Citation Nr: 20004115 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 06-08 082 DATE: January 16, 2020 ORDER Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability, is denied. FINDINGS OF FACT 1. The Veteran’s current cervical spine disabilities, to include anterior cervical discectomy and fusion (ACDF) and degenerative disc disease of the cervical spine, are not related to a disease or injury in service and is not secondary to any service-connected disability. 2. Symptoms of the Veteran’s degenerative disc disease of the cervical spine have not been continuous since separation from service and arthritis did not manifest to a compensable degree in the year following separation from service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability, to include as secondary to a service-connected disability, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1968 to January 1970. The Veteran’s claim was remanded by the Board of Veterans’ Appeals (Board) in June 2016 and December 2018. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to Service Connection for a Cervical Disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: “(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”-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disability which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). “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 (but only that degree) over and above the degree of disability existing prior to the aggravation.” Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran claims entitlement to service connection for a disability of the cervical spine, which he has asserted is either directly related to an in-service fall in 1969 or is secondary to his service-connected degenerative disc disease and traumatic arthritis of the thoracic and lumbar spine, status post multiple surgeries (thoracic/lumbar spine disabilities). While the evidence reflects that the Veteran has a current diagnosis of an ACDF of C4-C7 and degenerative disc disease of the cervical spine, the probative evidence of record weighs against the Veteran’s claim that his current cervical conditions were caused or aggravated by either his period of service or a service-connected condition. The Veteran’s service treatment records reflect his entrance medical examination in March 1968, which was normal for any spine disability, and separation examinations provided in December 1969 and January 1970, which both provided normal evaluations of the Veteran’s spine. The Veteran’s Report of Medical History from the January 1970 examination contains a notation that the Veteran had treatment for a back injury in July 1969 at the 39th Field Hospital in Wurzburg, Germany. The Veteran reports that he received treatment for an injury during this time for injuries sustained when he fell and landed on his back on concrete steps. See April 2009 Hearing Transcript, p.4. The Veteran has not contended that he recalls hitting his neck during this event and did not report pain in his neck, until the 1990s. See April 2009 Hearing Transcript, p.20. The Veteran, however, reported that after he developed symptoms in his neck, he sought treatment, which resulted in x-rays of the cervical spine. The Veteran stated that upon review of his x-rays he was asked if he had a history of a motor vehicle accident or an accident at work, due to the presence of what was interpreted as a prior cervical fracture. The Veteran stated that he did not have any history of cervical trauma and that the only serious injury he could remember was his fall on the steps in Germany. He stated that while he did not recall hitting his neck on the stairs at that time that it was possible that such an injury occurred but that he did not notice due to his back injury at the time. See April 2009 Hearing Transcript, p.20, 22. Alternatively, the Veteran has argued that his current cervical spine disability could have been caused or aggravated by his service-connected thoracic/lumbar spine disabilities that have resulted in two low back surgeries during the 1970s (1972 and 1975), and two more surgeries in 2003 and 2004. The Veteran was provided VA examinations in August 2009, August 2016, and April 2019. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to diseases with “unique and readily identifiable features” that are “capable of lay observation.” See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). 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 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initially, the Board notes that for certain chronic disorders, including arthritis, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Additionally, for chronic diseases defined by 38 C.F.R. § 3.309 (a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that the Veteran has been diagnosed with degenerative joint disease (or arthritis) of the cervical spine, which is a “chronic” disease under VA law. As such, service connection may be awarded if the condition manifested during service or manifested to a compensable degree within a year of separation from active service. Unfortunately, as the credible evidence of record weighs against a finding that the Veteran had cervical arthritis during service or within a year of separation from service. Particularly, the Board notes that the Veteran was examined in December 1969 and January 1970 and no disability of the cervical spine was reported and the Veteran did not report any symptoms of a cervical disability. Further, the Veteran has testified at hearing in August 2006 and April 2009 that he did not perceive any symptoms of cervical disability until approximately twenty years after his in-service fall and his separation from service. Additionally, the Veteran has testified that he does not even recall an injury to his cervical spine during service. As the evidence does not otherwise indicate a diagnosis of degenerative joint disease of the cervical spine during service or within a year of separation from service, the Board finds that service connection pursuant to 38 C.F.R. § 3.303 (b) is not warranted. Even where service connection cannot be presumed, however, service connection may still be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes that the Veteran was trained as a combat medic during his period of service and finds that he is competent to provide an opinion regarding the etiology of his current cervical spine opinion. The Veteran has stated that he believes that his condition is either the result of his in-service fall because he is unaware of any other incident that could have caused trauma necessary to cause cervical spine fracture. He also has indicated his belief that his neck disability could be secondary to his service-connected thoracic/lumbar spine disabilities. See April 2004 Application for Compensation, p.6. Unfortunately, the preponderance of the competent, credible evidence weighs against a nexus between any current cervical spine disability and either his period of service or his service-connected thoracic/lumbar spine disabilities. Regarding the Veteran’s contention that his condition was caused by his in-service fall, the Board gives more weight to the opinion provided by the August 2009 examiner. The 2009 examiner notes the Veteran’s reports that he did not perceive cervical spine problems during his service or until decades after his period of service and the Veteran’s reports of being asked “when did you break your neck?” due to his cervical x-ray. The examiner explained, however, that the x-ray technician incorrectly evaluated the cervical spine x-ray at that time. “The truth about the unusual cervical spine changes noted is found in the x-ray report from 2000 where a congenital fusion of C2-3 is described. The tech knew just a bit, saw an unusual shape and assumed it was a post fracture situation, but the tech didn’t know quite enough to recognize a congenital fusion which any experienced examiner of x-rays would have distinguished from a healed fracture.” Based upon review of the claims file and the Veteran’s history, the examiner opined that the Veteran’s cervical spine disabilities were likely caused by the natural process of aging and the development of degenerative joint disease; accordingly, he opined that the Veteran’s cervical spine problems were less likely than not due to any injury or event of the Veteran’s active service. The Board finds the opinion of the 2009 examiner to be of greater probative value than the opinion provided by the Veteran because the 2009 examiner reviewed the report of the 2000 x-ray, which noted the fusion of C2-3 as a congenital fusion; and the examiner’s finding that the evidence of record did not indicate that a medical doctor had expressed an opinion that the Veteran’s radiographs indicated a history of previous cervical spine fracture. By the Veteran’s own statements his opinion is based not upon his memory of an in-service injury to his neck but upon his failure to remember any other incident that could explain a prior fracture to his neck as reported to him upon review of the cervical x-rays. The Board notes that treatment records from the Lakeview Regional Medical Center include a September 2000 cervical spine x-ray report that notes a congenital fusion of C2-3. As the opinion provided by the 2009 examiner indicates that the Veteran’s x-rays were initially reviewed incorrectly and that the actual 2000 x-ray report does not indicate a prior history of a cervical fracture, the probative value of the Veteran’s opinion is greatly reduced. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304. For these reasons the Board finds that the weight of the competent, credible evidence of record is against the claim for service connection for a cervical spine disability on a direct basis. 38 C.F.R. § 3.303. Additionally, the Board finds that the Veteran’s current cervical spine disabilities were not caused, or aggravated by, his service-connected thoracic/lumbar spine disabilities. 38 C.F.R. § 3.310. The Board notes the Veteran’s contention that his cervical spine condition is secondary to his thoracic/lumbar spine disabilities; however, the Veteran has not provided argument to support this contention. The Veteran initially filed in April 2004 indicating that he believed his cervical disabilities were secondary to his thoracic/lumbar spine disabilities, but the Veteran failed to provide arguments to support this conclusion in either written statements or at either of his hearings in 2006 or 2009. While the Veteran is competent to provide an opinion regarding the etiology of his condition, the Board finds that the probative value of this opinion is significantly weakened by the Veteran’s failure to explain this contention. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (much of a medical opinion’s probative value is found in its rationale supporting the conclusion); see also Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008). The Board finds the Veteran’s opinion regarding secondary causation or aggravation by his service-connected thoracic/lumbar spine disabilities to be outweighed by the opinion provided April 2019 VA examiner. The examiner opined that it is less likely than not that the Veteran’s current cervical spine disabilities were caused, or permanently aggravated by, his service-connected degenerative disc disease and traumatic arthritis of the thoracic and lumbar spine, status post multiple surgeries. The examiner supported this opinion by noting that the medical evidence of record does not indicate any relationship between the two conditions. The Board finds that the rationale, based on review of the claims file and the Veteran’s medical records, is adequate and of greater probative value than the Veteran’s unsupported assertion. The evidence of record, including the Veteran’s private treatment records and VA treatment records associated with the claims file, does not otherwise establish a nexus between the Veteran’s cervical spine disability and his thoracic/lumbar spine disabilities. For these reasons, the Board finds that the weight of the evidence is against the claim for service connection for a cervical spine disability on a secondary basis, including aggravation. 38 C.F.R. § 3.310. Because the preponderance of the evidence is against the claim for service connection for degenerative disc disease of the cervical spine with stenosis of the thoracic and cervical spine, the appeal must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Duties to Notify and Assist The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA’s duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As noted above, the Board finds that, at the very least, substantial compliance with the June 2016 and December 2018 Board remand directives was obtained. Stegall, 11 Vet. App. 268 (1998); Dyment, 13 Vet. App. 141, 146-47 (1999). Additionally, the Veteran has not raised any issues with the duty to notify or duty to 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.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.