Citation Nr: 20022475 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 15-07 668 DATE: April 1, 2020 ORDER Entitlement to service connection for a cervical spine disability is denied. REMANDED Entitlement to a rating in excess of 10 percent for crural epidermophytosis is remanded. FINDING OF FACT The Veteran’s cervical spine disability did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 1972 to April 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran testified before a Board hearing. A transcript of the hearing has been associated with the claims file. However, the Veterans Law Judge (VLJ) who conducted the hearing and signed the previous Board remand is no longer available to participate in the Veteran’s appeal. The Veteran was given another opportunity to appear at a hearing before a VLJ who would decide the claim. See February 2020 BVA Letter. However, the Veteran did not invoke his right to appear at an additional hearing, and as such, the Board will proceed with adjudication. The Board observes that additional VA medical records were received following the last adjudication by the RO in the October 2019 supplemental statement of the case. The Board has reviewed these records and observes that they are duplicative, cumulative, and/or not pertinent to the issues on appeal addressed in the decision below. Service Connection Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. 1. Entitlement to service connection for a cervical spine disability is denied. Regarding the first element of service connection, the medical evidence reflects a diagnosis of degenerative arthritis of the cervical spine and cervical stenosis. See June 2019 C&P Exam and October 2016 CAPRI. As such, the first element of service connection is met. Concerning the second element of service connection, a review of the service treatment records shows that the Veteran had normal neck with no complaint of arthritis in the September 1972 enlistment examination and April 1977 separation examination. See February 1980 STR. However, despite the relatively normal findings, the Veteran reported that he injured his neck in an in-service motor vehicle accident. See June 2011 NOD. The service treatment records do show that in November 1975, the Veteran was involved in a motor vehicle accident. However, there was no note or complaint of neck pain. See February 1980 STR. Regarding the third element of service connection, the Veteran was afforded a VA examination in June 2019 wherein the examiner diagnosed the Veteran with degenerative arthritis of the spine and cervical radiculopathy. The examiner opined that the Veteran’s cervical spine disability is less likely than not incurred in or caused by the in service 1975 motor vehicle accident. The examiner explained that although the service treatment records show that in 1975 the Veteran was involved in a motor vehicle accident, there is no evidence to suggest that the Veteran sustained any neck damage from this incident. Further, there is no evidence of chronicity of care. As such, the examiner determined a nexus has not been established. In contrast, in February 2018, the Veteran submitted a medical opinion from a private physician wherein the physician opined that the Veteran’s cervical pain is most likely caused by or a result of the 1975 motor vehicle accident. See February 2018 Medical Treatment Record – Non-Government Facility. The physician stated that the Veteran had a severe motor vehicle accident that resulted in a fracture of the left arm that required an internal fixation. The physician also stated that the Veteran suffered a whip lash injury that has affected the Veteran’s cervical area since then. The Board affords great probative value to the June 2019 VA examiner’s assessment as it is well supported by, and is consistent with, the most probative evidence of record. The most probative evidence of record reflects that although the Veteran had an in-service motor vehicle accident there were no complaints of neck pain in the two years subsequent to his accident while in service. In fact, the Veteran was noted to have normal neck in the April 1977 separation examination. See February 1980 STR. Accordingly, the Board affords great probative value to the June 2019 VA examiner’s medical opinion as his opinion is based on his examination of the Veteran and is consistent with a review of the Veteran’s file, including the Veteran’s statements. Conversely, the Board affords little probative value to the February 2018 physician’s medical opinion as the physician’s rationale was speculative at best. Despite the lack of any service treatment records of any complaint of neck pain or whip lash, the physician asserted that the Veteran suffered a whip lash injury. Even if the Veteran suffered a whip lash injury from the 1975 motor vehicle accident, a November 1982 VA examination showed no abnormalities or complaint regarding the neck. See October 1982 C&P Exam. As such, the Board gives low probative value to the February 2018 physician’s assessment as it is inconsistent with the more probative contemporaneous records. As for presumptive service connection based on chronic disease, the Board finds the preponderance of the evidence does not support a finding that the Veteran’s cervical spine disability manifested to a compensable level in the first post-service year. 38 C.F.R. § 3.309(a). Based on the records, the Veteran’s earliest medical record of a cervical related disability was in 1997, about 20 years after service. See June 1997 Medical Treatment Record –Government Facility. Further, a November 1982 VA examination showed no abnormalities or complaint regarding the neck. See October 1982 C&P Exam. Accordingly, there is no evidence of a cervical spine disability within the first post-service year and service connection based on the presumption in favor of chronic disease is not warranted in this case. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. In sum, the preponderance of the evidence is against a finding that his cervical spine disability was manifested during service or for many years thereafter and is not otherwise related to his active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The claim is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for crural epidermophytosis is remanded. The Board finds that the Veteran should be afforded another VA examination for his skin disability as the Veteran was not properly notified of his June 2019 examination in which he failed to appear. The record shows that the Veteran was notified twice for his VA examination of the cervical spine, for which he appeared, but no notice was sent to the Veteran as to his VA examination of the crural epidermophytosis. See June 2019 C&P Exam records. Accordingly, the Board finds that a remand is warranted. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the current severity of his service-connected crural epidermophytosis. All necessary testing must be accomplished. The claims folder must be reviewed in conjunction with the examination. If possible, the examination should be scheduled during a flare-up of the Veteran’s skin condition. If it is not possible to schedule the Veteran for a VA examination during a period of flare-up, the examiner should document the Veteran’s symptoms based on his description of symptoms during a period of flare-up. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, 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.