Citation Nr: 20004435 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 12-08 216A DATE: January 21, 2020 ORDER Service connection for a cervical spine disability, to include as secondary to congenital bilateral L5 pars interarticularis defect with spondylolysis and degenerative arthritis, is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The Veteran’s cervical spine disability did not begin during service, is not related to service in any other way, and is not related to either his service-connected lumbar spine disability or any other service-connected disability. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability, to include as secondary to congenital bilateral L5 pars interarticularis defect with spondylolysis and degenerative arthritis, have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to November 1970. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office. In August 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. The matters on appeal were remanded in March 2017. 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 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 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, the benefit of the doubt is afforded the claimant. In his March 2008 claim, the Veteran stated that, in service, he “worked with [a] mechanical division where [he] was required to lift and carry machine and truck parts,” and “[i]t was about this time that [he] started having trouble with [his] neck…” In a September 2008 statement, the Veteran asserted that his cervical spine disability was “(in [his] and [his] chiropractor’s opinion) secondary to the direct change of gait and stance from his LS-S1 problems.” During his August 2016 hearing, the Veteran testified that he had intermittent neck pain, and that when he “began to have problems with [his] neck and neck pain,” he saw a doctor, and his doctor told him that his back and neck pain could change his gait to avoid pain. The Veteran is service-connected for congenital bilateral L5 pars interarticularis defect with spondylolysis and degenerative arthritis, rated 10 percent. Service treatment records reflect no complaints or findings relating to the neck or cervical spine. They do contain an October 10, 1970, X-ray report reflecting that the Veteran had had back pain and stated that he had injured his back while working on a truck. Also, an October 12, 1970, note indicates that the Veteran had been seen on several occasions for lower lumbar pain. On examination, he was noted to have had no low back pain, but rather pain secondary to acute lifting injury felt over the left posterior ribs and muscles at about T-5; the impression was muscle sprain plus asymptomatic spondylosis, and he was given light duty for 5 to 10 days. On examination for separation from service, the Veteran was noted to have had a normal clinical evaluation of the neck, no neck or cervical spine problems were noted, and the Veteran reported that his “condition is good.” Post-service, in December 1970, the Veteran filed several service connection claims, including for a “back injury.” On May 1971 VA examination in connection with that claim, he reported injuring his back in Vietnam when his truck was stuck by a mine, and it was noted that previous complaints of dorsolumbar spine had subsided. He underwent examination of the lumbosacral spine. There were no reports or findings related to the cervical spine or neck. The Veteran submitted private chiropractic records dated from 1994 to 2006 documenting numerous visits for treatment of low back pain. Such records reflect that the Veteran also reported “some neck pain” when moving it to the left in June 1994; neck stiffness on two visits in January 2002; and right-side neck stiffness in November 2003. On January 2019 VA examination, the Veteran reported that, in service in Vietnam in 1970, he was blown out of a truck after running over a land mine, and was stiff and sore after and saw a paramedic but that not much was done. He stated that his neck pain really started flaring up soon after he was discharged from service, and that he had been to a chiropractor, but that he had gotten use to the pain and had not been seen recently for treatment. He reported current nagging, aching pain daily on the paraspinal musculature of the neck, and limited range of motion when his pain was high or he was feeling stiff. Following examination, including X-rays, the examiner diagnosed cervical spine degenerative arthritis, with compromise of the C6-7 bilateral neural foramina. The VA examiner, in the January 2019 report and an April 2019 addendum, opined that the Veteran’s degenerative arthritis of spine with compromise of C6-7 bilateral neural foramina was not related to service and not caused or aggravated by his service-connected lumbar spine disability. The examiner explained that the Veteran’s cervical spine disorder was diagnosed 48 years after discharge from service and had no nexus to service, with no record of care of a neck condition during service or at discharge exam. He further explained that arthritis in one joint does not cause arthritis in another joint; the medical literature did not support this. He stated that there was no anatomic continuity between the cervical spine and the lumbar spine, as they were separated by the thoracic spine, and that there would be no effect on the neck from the spondylosis and degenerative joint disease of the lower lumbar spine. Thus, according to the examiner, degenerative arthritis in the lumbar segment of the spine would have no impact on the development or progression of the degenerative arthritis of the cervical spine. Service connection for a cervical spine disability, to include as secondary to congenital bilateral L5 pars interarticularis defect with spondylolysis and degenerative arthritis, is denied. Regarding the Veteran’s contention that his cervical spine disability is secondary to his service-connected lumbar spine disability, the Board finds the January 2019 VA examiner’s opinions persuasive. The examiner reviewed and cited to the record, and provided a clear rationale for why the Veteran’s lumbar spine disability would not affect his cervical spine disability, based on medical principles regarding the specific nature and pathology of the different segments of the spine. Furthermore, there is no competent evidence, such as a medical opinion, contradicting the examiner’s opinion. There is otherwise no evidence supporting the Veteran’s assertions that his cervical spine disability is secondary to his lumbar spine disability, aside from his own general assertions that it was “(in [his] and [his] chiropractor’s opinion) secondary to the direct change of gait and stance from his LS-S1 problems,” and that his doctor told him that his back pain and neck pain could change his gait in a certain way. There is no medical opinion or other such competent evidence that the Veteran’s lumbar spine disability has altered his gait or stance in any way that has affected his cervical spine disability, including from any chiropractor, despite the Veteran’s assertions. On the contrary, on both the Veteran’s most recent April 2016 VA examination of his lumbar spine disability and the January 2019 examination, it was noted that his lumbar spine and cervical spine disabilities, respectively, did not result in abnormal gait, and there was noted not be any disturbance of locomotion, instability of station, or interference with standing. On neither examination—and nowhere else in the medical record, including years of chiropractic treatment records for the lumbar spine—did the Veteran report, or was it observed, that he had any change or abnormality in stance or gait due to a spine disability or otherwise, and nowhere is there a medical notation of the lumbar spine in any way affecting the cervical spine. The Board notes the Veteran’s assertions that, in service, (1) he “worked with [a] mechanical division where [he] was required to lift and carry machine and truck parts,” and that “[i]t was about this time that [h]e started having trouble with his neck,” and (2) that his neck pain began following an incident whereby he was thrown from a truck, even though his neck pain really started flaring up soon after he was discharged from service. However, the Board finds such assertions of his neck pain beginning in, or shortly after, service not credible. Initially, as noted above, even though the Veteran had been treated on several occasions for low back pain from an injury while working on a truck, service treatment records contain no complaints or findings relating to the neck or cervical spine and, on examination for separation from service, the Veteran was noted to have had a normal clinical evaluation of the neck and no neck or cervical spine problems were noted or reported. Furthermore, while the Veteran specifically filed claims for a back injury following service in December 1970, and several other service connection claims, and underwent VA examination relating to his history of lumbosacral spine complaints, he filed no claim, and reported no problems, relating to the neck or cervical spine; these facts weigh against the Veteran’s assertion that he was, in addition to low back pain, experiencing continuous neck pain from service. The earliest documentation of any neck pain is dated in June 1994, almost 25 years after service. Furthermore, the Veteran’s assertions of back pain since service have been inconsistent with each other and with his other statements, including his assertions and testimony before the Board that his cervical spine problems were the result of his lumbar spine disability. In March 2008, he reported that he first began having problems with his neck working in a mechanical division from lifting and carrying machine parts, and on January 2019 examination indicated that his soreness was related to an incident of being thrown from a truck. In addition to being inconsistent with each other, both statements are inconsistent with the Veteran’s statement and testimony that his neck problems resulted from an altered gait due to his lumbar spine disability, and that he saw a doctor for his neck pain when it began. Such inconsistency further weighs against the credibility of the Veteran’s assertions of any continuity of neck pain since service or shortly after service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (in analyzing credibility, the Board is justified in taking into account multiple factors, including lack of contemporaneous medical evidence, possible bias, and inconsistencies within the record). Given the above, the Board finds that a preponderance of the evidence is against a finding that the Veteran’s cervical spine disability began during service or is related to service in any other way, or is related to his service-connected lumbar spine disability or any other service-connected disability. Accordingly, service connection for a cervical spine disability, to include as secondary to congenital bilateral L5 pars interarticularis defect with spondylolysis and degenerative arthritis, must be denied. REASONS FOR REMAND Entitlement to service connection for GERD, to include as secondary to PTSD, is remanded. In its March 2017 remand, the Board requested a VA examination to determine the nature and etiology of any upper gastrointestinal (GI) disorder, to include GERD. After reviewing the claims file, to specifically include the February 1985 private upper GI series indicating a 5-centimeter axial type hiatal hernia that was associated with a mild degree of gastroesophageal reflux, the examiner was to determine whether any current upper GI disorder, to include GERD, was proximately due to, or aggravated by, the Veteran’s service-connected PTSD. A VA examination was provided in January 2019. The examiner, after reviewing the record and examining the Veteran, determined that the Veteran’s GERD was not caused or aggravated by his PTSD. The examiner noted his GERD was “more likely than not due to his confirmed hiatal hernia per the Upper GI series completed on 02/22/1985 than PTSD,” describing the mechanism by which hiatal hernia leads to acid reflux. However, the examiner additionally stated: “I am unable to opine if PTSD any any [sic] impact on his diagnosis as his medical records regarding this condition are severely lacking. It is less likely than not that his GERD was caused or aggravated by his PTSD. A nexus has not been established.” The examiner’s concluding statements make it unclear as to whether he was able to provide an opinion as to whether or not the Veteran’s PTSD has affected his GERD or whether his opinion was that it did not affect his GERD, as they appear to state both. In any case, no explanation was provided for why PTSD would likely not have aggravated the Veteran’s GERD, even if it was not the original cause. Therefore, on remand, an opinion clarifying these matters must be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Forward the claims file to the VA examiner who provided the May 2019 opinion. If that examiner is not available, forward the claims file to another appropriate examiner. If the requested opinion cannot be provided without examination of the Veteran, schedule him for a VA examination with an appropriate examiner. After reviewing the claims file, the examiner should clarify his opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or more) that any current upper GI disorder, to include GERD, has been aggravated (i.e. worsened beyond its natural progression) by the Veteran’s service-connected PTSD. In so doing, the examiner should clarify the following remarks in his January 2019 opinion: “I am unable to opine if PTSD any any [sic] impact on his diagnosis as his medical records regarding this condition are severely lacking. It is less likely than not that his GERD was caused or aggravated by his PTSD. A nexus has not been established.” Specifically, the examiner should clarify (1) whether he is able to provide an opinion as to whether or not the Veteran’s PTSD has affected his GERD, or (2) whether his opinion was in fact that GERD did not affect his PTSD. For any answer given, the examiner should provide a full and clear explanation. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether inability to provide a more definitive opinion is the result of a need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. After completing the above and any other necessary development, readjudicate the appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, 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.