Citation Nr: 20007064 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 14-26 150 DATE: January 28, 2020 ORDER Service connection for a neck condition claimed as an impinged nerve, to include as secondary to service-connected degenerative disc disease (DDD) of the lumbar spine, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s neck condition is proximately due to, or aggravated by, his service-connected DDD of the lumbar spine, or otherwise etiologically related to his service. CONCLUSION OF LAW The criteria to establish service connection for a neck condition claimed as an impinged nerve, to include as secondary to service-connected DDD of the lumbar spine, have not been met. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1969 to August 1971. This matter was before the Board of Veterans’ Appeals (Board) in March 2018 and remanded for a VA examination and to undertake appropriate steps to obtain the Veteran’s prison medical records from the Arizona Department of Corrections (ADOC) from January 1987 to September 2011. The VA examination was provided in September 2018. An August 2018 letter asked the Veteran to complete and return the enclosed VA Form 21-4142 necessary to obtain ADOC medical records. Alternatively, the Veteran was asked to submit copies of his ADOC medical records that are in his possession. The Veteran was informed that if he failed to respond within thirty days, a decision may be made on his claim. As of the date of this decision, the Veteran neither submitted the requested VA Form 21-4142 nor did he submit any ADOC medical records. A supplemental statement of the case was issued to the Veteran in September 2019. Additional development having been completed in accordance with the March 2018 Board remand, this matter is now before the Board. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "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. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Additionally, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third elements discussed above. Savage, 10 Vet. App. at 495-96. The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service connection for a neck condition claimed as an impinged nerve, to include as secondary to service-connected DDD of the lumbar spine, is denied. The Veteran contends that his claimed neck condition is secondary to his service-connected DDD of the lumbar spine or is otherwise related to his service. VA medical records indicate that the Veteran has had a diagnosis of cervical spondylosis since at least October 2011, although the date of onset is not known. Thus, the first element of secondary service connection is met. The Veteran’s DDD of the lumbar spine is service connected. Thus, the second element of secondary service connection is met. The question before the Board is whether there is medical nexus evidence establishing a connection between the Veteran’s cervical spondylosis and his service-connected DDD of the lumbar spine. The preponderance of the evidence is against the claim on this theory of entitlement and the appeal will be denied. In an April 2012 VA examination, the examiner reviewed the Veteran’s medical history. After a clinical evaluation of the Veteran, the examiner opined that the Veteran’s condition is less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner noted that service treatment records (STRs) do not confirm evidence of a neck injury in-service. The examiner also noted that VA medical records do not indicate a relationship of cause or aggravation by the lumbar spine. The examiner stated that there is no rationale that would explain a relationship between the Veteran’s neck condition and his service-connection lumbar spine disability. There is no competent medical evidence that relates the Veteran’s claimed neck condition to his service-connected DDD of the lumbar spine. The preponderance of the evidence is against a finding that the Veteran's current neck condition was caused or aggravated by a service-connected disability. VA treatment records document that since 2011, the Veteran has complained of, and has been treated for, a neck condition. However, the competent medical evidence, namely the April 2012 VA medical opinion, does not show a relationship between the Veteran’s claimed neck condition and his service-connected DDD of the lumbar spine. For this reason, the Board finds that service connection on a secondary basis for a neck condition under 38 C.F.R. § 3.310 is not warranted. Despite the Veteran's lay assertions, there is no basis upon which to grant the claim for secondary service connection for a neck condition. The Veteran contends that he was treated for his neck condition while in the custody of ADOC. However, the Veteran did not provide the documentation necessary to obtain any information related to his treatment while in the custody of ADOC, and he has not otherwise provided any documentation that he may have pertaining to that treatment. However, failure to meet the requirements of service connection on a secondary basis does not preclude consideration of service-connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Aside from his claim for secondary service connection, the Veteran contends that his neck condition shares an etiology with that of his DDD of the lumbar spine disability. Specifically, the Veteran contends that his neck was injured in-service when, in December 1969, heavy bags fell onto him. Additionally, the Veteran contends that he was further injured in an incident in-service of the same month and year when a sack of potatoes fell onto him. The Veteran’s November 1969 enlistment evaluation is absent of any complaints, treatment, or diagnosis of any neck condition. The Veteran’s July 1971 separation examination indicates recurrent back pain. The Veteran stated that he was in a bus accident in 1965. The Veteran’s STRs indicate that he was evaluated for a back injury in December 1969 when heavy bags fell onto him. It was noted that the Veteran reported chronic back ache for four to five years at the time. December 1969 STRs also indicate that the Veteran underwent physical therapy for his low back and indicate that the Veteran had a back x-ray, which was noted as normal. The Veteran reported recurrent back pain at the time. A March 1970 STR indicates treatment for back pain. Overall, the Veteran’s STRs indicate treatment for low back/lumbar pain and ache. However, the Veteran’s STRs are absent complaints, treatment, or diagnosis of any neck/cervical condition. The Veteran contends that he was treated while in the custody of ADOC. However, as discussed above, the Veteran has not provided the necessary documentation to obtain information related to his treatment while in the custody of ADOC, and he has not otherwise provided any documentation that he may have pertaining to that treatment. As noted above, VA medical records indicate treatment for a neck condition as early as 2011, with onset unknown. In a September 2018 VA addendum opinion, the examiner stated that the Veteran's claims file was reviewed. The examiner's review of the record is evident in the detail provided in the opinion. The examiner noted that there is no indication of neck pain in the Veteran's STRs. The examiner noted that there is a medical note from December 1969, which indicates pain in the right trapezius muscle and a medical note from December 1971, which indicates a pronounced curvature of his dorsal and lumbar spine and that he was very tender over the spine and most of the back. However, the examiner noted that there are no comments specifically pertaining to neck pain. Given this, the examiner opined that it is less likely as not that the Veteran's current neck pain is a continuation of neck pain from military service. The examiner stated that there are no comments regarding neck pain in the Veteran's STRs. The only evidence supporting the Veteran's contention that his current neck condition is related to his active duty service are his own lay assertions. Lay evidence may be competent to establish medical etiology or nexus. However, given that the Veteran has not demonstrated that he has special medical training or expertise, the Board must find that he is not competent to provide a medical opinion as to the etiology of his neck condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, his lay assertions have little probative value. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for a neck condition on either a secondary basis or direct basis. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.