Citation Nr: 21001960 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-26 134 DATE: January 12, 2021 ISSUE Entitlement to service connection for degenerative disc disease of the cervical spine (hereinafter “cervical spine disability”). ORDER Entitlement to service connection for a cervical spine disability is denied. FINDINGS OF FACT The Veteran's cervical spine disability was not shown in service or within one year of separation from service and is not shown to be etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1977 to October 1981. The Veteran had additional service in the Washington Army National Guard from June 1991 to May 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a May 2017 Board Video Conference hearing. A transcript of that hearing has been associated with the claims file. This matter was previously before the Board in February 2018 and June 2020. In the February 2018 decision, the Board, in relevant part, remanded the Veteran’s claim for further development, including inter alia, obtaining outstanding records from the Federal Aviation Administration, Dr. M.B. or any other private healthcare provider identified by the Veteran that were relevant to his claim. The Veteran was also to be afforded a new VA examination with respect to his cervical spine disability. The Board observes that upon remand (February 2018), the RO attempted to obtain the above-mentioned records, and documented such attempts. However, the Veteran was informed in a December 2019 correspondence that that the FAA and Dr. M.B. indicated that no further records were available. See December 31, 2019 Correspondence. The RO provided the Veteran an opportunity to submit these documents, however, the Veteran did not do so. Additionally, the Veteran indicated in a report of general information that FAA did not have any of his records. See November 21, 2010 VA 27-0820 Report of General Information. In June 2020, the Board remanded the matter once again for the purpose of obtaining an addendum medical opinion to address the Veteran’s neck symptoms since separation from service, as required by the Board’s February 2018 remand directives. The Board is satisfied that there has been substantial compliance with the Board's remand directives. The matter has been properly returned for to the Board for appellate consideration and the Board is satisfied that there has been substantial compliance with the Board remand. Thus, no further action is required. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a cervical spine disability. The Veteran contends that his current cervical spine disability resulted from a February 13, 1981 Motor Vehicle Accident during service. See October 25, 2010, VA Form 21-526; December 15, 2010, VA Form 21-4176, Report of Accident Injury in Support of Claim; December 29, 2010 Statement in Support of Claim, VA Form 21-4138; See also May 2017 Board Hearing transcript, pgs. 5-7 & 17-21. The Veteran also contends that he had a lack of in-service complaints about his cervical spine disability because of a lack of diagnosis at the time and being discharged from service less than six months from the time of accident. Additionally, the Veteran asserted that as a pilot, one does not want to be grounded for a sore neck. See June 16, 2016 Lay Correspondence. The Veteran’s Military Occupational Specialty (MOS) was Utility Observation Helicopter Pilot, 3 years. See DD-214. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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 be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). 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(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed the entire record, with an emphasis on the evidence relevant to this appeal. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, in the present claim. The central issue in this case is whether there is a nexus between the Veteran’s current cervical spine disability and service, namely a February 13, 1981 motor vehicle accident. There is no dispute that the Veteran has a current disability. See January 2019 Back and Neck Conditions (Cervical Spine) Conditions Disability Benefits Questionnaire re: diagnosis of traumatic arthritis of the cervical spine, confirmed by X-ray, 2011; and cervical radiculopathy, diagnosed in 2019. See January 28, 2019 Back and Neck Conditions (Cervical Spine) Conditions Disability Benefits Questionnaire, pg. 1; See also January 23, 2020 Back and Neck Conditions (Cervical Spine) Conditions Disability Benefits Questionnaire re: diagnosis of degenerative arthritis of the spine and intervertebral disc syndrome, pg. 1. Hence, the first prong of service connection has been met in this case. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). With regards to the existence of the disease or injury in service, the Board finds that the second prong of service connection has arguably been met. February 1981 service treatment records report that the Veteran was involved in a motor vehicle accident and hurt his right shoulder. In this February 1981 treatment record, the Veteran was described as alert and oriented. His range of motion was described as intact. No other trauma was reported. See February 13, 1981 Service Treatment Record (STR). A February 20, 1981 service treatment record reports that the Veteran was taking medications status post car accident. It was reported that the Veteran hurt his shoulder. It was further reported that the Veteran had full range of motion with his shoulder. See February 20, 1981 Service Treatment Record (STR). March 1981 service treatment records note that the Veteran reported experiencing 1 to 2 headaches per day for 3 to 4 weeks, since he had his February 13, 1981 motor vehicle accident. The Veteran reported that he bumped his head during the accident. See March 23, 1981 STR. May 1981 service treatment records report that the Veteran reported a pulled muscle in his back. See May 5, 1981 STR. A June 1981 Report of Medical Examination noted for purposes of a Flight Physical reported no abnormalities on clinical evaluation with regards to the Veteran’s cervical spine. In this June 1981 examination the Veteran reported that he has informed the examination physician of any changes in health since the last examination. See June 10, 1981 Report of Medical History. A June 1991 Report of Medical Examination noted for purposes of enlistment to the Army National Guard revealed no complaints, diagnoses, treatment or abnormalities on clinical evaluation for any cervical spine disability. See June 11, 1991 Report of Medical Examination. In this June 1991 examination, the Veteran described his present state of health as good, no medications, no known allergies. See June 11, 1991 Report of Medical History. In June 1991 Correspondence from the Department of Defense it was reported that the Veteran “has been qualified for enlistment into any branch of the Armed Forces based on a physical examination conducted 11 June 1991. His Chest X-Ray at that time was also negative. I see no contraindication to undergoing hyperbaric chamber testing.” See June 20, 1991 Correspondence, Department of Defense. Post service, a November 1993 emergency room record from Samaritan Hospital notes the Veteran was rear-ended by a car while stopped. The Veteran reported pain in his right shoulder and “achy” neck and head. Acute cervical strain was diagnosed. A radiologic interpretation notes that “[t]here is no evidence of fracture, dislocation, destructive process or interspace pathology. The neural arches and neural foramina are normal.” The Veteran’s cervical spine was described as “normal”. See November 3, 1993 Emergency Room Admission record; See also, November 4, 1993 Radiologic Interpretation Report. The Board now turns to the VA examinations of record in the evaluation of this Veteran’s service connection claim for a cervical spine disability. The Veteran has been afforded VA examinations and Medical Opinions in March 2011, January 2019, January 2020 and August 2020 (followed by a September 2020 Clarifying Addendum Opinion) to determine the nature and etiology of his cervical spine disability. The March 2011 VA examination rendered a negative nexus opinion to service. However, the Board found this examination inadequate for adjudication purposes. Therefore, the Board does not find this March 2011examination probative as to the etiology of this Veteran’s cervical spine disability. In the January 2019 VA examination, the examiner noted review of the Veteran’s claims file and reported the Veteran’s description his medical history as follows: “he reports that he was in an MVA in February 1981. He was thrown from the vehicle. He sustained an injury to the neck and collar bone. He went to a clinic at the airfield and was told he was ok and sent home to recover. He returned to the clinic repeatedly with reports of pain in the neck and shoulder. He never had a neck XR until much later. He reports that he has had constant pain in his neck since the injury. He has lost considerable mobility in his neck. He gets excruciating pain radiating up the back of his head. He also states he gets episodes of numbness in both arms and hand. These episodes may last 60-90 seconds. Both civilian neurologist and VA neurologists have attributed these problems to the MVA. He takes Gabapentin 900 mg QID to prevent neuropathic pain. He cannot drive because of these problems. He cannot fly. He was a commercial Pilot until about 10 years ago. He cannot do any work above shoulder level due to limits in ROM at the neck.” See January 28, 2019 Neck (Cervical Spine) Conditions Disability Benefits Questionnaire, pg. 2. In this January 2019 VA examination, the examiner rendered a negative nexus opinion to service. The examiner reasoned that after noting careful review of the available medical records: “(1) There was no documented complaint of neck pain when the Veteran was seen after the MVA in 1981, either at the time of the injury or in subsequent visits. Therefore, a cervical spine injury related to the 1981 MVA cannot be established. (2) Medical records subsequent to the Veteran's military service clearly document that the Veteran was in a second MVA after discharge on November 3, 1993 in which he was rear ended by another car while he was stopped. The other car was traveling at 35 mph. This is sufficient force to cause a neck injury. The veteran was seen on the day of the MVA at Samaritan Hospital in Moses Lake Washington. He demonstrated significant posterior tenderness over the cervical spine at the time of the injury. An X ray of the neck at the time demonstrated a normal cervical spine and the Veteran was diagnosed with acute cervical strain. This incident occurred 12 years after the Veteran was released from active duty. If there had been a previous neck injury sufficient to cause long term damage to the Veteran's cervical spine evidence of this should have been present on XR by 1993. In 2008 the (15 years after the second MVA) the Veteran had an MRI of the Cervical Spine which showed multi-level degenerative disc disease of the cervical spine with multilevel mild to moderate spinal stenosis with several foci of near cord entrapment. No findings of cord compression. Associated multilevel foraminal narrowing is present with the possibility of impact upon multiple exiting cervical nerve roots. Based on a rational review of the available medical records, it is more likely than not that the current degenerative changes of the veteran's cervical spine with cervical radiculopathy were triggered by the documented cervical spine injury in 1993 and have been progressive since that time.” See January 28, 2019 Medical Opinion, pgs. 1-2. This January 2019 VA examination and medical opinion was followed by a January 2020 VA examination and medical opinion with regards to the nature and etiology of this Veteran’s cervical spine disability. In the January 2020 VA examination, the examiner noted review of all available records. The examiner also reported the Veteran’s medical history, as described by the Veteran as follows: “Veteran states that he was involved in a MVA in 1981 sustaining an injury to his neck and collar bone. He says that he was thrown from a Dodge Charger. He states that since then he has had issues. He says that if he turns his head wrong, he "can black out" Says this happened about 8-9 months after the MVA. He states that he also gets bell’s palsy related to his neck issues. He has not had any surgeries on the neck. States that both arms will go dead at times. This can last about a minute. This will be both arms at the same time. He says that he gets swallowing problems with food "getting stuck". Other records indicate that he was also in a MVA in 1991 as a civilian, he had pain in right shoulder and neck. was diagnosed with acute cervical strain. His C-spine x-rays at the time were negative. MRI report in 2008 a revealed multilevel degenerative change and facet disease.” See January 23, 2020 Neck (Cervical Spine) Conditions Disability Benefits Questionnaire, pg. 2. This January 2020 examiner rendered a negative nexus opinion to service. The examiner opined that it was less likely than not (less that 50 percent probability that the Veteran’s cervical spine disability was incurred in or caused by (the) "piece missing from the neck" due to MVA during service. The examiner provided the following reasoning for this nexus opinion: “while Veteran had a MVA in service there were no complaints of neck pain documented then or by discharge. Veteran had a significant neck injury in 1993 as a civilian and x-ray at that time was normal. Since there is nothing documented about the neck in service and there is a clear neck injury 12 years after discharge it is felt that current neck problems are less likely than not incurred in service.” See January 23, 2020 Medical Opinion, pgs. 1-2. Pursuant to the Board June 2020 remand directives, the Veteran was afforded an August 2020 Cervical Spine addendum medical opinion to specifically address (1) the Veteran’s symptoms since separation from service and (2) whether there was a bone missing from the Veteran’s cervical spine. In this August 2020 cervical spine addendum medical opinion, the examiner rendered a negative nexus opinion to service. The examiner provided the following rationale for this negative nexus opinion: “1. Cervical spine films done January 28, 2019 do not mention a missing bone or piece of bone in cervical spine. 2. In BVA Transcript May 18 2017 Veteran states on page 5 "Um, I’d been asked several times by doctors how I broke my collarbone, how I broke my neck, which there’s actually a piece missing from my neck, and I had to say that I didn’t know. Of course, they didn’t believe me, but, um, when I -- about ten years ago, I was told I should get my medical records. I did. And going through them, I saw that when I was seen for the car wreck, I was complaining for five or six weeks about neck and shoulder pain. In review of records, Veteran was seen on February 13, 1981 for the described MVA complaining of shoulder pain. He was seen again on February 20, 1981, only complaint was noted was the shoulder. He was seen again on March 23, 1981 with complaints of headaches that he says started after the MVA, it is commented that there is some mild bilateral occipital tenderness, but no complaints of neck pain or exam concerns of neck issues. He was seen again March 30, 1981 for the headache. He was seen June 10, 1981 for a flight physical, no neck or spine complaints noted or positive exam findings. So, the statement that the Veteran makes that he was complaining for five or six weeks about neck and shoulder pain is not substantiated by the medical records available in VBMS. He was again seen for a possible reentry exam June 11, 1991 and no neck complaints were noted. It is shown in available medical records as previously noted that he was in a MVA as a civilian and did have significant neck complaints at that time. It is felt that that injury is the beginning of the now diagnosed cervical disc disease and arthritis. Since there is nothing in available medical records from the time of the MVA February 13, 1981 until the civilian MVA to indicate that there were neck issues it is still felt less likely than not that in-service injury or event was the cause of the current findings.” See August 6, 2020 addendum medical opinion, pgs. 1-2. In a September 24, 2020 addendum clarification Disability Benefits Questionnaire, the examiner reported that it is felt that the degenerative disc disease of the cervical spine is less likely than not incurred in or caused by in-service event or injury. See September 24, 2020 Addendum Clarification. The Board notes that this September 24, 2020 clarifying addendum opinion was obtained because the VA examiner incorrectly indicated in the August 6, 2020 addendum opinion that the Veteran’s cervical spine disability was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The Board observes however that the examiner’s rationale in the August 6, 2020 addendum opinion clearly explained the basis for a negative nexus opinion, concluding in this same medical opinion that “it is still felt less likely than not that in-service injury or event was the cause of the current findings.” See August 6, 2020 Addendum Opinion, pgs. 1-2. Analysis In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board finds the January 2019 VA examination and medical opinion, January 2020 VA examination and medical opinion, taken together with the August 2020 addendum medical opinion highly probative and persuasive as to the nature and etiology of this Veteran’s cervical spine disability. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Each VA examiner opined against a nexus between the Veteran's active duty service, namely the February 13, 1981 motor vehicle accident and his current cervical spine disability. The Board observes that the January 2019 VA examiner, after noting review of all available medical records and taking into consideration the Veteran’s description of his medical history, provided a detailed explanation as to why the Veteran's current cervical spine disability is more likely related to more recent trauma (1993 MVA) than his in-service incident. The examiner explained in this rationale that “if there had been a previous neck injury sufficient to cause long term damage to the Veteran's cervical spine, evidence of this should have been present on XR by 1993.” See January 28, 2019 Medical Opinion, pgs. 1-2. The Board observes that the January 2020 VA examiner explained, after noting review of all available medical records and taking into consideration the Veteran’s description of his medical history, that the Veteran had a significant neck injury in 1993 as a civilian and x-ray at that time was normal. Since there is nothing documented about the neck in service and there is a clear neck injury 12 years after discharge, it is felt that current neck problems are less likely than not incurred in service. See January 23, 2020 Medical Opinion, pgs. 1-2. Pursuant to the Board’s June 2020 Remand directive, the August 2020 VA examiner specifically considered the Veteran’s lay contentions since service, referring directly to the Veteran’s May 2017 Board Hearing testimony as to the etiology of his cervical spine disability. The examiner notwithstanding concluded that “it is shown in available medical records as previously noted that he was in a MVA as a civilian and did have significant neck complaints at that time. It is felt that that injury is the beginning of the now diagnosed cervical disc disease and arthritis.” See August 6, 2020 Addendum Opinion, pg. 2. It is clear that the Veteran believes that a nexus exists between his cervical spine disability and service (specifically his February 13, 1981 motor vehicle accident). Such a lay belief sometimes is sufficient. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). It indeed is error to suggest that lay evidence can never be enough to establish that there is a nexus between a claimed condition and service. See Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). However, the causal relationship between degenerative arthritis of the cervical spine and the Veteran’s active duty service is a complex medical issue for which the Veteran is not qualified to offer an opinion. Thus, while the Board has considered the Veteran's statements, including his May 2017 Board Hearing testimony and June 16, 2016 written correspondence, it finds the January 2019 VA examination and medical opinion, January 2020 VA examination and medical opinion, taken together with the August 6, 2020 VA addendum medical opinion to outweigh them. The Board further finds that presumptive service connection is not warranted because the evidence does not show that the has a diagnosis of arthritis becoming manifest to a degree of 10 percent of more within one year from the date of separation. The Board notes that the Veteran was not diagnosed with degenerative arthritis of the cervical spine for many years post service. Although the Veteran has complained of continuous neck pain, he did not report any complaints of cervical neck pain on his June 1981 Flight Physical. As noted earlier in this decision, the Veteran reported in this examination that he has informed the examination physician of any changes in health since the last examination. See June 10, 1981 Report of Medical Examination. Additionally, at his June 1991 enlistment physical, for purposes of enlistment to the Army National Guard, the Veteran did not report any complaints with regards to a cervical spine disability. The Veteran described his present state of health as good, no medications, no known allergies. See June 11, 1991 Report of Medical History. A June 1991 letter from the Department of Defense notes the Veteran “has been qualified for enlistment into any branch of the Armed Forces based on a physical examination conducted 11 June 1991. His Chest X-Ray at that time was also negative. I see no contraindication to undergoing hyperbaric chamber testing.” See June 20, 1991 Correspondence, Department of Defense. (Continued on next page.) In the instant case, medical evidence does not corroborate neck pain beginning until 1993, 12 years post service. Hence, the Board finds that the Veteran's cervical spine disability is not etiologically related to service and did not manifest within one year of separation from active service. For the reasons stated above, the Board finds that the preponderance of the evidence is against the Veteran's cervical spine disability service connection claim; therefore, the benefit of the doubt provision does not apply. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.