Citation Nr: 20006740 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 16-03 478 DATE: January 27, 2020 ORDER Entitlement to service connection for cervical discopathy, status post discectomy (cervical disability), to include as secondary to a service-connected degenerative disc disease, status post laminectomy L5-S, is denied. FINDING OF FACT The Veteran’s cervical spine disability is not secondarily related to his service-connected low back condition or to service. CONCLUSION OF LAW The criteria for service connection for a cervical disability, to include as secondary to service-connected low back condition, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to August 1968, including service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in June 2009 when it was remanded for additional development and in February 2011 when it was adjudicated on the merits and denied. In November 2014, the Veteran filed an VA Form 21-526EZ Application for Compensation and claimed entitlement to service connection for cervical degenerative disc disease as secondary to a low back condition. The Board notes that the Veteran had previously claimed entitlement to direct service connection for the cervical disability. In August 2018, the Board granted reopening of the issue of entitlement to service connection for a cervical disability when it determined that new and material evidence had been submitted to warrant reopening of the claim. The Board also remanded the matter to the RO for further development and to obtain a VA examination. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. The Veteran was granted entitlement to service connection for degenerative disc disease, status post laminectomy L5-S1 (claimed as a back condition) in a September 2012 Board decision. In March 1997, an MRI of the cervical spine performed by a private physician found disc herniation with cord compression and edema at C3-C4. Further, the physician acknowledged degenerative disc narrowing and bulging at multiple other levels superimposed on a diffuse congenital central canal stenosis which accentuates the changes at all levels. In the same month, the Veteran underwent an anterior cervical microsurgical discectomy and decompression, fusion human bone allograft C4-5 for his cervical disc herniation C3-4 with cord compression and cervical myelopathy. The Veteran underwent an MRI of the cervical spine by a private physician in September 1997. The physician noted slightly increased kyphosis at the C3-4 level and no evidence for recurrent herniation at C3-4 where discectomy has been performed. Further noted is persistent encephalomalacia of the left anterior cord and persistent cord impingement secondary to osteophyte at this level. The physician noted that there is persistent cord impingement at C4-5 and C5-6 secondary to spondylosis that is unchanged since prior study in March 1997. In November 2005, the Veteran submitted a lay statement and stated that he fell out of helicopter in Vietnam. He explained that he had no back or neck problems prior to that and for many years, the problems came and went but continued to worsen as he got older. He stated that he believes that his back and neck conditions are related because they came from the same accident. In a November 2005 VA treatment note addendum, the physician noted that the Veteran complained of chronic intermittent neck pain since a helicopter crash in Vietnam. He was diagnosed with chronic radiating neck pain. At an April 2011 VA spine examination for his lower back condition, the Veteran reported falling from a helicopter while it was in the air preparing to land. He explained that he had a radio pack on his back and landed on his back when he fell, and that he was treated with bedrest and pain medications. The Veteran continued to have back problems following the in-service accident. Significantly, the Veteran has notations of prescribed bedrest while at Fort Ord in his service treatment records, however the treatment was due to a left knee condition. In January 2015, the Veteran underwent a VA neck examination. The Veteran has diagnoses of status post anterior cervical microsurgical discectomy and decompression, fusion human bone allograft C4-5 in 1997 and degenerative disc disease with a date of diagnosis listed as 2005. The examiner provided a negative nexus opinion but rationalized that there was insufficient documentation in the file to confirm a service-related condition at this time. In the August 2018 remand, the Board found this opinion to be inadequate to decide the claim because the examination did not address whether the Veteran’s cervical disability could be caused or aggravated by his low back condition. In October 2015, the Veteran’s private physician provided a statement that the Veteran has repeatedly spoken about his cervical problems beginning in 1966 while stationed in Pleiku, Vietnam when he fell approximately 20 feet out of a helicopter onto his back while wearing a fully loaded pack, including a radio pack. The Veteran stated that he was placed on bedrest in Vietnam and bedrest when he was at Fort Ord and Fort Hunter Liggett. The physician opined that it seems logical that the incident where he fell from the helicopter contributed to the diagnosis of cervical degenerative disc disease. The August 2018 Board remand found this opinion to be inadequate to decide the claim because this opinion was based on assertions from the Veteran which the Board found not credible. In July 2019, the Veteran underwent a VA neck conditions examination. The examiner performed an in-person examination and reviewed the Veteran’s claims file to provide negative direct and secondary service connection nexus opinions. In the examination report, it is noted that all relevant visits and admissions were documented, but no admission from a fall from a helicopter in Pleiku or on his separation physical was noted. The examiner’s rationale for the direct service connection opinion was that there were no documented visits or admissions for a neck condition that would in any way be the possible initial injury which led to his current neck condition on active duty. The examiner also noted that the Veteran worked in a physical capacity until age 66. Regarding secondary service connection, the examiner’s rationale for the negative nexus opinion was that the Veteran was diagnosed with systemic lupus post-service and was on chronic high-dose prednisone for at least 5 years. The examiner stated that chronic high-dose prednisone doses lead to osteoporosis and degenerative disc disease. Further, the lumbar spine condition was discovered after the neck condition and surgery. The examiner explained that the spine is like a slinky, with 23 disks and 4 curves-two forward and two backward-which prevents forces from being transmitted from above to below or below to above. Hence, it is less likely that the neck condition is secondary to the back, especially in view of the fact that there is a more proximate cause as in chronic high-dose prednisone for a nonrelated condition. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The July 2019 VA opinion is based on a detailed and thorough examination of all private and VA medical evidence and took into consideration the Veteran’s lay statements. Though the Veteran’s private physician provided an opinion in October 2015, the physician’s opinion did not address the Veteran’s other medical conditions and the effects of such medication and was also based on the Veteran’s lay statements previously found not credible by the Board. Accordingly, the July 2019 VA neck conditions examination report is the most probative medical evidence of record, and the Board affords it significant probative value. In reaching its determination in this case, the Board has considered the Veteran’s lay statements. In his September 2005 Notice of Disagreement, the Veteran stated that he believes his neck injury began in service and was caused by falling out of a helicopter while in Vietnam. Notably, the Veteran reported to his private physician in October 2015 that he was prescribed bedrest due to the helicopter fall, but the Veteran’s service treatment records show that the bedrest was for a knee condition. The Veteran is certainly competent to describe lay observations of pain and injury, but he does not possess the training or credentials to competently diagnose a current condition or to ascertain the etiology of such condition. His lay contentions do not constitute competent evidence and thus lack probative weight in this regard. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Arthritis is a chronic disease pursuant to 38 U.S.C. § 1101 and 38 C.F.R. §§ 3.307, 3.309(a). For arthritis, the presumptive period is one year. 38 U.S.C. §§ 1112; 38 C.F.R. §§ 3.307(a)(3). Arthritis symptoms are first noted in the Veteran’s medical records in March 1997 and diagnosed in VA records in August 2005, over twenty years after separation from service. There is no documented evidence of arthritis in the one year following service. Therefore, the presumption that the Veteran incurred arthritis of his neck in service is not for application. 38 C.F.R. §§ 3.307, 3.309(a). The Board finds that the July 2019 VA opinion holds significant probative value. Accordingly, for the reasons described above, the preponderance of the evidence weighs against the Veteran’s claim, and the claim must be denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexis B. Markeson, Associate 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.