Citation Nr: 21001463 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 15-05 874 DATE: January 8, 2021 ORDER Entitlement to service connection for a neck disorder is denied. REMANDED Entitlement to service connection for ulcerative colitis is remanded. FINDING OF FACT The most probative evidence of record is against a finding that a current neck disorder is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a neck disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from January 2003 to January 2006, during which he received a Combat Infantry Badge, among other medals. He also had additional Reserve service. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in October 2012 and November 2012. The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in March 2018. A transcript is of record. These claims were last before the Board in June 2018 where they were remanded for additional development. 1. Entitlement to service connection for a neck disorder The Veteran contends that his neck disorder is related to his service. He stated his symptoms began around April 2004 during active duty where he was involved in a firefight and jumped over a 2 foot berm for cover only to discover there was a 10 foot drop on the other side. He said he fell and when he hit the ground, he landed on his upper chest area, and the heavy radio he was carrying came down on the back of his neck, the base of his head, and his lower back. See March 2018 Hearing Transcript. Here, the Veteran had active service in Iraq from November 2003 to November 2004. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). However, a 2019 VA examination shows the Veteran has a diagnosis of cervicalgia and mild early arthritis, and a 2014 examination diagnosed cervical strain. As these are diagnosed conditions, they cannot be considered an undiagnosed illness. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of cervicalgia and mild early arthritis, and evidence shows that an in-service neck injury occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of cervicalgia and mild early arthritis began during service or is otherwise related to an in-service injury, event, or disease. Treatment records show the Veteran was not diagnosed with cervicalgia until March 2010, two years after his separation from service, and he was not diagnosed with arthritis until 2019, a decade after his separation from service. While the Veteran is competent to report having experienced symptoms of pain consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of mild early arthritis. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the June 2019 VA examiner opined that the Veteran’s neck disability is not at least as likely as not related to an in-service injury, event, or disease, including an in-service neck injury. The rationale was that the neck disability is more likely than not due to “normal progression and degeneration as seen in the general population and related to aging, genetics, and a lifetime of wear and tear.” See June 2019 VA examination. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no opinion of record to the contrary. As a final matter, as stated above, a 2019 VA examination shows the Veteran has a diagnosis of cervicalgia and mild early arthritis, and a 2014 examination diagnosed cervical strain. As these are diagnosed conditions, the Veteran’s neck disability cannot be considered an undiagnosed illness. 38 C.F.R. § 3.317(a)(1)(ii), (a)(2)(ii). In sum, there is no competent evidence of record establishing that the Veteran’s neck disability had an in-service onset or is otherwise related to his service. Accordingly, the preponderance of the competent and probative evidence is against the Veteran’s claim, and service connection for a neck disability is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 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). REASONS FOR REMAND 1. Entitlement to service connection for ulcerative colitis is remanded. The Veteran is seeking entitlement to service connection for ulcerative colitis. The Board finds that additional opinion is needed prior to adjudication of this claim. In accordance with prior remand instructions, an opinion was obtained in April 2019. The VA examiner was instructed to determine whether the Veteran’s ulcerative colitis had its onset during active service or is related to any in-service disease, event, or injury. The VA examiner opined that the Veteran’s ulcerative colitis was less likely than not related to his service. The rationale was that “there is no mention of his [gastrointestinal] problems found in any of his reviewed Service treatment records” and that “[n]o formal documentation is found that he had/sought help for his intestinal issues while in the service.” The VA examiner additionally stated that “[m]any issues can cause GI conditions, what is needed is documentation of course and symptoms, with eventual diagnosis. There is no independent [documentation] of the Veteran’s issues, either on deployment or on return home. It is not possible to determine when the ulcerative colitis actually began.” However, a medical examiner should not rely solely on the absence of medical records corroborating that something occurred to conclude that there is no relationship between the appellant’s current disability and his military service. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). As such, an additional opinion is warranted.   The matter is REMANDED for the following action: 1. Obtain an addendum medical opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s ulcerative colitis had its onset during active service or is related to any in-service disease, event, or injury. The examiner should explain why or why not. The VA examiner should not solely rely on the absence of medical records corroborating the Veteran’s in-service symptoms, and should consider the following: (a.) the Veteran’s March 2018 testimony that he had symptoms in service that continued until he was diagnosed in 2009, and that he was misdiagnosed on several occasions before that; (b.) the Veteran’s wife’s March 2018 statement that the Veteran complained of multiple gastrointestinal problems, to include nausea, diarrhea, cramping, loss of appetite and abdominal pain, from the time they met in June 2006; (c.) and the Veteran’s brother’s March 2018 statement that the Veteran never complained about gastrointestinal issues before service and when he visited the Veteran during the summer of 2005, the Veteran complained of stomach problems and his brother witnessed the Veteran using the restroom several times a day for extended periods of time.   2. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, 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.