Citation Nr: 21000311 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-22 633 DATE: January 5, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. REMANDED Entitlement to service connection for a sinus disability is remanded. Entitlement to service connection for a headache disability is remanded. FINDING OF FACT The Veteran did not manifest a cervical spine disability during service and arthritis was not demonstrated within one year following his service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1986 to July 1987 with additional Navy Reserve and National Guard service. This appeal is before the Board of Veterans Appeals (Board) on appeal from a July 2013 Rating Decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran provided testimony before a Veterans Law Judge (VLJ) at a videoconference hearing. In correspondence dated in October 2020, the Veteran was notified that the VLJ who conducted the February 2017 hearing was no longer employed at the Board and given the opportunity to testify at another hearing. However, as the Veteran did not respond, it is assumed that he did not want another Board hearing. The record also reflects that the Veteran received correspondence from VA in October 2020 indicating that he could request a virtual tele-hearing instead of waiting for a Travel Board hearing. Upon further review, it was determined that the Veteran did not have a pending hearing request. As testimony as to the issues addressed herein was previously obtained at the February 2017 hearing, the transcript of that hearing has been considered as evidence in the current adjudication. Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2018); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, neither the Veteran nor his representative has raised any issues with regard to 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.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). These issues were previously before the Board in January 2019, at which time they were remanded in order to provide the Veteran with additional VA examinations. These examinations were obtained in November 2019 and January 2020. Thus, the Board finds that there has been substantial compliance with its previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a remand request is required). 1. Entitlement to service connection for a cervical spine disability The Veteran seeks entitlement to service connection for a cervical spine disability. Specifically, he contended that his current cervical spine symptomatology is due to physical activity, to include weightlifting and boxing, during active duty service. He stated that he sustained some strains during service but his complaints were not taken seriously and he was usually just given ibuprofen. Additionally, the Veteran indicated that his current cervical spine symptomatology may be linked to a February 1987 in-service accident in which he fell backwards from a chair and hit his head. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 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). Here, a review of the Veteran’ service treatment records do not reveal any complaints of or treatment for cervical spine symptomatology. A February 1987 treatment note confirmed that he fell backward from a chair and hit his head, after which time he lost consciousness for approximately one minute. However, his cervical spine was found to be within normal limits and he exhibited full range of neck motion. Significantly, on his April 1987 Report of Medical History at separation, the Veteran reported that he experienced a head injury and concussion in service but denied ever having experienced arthritis, rheumatism, bursitis, bone or joint deformity, or recurrent back pain. Similarly, his corresponding April 1987 Report of Medical Examination at separation indicated that his neck, spine, and other musculoskeletal groups were within normal limits. The Veteran underwent another examination for purposes of extension of enlistment in October 1987, at which time his neck, spine, and other musculoskeletal groups were again found to be within normal limits. On his corresponding October 1987 Report of Medical History, the Veteran denied ever having experienced arthritis, rheumatism, bursitis, bone or joint deformity, or recurrent back pain. The Veteran subsequently enlisted in the Navy Reserve and participated in active duty for training (ACDUTRA) from May 1988 to August 1988. Upon his separation from ACDUTRA, he was provided with another examination in July 1988, at which time his neck, spine, and other musculoskeletal groups were again found to be within normal limits. On his corresponding July 1988 Report of Medical History, the Veteran denied ever having experienced arthritis, rheumatism, bursitis, bone or joint deformity, or recurrent back pain. X-rays conducted in December 2011 revealed at least moderate degenerative changes at the lower cervical spine, with prominent disc narrowing and marginal osteophyte formation at C5-C6 noted. No fracture, subluxation, or paraspinous line widening was noted. A March 2012 addendum indicated that the X-rays revealed some narrowing of the neural foramen bilaterally at C7/T1, although it may have been the way the Veteran was positioned during the X-ray. It also showed some degenerative changes at the lower cervical spine and some changes which occur acutely with spasms in his neck. In March 2012, the Veteran underwent a baseline medical evaluation to establish medical care with VA. At that time, the Veteran reported pain in the left side of his neck and left arm which had its onset in January 2011 following a motor vehicle accident. The Veteran was provided with a VA Neck (Cervical Spine) Conditions examination in May 2013, at which time he was diagnosed as having mild osteoarthritis at C5-C6, C6-C7 and C7-T1 (with progression consistent with the natural history of this condition). At that time, the Veteran indicated that, “The neck thing didn't really start bothering me until 4 years ago.” He additionally reported suffering from a back injury while at work in 2002. Following examination of the Veteran and review of the claims file, the VA examiner opined that the Veteran’s mild osteoarthritis of the cervical spine was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. In support of this opinion, the VA examiner explained that: Although the veteran describes mild neck and back strain while in the service, his report and exam findings, along with all available records and multiple civilian medical provider's reports are consistent only with mild, acute strain during military service without persistent residuals. . . . The veteran's mild diffuse cervical, thoracic and lumbar osteoarthritis is entirely consistent with age, lifestyle and body habitus and has progressed as would be expected by natural history since it was first diagnosed during evaluation of his 2002 work related injury. In addition, cervical spine x-rays during military service (1987) note no osteoarthritis & no self-report or examiner noted condition of either the neck or back is noted at the time of military separation. In a September 2017 decision, the Board found that the opinion of the May 2013 VA examiner was inadequate because the examiner failed to consider the Veteran’s reports of neck pain during active duty service which have been ongoing. As such, the matter was remanded so that another VA examination could be provided. The Veteran was provided with another VA Neck (Cervical Spine) Conditions in November 2017, at which time he was diagnosed as having cervical degenerative disc disease as well as spinal stenosis. At that time, the Veteran reported that he first experienced neck pain at around 18 years of age and that it progressively worsened as he aged. He denied any specific injury; however, he attributed his pain to physical fitness, weightlifting, and boxing during his military service. However, the VA examiner opined that the Veteran’s cervical spine symptomatology was less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this opinion, the VA examiner explained that, “Veteran's lay statements were taken into account, but there was no evidence indicating treatment or diagnosis of a neck condition during active duty. Separation exam dated 4/23/1987 is silent for any complaints of a neck condition. More recent imaging indicates cervical disc degeneration, however, nearly everyone will get degenerative disc disease with age.” In a January 2019 decision, the Board found that the opinion of the November 2017 VA examiner was inadequate because it was based primarily on the absence of in-service documentation of cervical spine symptomatology and not explain why it rejected the Veteran’s competent reports of the onset of his symptomatology. As such, the matter was remanded so that another VA examination could be provided. Pursuant to the Board’s January 2019 Remand, the Veteran was provided with a Neck (Cervical Spine) Conditions examination in January 2020, at which time he was diagnosed as having degenerative arthritis of the cervical spine as well as spinal stenosis. At that time, the Veteran indicated that the onset of his cervical spine symptomatology was in 2010 or 2011, at which time he noted the gradual onset of numbness in his left hand which he attributed to positional changes. By 2012, this had progressed to pain in his neck radiating to his left shoulder, arm, and hand. However, the VA examiner opined that the Veteran’s cervical spine symptomatology was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this opinion, the VA examiner explained that: Treatment records and statements by the Veteran during his examination on 1/24/2020 indicate he did not experience neck pain until over 20 years after his time in the Naval Academy. His discharge physical from the Naval Academy is silent for neck pain. VA treatment notes, as well as notes from his Orthopedic Surgeon and Neurosurgeon also indicate onset of neck pain over 20 years after his military service. The Veteran's civilian disability claim, filed in 2010, makes no mention of neck pain or cervical radicular pain. This is again more than 20 years after his military service. It is more likely than not that his neck arthritis and related radicular pain is a result of normal aging, and is unlikely to be due to minor trauma during his year at the Naval Academy, either due to boxing or to his fall from a chair. There is no record of specific injury to his neck, or any neck pain after the head injury documented in 1987. Although the Veteran has speculated that this could have contributed to his pain, it is more likely than not that this is a result of normal aging, particularly given the duration of time between his military service and the onset of neck pain and radicular symptoms. The Veteran has established that he currently has a cervical spine disability. However, while the service treatment records establish that the Veteran injured his head during service, they do not disclose that the Veteran complained of or was diagnosed as having chronic cervical spine symptomatology in service. The record does not indicate, and the Veteran has not suggested, that he sought medical evaluation or treatment for cervical spine symptomatology within the first year following his service. To the contrary, his July 1988 examination upon separation from ACDUTRA found his neck, spine, and other musculoskeletal groups to be within normal limits. This evidence is unfavorable to a determination that cervical spine arthritis was manifested at all during the one-year presumptive period. Furthermore, the most recent VA etiological opinion obtained in January 2020 is entirely unfavorable to the claim. This opinion explained that it was more likely than not that his neck arthritis and related radicular pain was a result of normal aging, and was unlikely to be due to minor trauma during his year at the Naval Academy, either due to boxing or to his fall from a chair. The examiner emphasized that, by the Veteran’s own account, his cervical spine symptomatology did not manifest until over 20 years after his separation from active duty service. The January 2020 VA opinion includes specific discussion of the clinical facts of this case and sets forth the rationale underlying each conclusion. As such, the Board affords the January 2020 VA opinion great probative value. The Board acknowledges that the Veteran is competent to provide lay observations that he had neck pain in service and following service. However, as a lay individual, the Veteran is not competent to assign a medical diagnosis of a chronic cervical spine disability during his service, and is not competent to make a medical determination that the cervical spine pain experienced after service was a continuation of the same pathology that caused cervical spine pain in service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, the Board finds that the Veteran’s various reports of the onset of his cervical spine symptomatology lack credibility, as they have been internally inconsistent. For example, the Veteran initially reported that his symptoms had their onset following a motor vehicle accident in January 2011; then reported that he first experienced neck pain at around 18 years of age and that it progressively worsened as he aged at the time of his November 2017 VA examination; and most recently reported at the time of his January 2020 VA examination that he did not experience symptoms until over 20 years after his separation from service. See Caluza v. Brown, 7 Vet. App. 498 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board acknowledges that the absence of any corroborating medical evidence supporting the Veteran’s assertions, in and of itself, does not render his statements incredible, but that such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran’s lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). However, the Veteran’s statements regarding the onset of his cervical spine symptomatology are inconsistent with his other statements throughout the record, and therefore they are not credible. See Caluza, supra. The preponderance of the most persuasive evidence is against the claim. There is no reasonable doubt which may be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b). The persuasive unfavorable evidence addresses each theory of legal entitlement. The claim for service connection for a cervical spine disability must be denied. REASONS FOR REMAND The Veteran also seeks entitlement to service connection for a sinus disability and a headache disability. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. The Veteran contends that he has experienced sinus symptomatology since active duty service. The Veteran’s service treatment records reveal that he sought treatment for general malaise, fever, chills, nausea, vomiting, and frontal headaches for three days in May 1987, at which time he was diagnosed as having viral syndrome. A review of post-service treatment records reveals that the Veteran has regularly sought treatment for sinus symptomatology for approximately 20 years, which has been diagnosed as sinusitis, acute sinusitis, and recurrent sinusitis affecting the bilateral frontal and maxillary sinuses. In October 2001, he sought treatment for sinus congestion lasting three weeks, at which time he was diagnosed as having acute pharyngitis. In June 2002, he sought treatment for sinus congestion and painful sinuses, at which time he was diagnosed as having acute sinusitis. In January 2013, he sought emergency department treatment for nasal congestion, nasal drainage, throat irritation, dry cough, as well as aching, dull pain lasting five weeks. An emergency department note dated later in January 2013 indicated that the Veteran had a long history of recurrent sinus infections, and that he is afflicted with many sinus infections each year. The Veteran reported that his sinus infections were accompanied by subjective fevers, with some nausea and vomiting of thick yellow phlegm as well as a lot of sinus pressure under his brow and behind his eyeballs. In March 2017, the Veteran again sought emergency department treatment for sinusitis, at which time he reported a 21-day history of coughing, increased postnasal drainage, coughing with sore throats secondary to postnasal drainage, nonspecific entire cranial aching cephalgia, as well as pressure sensation to the bilateral maxillary and frontal areas. A December 2018 VA treatment note indicated that the Veteran had been dealing with a sinus infection for two weeks with no improvement, and that he had been seen in the emergency department in March 2017 and March 2018 for sinus infections as well. The record reflects that he has been prescribed antibiotics such as Zithromax (azithromycin) to treat his reoccurring sinus infections. On VA examination in May 2013, the examiner stated that the Veteran had recurrent episodes of clinically diagnosed sinusitis with computerized tomography (CT) scan showing apparent sinus disease beginning in 2001, more than a decade after discharge from service. On this basis, the examiner opined that the intermittent sinus condition was not caused by or permanently aggravated by military service. However, as the examiner's rationale did not take into consideration the Veteran's reports of the onset of sinus problems during active duty service, a September 2017 Board decision remanded the matter so that another opinion could be obtained. The Veteran was provided with another VA examination in November 2017, at which time he was diagnosed as having acute sinusitis. At that time, the Veteran reported that his congestion and headaches started at the Naval Academy, at which time he was treated approximately 2 to 3 times with antibiotics and ibuprofen, and that since then he had been seen numerous times for sinus infections and headaches. However, the VA examiner opined that the Veteran’s acute sinusitis was less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the VA examiner simply stated that, “During service, condition was acute only. There is no evidence of chronic sinusitis.” The Board again found this rationale to be inadequate and remanded the matter so that another opinion could be obtained from an otolaryngologist. The Veteran was most recently provided with a VA examination conducted by an otolaryngologist in November 2019, at which time he was diagnosed as having acute sinusitis. The Veteran reported that his initial onset was in boot camp in 1986, and that he had since experienced episodes of sinus symptoms with drainage and congestion every three months. However, the VA examiner opined that the Veteran’s sinusitis was at least as likely as not incurred in or caused by an in-service injury, event, or illness. In support of this opinion, the examiner explained that “A diagnosis of chronic sinusitis can not be established and therefore no etiologic relation of delayed onset recurrent acute sinusitis can be related to military service. Although the veteran claims onset of sinus symptoms in 1986, nasal and sinus problems were denied at discharge. It is therefore more likely than not that the patients delayed onset of recurrent acute upper respiratory/sinus infection is not related to military service.” Again, the Board finds that an addendum opinion is needed to clarify the November 2019 VA examination report. First, given the Veteran’s long documented history of several episodes of sinusitis per year manifested by headaches, sinus pain, sinus tenderness, and purulent discharge, the Board would find it helpful for the examiner to discuss the specific criteria used for diagnosing the Veteran as having “recurrent acute sinusitis” as opposed to “chronic sinusitis.” Second, the Board notes that its Remand instructions requested that the VA examiner acknowledge and consider that the Veteran is competent to report symptoms he experienced; if the examiner rejected the Veteran’s reports of sinusitis since service, then the examiner was asked to provide an explanation for such rejection. Here, the November 2019 VA examiner supported his negative nexus opinion simply by stating that nasal and sinus problems were denied by the Veteran at the time of his discharge from service in 1987. However, the Board emphasizes that the May 1987 service treatment record in which the Veteran sought treatment for general malaise, fever, chills, nausea, vomiting, and frontal headaches for three days included many of the symptoms currently associated with his diagnosed sinusitis. Also, the November 2017 VA examination report noted that the Veteran did experience acute sinusitis during his period of active duty service, although it did not opine as to whether the documented May 1987 symptoms were likely attributable to sinusitis. As such, on Remand, the otolaryngologist is asked to opine as to the likelihood that the symptoms of general malaise, fever, chills, nausea, vomiting, and frontal headaches documented on the May 1987 treatment note were manifestations of the Veteran’s later-diagnosed sinusitis affecting the bilateral frontal and maxillary sinuses, which has been manifested by headaches, sinus pain, sinus tenderness, purulent discharge, subjective fevers, as well as some nausea and vomiting of thick yellow phlegm. With respect to the claim of entitlement to service connection for a headache disability, the Veteran has indicated that this disability was caused or aggravated by his diagnosed sinusitis. Because a decision on the remanded sinus disability issue could significantly impact a decision on the issue of entitlement to a headache disability, the issues are inextricably intertwined. A remand of the claim of entitlement to service connection a headache disability is therefore also required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Additionally, the Board notes that the same otolaryngologist who provided the November 2019 opinion regarding sinusitis also completed a separate VA Headache examination report at that time. Significantly, the otolaryngologist diagnosed the Veteran as having migraine headaches, but then discussed the Veteran’s reported history of migraine headaches as well as tension headaches (which have both been diagnosed during the period on appeal). In doing so, the otolaryngologist recited the Veteran’s claims that his migraine headaches had their onset in 1986 during boot camp, while his tension headaches had their onset in 2011 due to back and neck problems. The otolaryngologist eventually concluded that there was no noted association of the Veteran’s acute episodes of sinusitis with aggravation of his chronic migraine headache condition, either acutely or chronically; however, he did not provide an opinion as to whether the Veteran’s diagnosed tension headaches were caused or aggravated by his service-connected degenerative arthritis of the lumbosacral spine, as suggested by the Veteran earlier in the report. As such, the otolaryngologist is asked to opine as to the likelihood that the Veteran’s headaches, to include tension headaches (diagnosed in the May 2013 VA examination), were caused or aggravated by his service-connected degenerative arthritis of the lumbosacral spine. The matters are REMANDED for the following action: 1. Refer the Veteran’s VA claims file to the otolaryngologist who conducted the November 2019 examination, or if unavailable, to another suitably qualified specialist, for an addendum opinion as to the etiology of the Veteran’s diagnosed sinusitis and headache disabilities. The claims file must be made available to the examiner for review and the examiner must state in the examination report that the claims file has been reviewed. If, after review of the claims file, the examiner determines that another VA examination is necessary, then such must be scheduled and the Veteran must be notified. Thereafter, the examiner is asked for the following: a. Discuss the specific criteria used for diagnosing the Veteran as having “recurrent acute sinusitis” as opposed to “chronic sinusitis” in light of the Veteran’s long documented history of several episodes of sinusitis per year manifested by headaches, sinus pain, sinus tenderness, and purulent discharge. b. Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sinusitis had its onset during, or is in any way related to, his military service. In providing this opinion, the examiner is specifically asked to address the likelihood that the symptoms of general malaise, fever, chills, nausea, vomiting, and frontal headaches documented on the May 1987 treatment note were manifestations of the Veteran’s later-diagnosed sinusitis affecting the bilateral frontal and maxillary sinuses, which has been manifested by headaches, sinus pain, sinus tenderness, purulent discharge, subjective fevers, as well as some nausea and vomiting of thick yellow phlegm. c. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's headache disability (to include both migraine headaches, as diagnosed in the November 2019 VA examination, and tension headaches, as diagnosed in the May 2013 VA examination) is proximately due to or aggravated (worsened) by any of the Veteran’s service-connected disabilities, to include degenerative arthritis of the lumbosacral spine. Rationale must be provided for all conclusions reached and the opinions proffered. In rendering the requested opinions, the examiner is advised to acknowledge and consider that the Veteran is competent to report symptoms he experienced. If the examiner rejects the Veteran’s reports, then the examiner must provide an explanation for such rejection. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, then the examiner must provide an explanation for the basis of that determination. (Continued on the next page)   2. When the development requested has been completed, review the claims remaining on appeal on the basis of receipt of additional evidence. If any benefit sought is not granted, then the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.