifested to a compensable degree within one year of the Veteran’s discharge from service in 1980. See 38 C.F.R. § 3.307(a), 3.309(a). Instead, the probative evidence of record shows that the Veteran was not diagnosed with arthritis until 2010, almost 30 years after service. Moreover, as noted above, the Board finds that the Veteran has not provided credible testimony that symptoms of arthritis have continued since service discharge. See Buchanan, 451 F.3d at 1336-37; Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). As such, presumptive service connection as a chronic disease, to include based on continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board also finds that service connection is not warranted on a secondary basis. The Board finds the VA opinions of record, when taken together, to be highly persuasive to the issue of whether the Veteran’s low back disability caused or aggravated the Veteran’s cervical spine condition. As noted above, the May 2015, August 2016, and December 2018 VA examiners all opined that the Veteran’s cervical spine condition was less likely as not caused or aggravated by his service-connected low back disability. The Board places great probative weight on the VA opinions in this case, as they are consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran’s specific disability picture. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Therefore, based on the foregoing, the Board finds that service connection for a cervical spine condition, is not warranted on a direct or secondary basis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a cervical spine condition. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. C. Bilateral Hip Condition Service treatment records silent for hip symptoms, complaints, or treatment. Post-service treatment records do not reference hip symptoms until July 2006 when the Veteran reported bilateral hip pain after falling on some stairs. During an August 2010 VA examination, the Veteran denied a bilateral hip joint condition, rather he reported a distribution of pain from his low back. The Board notes that the Veteran is separately service-connected for a bilateral leg disability, to include bilateral radiculopathy of the legs and buttocks, and that issue is not on appeal. The Veteran was afforded a VA examination in May 2015. The examiner diagnosed the Veteran with bilateral hip osteoarthritis and opined that is was less likely the result of service or the service-connected low back disability. The examiner noted that there was no record of hip pain during service. The examiner also indicated that “bilateral degenerative changes of a joint are most likely related to age-related degenerative changes.” Regarding secondary service connection, the examiner explained that most joints in the body function independently of each other and will not affect other joints “unless there is a history of limping for a considerable amount of time due to an opposing contralateral joint.” In an August 2016 opinion, a VA examiner opined that the Veteran’s bilateral hip condition was less likely as not due to the service-connected low back disability because joint disease does not spread to another joint and because the Veteran’s bilateral hip condition “is due to something intrinsic to the bilateral hips and not the thoracolumbar spine.” In a December 2018 opinion, a VA examiner opined that the Veteran’s bilateral hip condition was less likely as not caused or aggravated by his service-connected low back disability because the Veteran has “slight degenerative changes in both hips without any asymmetry” and because there is “no known mechanism for DDD of the thoracolumbar spine to cause or aggravate the development or progression of this condition.” Given the evidence of record, the Board finds that service connection for a bilateral hip condition is not warranted on either a direct or secondary basis. Regarding direct service connection, the Board notes that the Veteran has been diagnosed with bilateral hip osteoarthritis. As such, the Board finds the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). However, there is no evidence of an event, injury, or disease in service or a nexus to service. As noted, service treatment records are negative for any treatment or diagnosis of a hip condition. The Veteran’s hip condition was diagnosed in 2006, over 25 years after his separation from service. The Veteran does not assert, and the evidence does not show that his hip condition began prior to 2006. The Veteran has never contended that any aspect of service was applicable in his case and none of his attending clinicians noted reports by the Veteran of any symptoms or events in service relevant to a hip condition. In short, the record contains no argument or competent evidence even suggesting that the Veteran’s hip condition may be associated with service. As such, elements (2) and (3) are absent. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With regard to presumptive service connection, the Board finds that the Veteran’s osteoarthritis is properly afforded such consideration, as it is one of the enumerated conditions in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1331. However, there is no probative evidence of record that the Veteran’s bilateral hip arthritis manifested to a compensable degree within one year of the Veteran’s discharge from service in 1980. See 38 C.F.R. § 3.307(a), 3.309(a). Instead, the probative evidence of record shows that the Veteran was not diagnosed with arthritis until 2015, almost 35 years after service. As such, presumptive service connection as a chronic disease, to include based on continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran’s main contention is that his current bilateral hip condition is related to his service-connected low back disability. After reviewing the foregoing evidence, the Board finds that service connection is not warranted on a secondary basis. The Board finds the VA opinions of record, when taken together, to be highly persuasive to the issue of whether the Veteran’s low back disability caused or aggravated the Veteran’s bilateral hip condition. As noted above, the May 2015 VA examiner explained that bilateral degenerative changes of a joint are most likely related to age-related degenerative changes, the August 2016 VA examiner generally opined that the Veteran’s bilateral hip condition is not related to his low back disability, and the December 2018 VA examiner specifically noted that the Veteran’s slight, symmetrical bilateral hip arthritis was not due to his low back disability. The Board places great probative weight on the VA opinions in this case, as they are consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran’s specific disability picture. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). While the Veteran contends that his bilateral hip condition is secondary to his service-connected low back disability, the Board accords his statements little probative value because, as noted above, he is not competent to opine on such a complex medical question. In this regard, the question of causation and aggravation of a bilateral hip condition involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In a case such as this, where the bilateral hip condition has multiple potential etiologies, expert testimony is necessary to establish causation. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. See Jandreau, supra; 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). Therefore, based on the foregoing, the Board finds that service connection for a bilateral hip condition is not warranted on a direct or secondary basis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a bilateral hip condition. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel