Citation Nr: 21003905 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 14-25 064A DATE: January 25, 2021 ORDER Entitlement to service connection for cervical spine disability, to include as secondary to service-connected bilateral knee disability, is denied. FINDING OF FACT The Veteran’s cervical spine disability is not etiologically related to service, did not manifest within one year of separation from active service, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1981 to June 1998. In April 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In January 2019 and October 2020, the Board remanded the claim for further development. Entitlement to service connection for cervical spine disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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). 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. Moreover, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if they are established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board.”). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The Veteran contends that his cervical spine disability is related to service or in the alternative, secondary to his service-connected bilateral knee disability. The Veteran has current diagnoses of cervical strain and degenerative changes. As such, element one under Shedden and Wallin is met. The Veteran is service connected for bilateral knee disability. As such, element two under Wallin is met. The Veteran’s service treatment records (STRs) document complaints, treatments, and/or diagnosis for neck strain. As such, element two under Shedden is met. During his April 1981 Report of Medical Examination: Enlistment examination, August 1984 RAP exam, and March 1986 and September 1989 Re-enlistment exams, the Veteran’s neck, spine and other musculoskeletal systems were clinically normal. In January 1988, the Veteran was seen for cervical spine injury. He stated that he suffered a weight-lifting injury. The radiological reported noted straightening but within normal limits. In January 1989, the Veteran was seen for neck pain he had been experiencing for a day. He initially injured his neck while weightlifting three weeks prior to his evaluation. The examiner noted marked spasms of cervical paraspinal muscles. The Veteran’s range of motion was down two degrees, and he experienced pain. However, his cervical spine x-ray was normal. He was diagnosed with cervical strain. He was instructed to temporarily stay away from lifting. In February 1991, the Veteran was seen for neck pain. The Veteran stated that he was lifting a heavy object. The examiner noted mild muscle spasms, mild point tenderness at the Veteran’s trapezes muscle, and pain with rotation to right and left. There was no radiating pain, swelling, or ecchymosis. The Veteran was diagnosed with pulled trapezes muscle in his upper back. He was prescribed Robaxin and motrin. In October 1996, the Veteran was seen for pain on the right side of his neck. He denied a history of injury to his neck. The Veteran stated that the pain occurred mostly at night when he rolled over when trying to sleep. X-rays revealed no fractures, avulsion, or dislocation. The Veteran was diagnosed with cervical strain. During his March 1998 Report of Medical Examination, Final Physical, the Veteran’s neck, spine, and other musculoskeletal system was clinically normal. The Veteran’s VA treatment records do not document complaints, treatments, or diagnosis for neck disability. The records note that the Veteran’s neck was supple, and he had no bruits or lymphadenopathy. The examiners also noted JVD or jugular venous pressure. In May 2008, the Veteran was seen at the Neurological and Spine Institute, L.L.C. for pain in his back and left leg. He also reported pain in his hip that radiated to his groin. The examiner noted that the Veteran’s neck flexion did not produce leg pain. In his June 2016 Statement of Accredited Representative, the Veteran through his representative, stated that the in-service cervical strain did not resolve. The representative further stated that the neck condition continued to be chronic in nature requiring additional treatment. On April 11, 2017, the Veteran was afforded a VA examination to determine the nature and etiology of his cervical spine disability. At the time of the examination, the Veteran stated that he had ongoing, progressively increasing posterior cervical spine pain since an unspecified sports injury in service. The examiner diagnosed the Veteran with cervical strain. During his April 19, 2019 testimony, the Veteran stated that he injured his neck in the early 80’s. He injured his neck while doing footlocker drills and re-injured it again while repelling. He stated that the second injury was worse, and since the second injury, his neck had been aggravating him. He stated that while in the military, he went to the doctor. But, he found out going to the doctor meant being prescribed Motrin and inflammation medicine. So, at the time of the hearing, he took inflammation medicine for his neck. Regarding treatment after service, the Veteran stated that within a year of discharge, he went to a VA medical center and saw a doctor about his neck. In 2008, he saw a spine specialist. In October 2018, the Board requested VA arrange for a general internist to provide an advisory medical opinion to determine whether it is at least as likely as not (50 percent probability) that the Veteran’s currently diagnosed cervical strain disability was:(i) caused by or is otherwise related to the Veteran’s active duty service or (ii) caused or aggravated by the Veteran’s service-connected knee disability. In January 2019, the Board noted that the VHA specialist stated that the cervical spine medical opinion was “not applicable to this viewing specialist and will be reviewed independent to this review,” i.e., an opinion was not obtained. The Board remanded the claim for further development. In October 2019, the Veteran was afforded a VA examination to determine the nature and etiology of his cervical spine disability. The Veteran stated that he injured his neck while in the Marines, i.e., he strained his neck while lifting foot lockers. He also stated that he sustained other injuries during training exercises. The Veteran sought care at the TMC for his neck pain. The examiner diagnosed the Veteran with cervical strain. The examiner opined that the condition claimed is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. The examiner stated that the Veteran had a diagnosis of cervical strain. Cervical strain is cause by over stretching of tendons and ligaments. Cervical strain may affect the upper extremities and cause pain and disability in the arms and hands, and knee pain may be aggravated by foot disorders. The examiner stated that there is no cause and effect relationship between cervical strain and knee disorders. The Veteran’s knee disabilities were caused by injury to the knees. The cervical strains documented in the STRs resolved with treatment. Imaging revealed degenerative joint disease. On October 15, 2020, the Board noted that the 2019 VA examiner did not discuss the aggravation aspect of secondary service connection. Additionally, the examiner did not discuss direct service connection. The Board remanded the claim so that VA could obtain an addendum opinion. On October 22, 2020, VA obtained an addendum opinion. The examiner confirmed the Veteran’s cervical strain diagnosis and degenerative change diagnoses. The examiner opined that it is less likely than not that the Veteran’s cervical spine condition was incurred in, caused by, or related to in-service injury, event, or illness. The examiner noted the Veteran’s contention, i.e., he injured his neck during bootcamp drills and re-injured it while repelling. The examiner stated that service records related to neck pain were reviewed. The Veteran’s STRs note that the Veteran was seen in January 1989 with one day history of neck pain. The Veteran was diagnosed with cervical strain. In 1996, the Veteran was seen for neck pain. The examiner diagnosed the Veteran with cervical strain. His cervical spine x-ray was negative. The Veteran’s March 1998 separation exam is silent for neck pain or a cervical spine related diagnosis, and his final physical, spine exam was noted to be normal. The examiner noted that from March 2005, the Veteran’s post-service VA records are silent for complaints of neck pain or a diagnosis of a cervical spine condition. Additionally, the Veteran’s August 2007, January 2008, and July 2009 records are silent for neck pain. A VA Disability Benefits Questionnaire (DBQ) referral clinic record from April 2017 noted diagnosis of cervical strain. The VA examiner stated that the Veteran’s STRs reflect transient episodes of neck pain related to cervical strain which had resolved, and his 1996 x-ray was negative for a cervical spine disorder. Post-service medical records reflect symptoms of neck pain several years after active duty service with a cervical spine x-ray in 2019 showing spondylosis. As such, the examiner opined that it is less likely than not that the Veteran had a chronic cervical spine condition which was incurred in the service or related to his service. Additionally, the degenerative changes noted on the cervical spine x-ray in 2019 (more than 20 years after the service) are likely age related. The examiner also opined that it is less likely than not that the Veteran’s service-connected bilateral knee disability proximately caused or aggravated his cervical spine disability. It is less likely than not that Veteran’s cervical spine disability is caused by, related to or aggravated by his service-connected bilateral knee condition. The examiner stated that the Veteran’s cervical strain and spondylosis involves a distinctly separate anatomical location from his bilateral knee disability, and peer-reviewed literature does not support the concept that one would aggravate the other. There is no scientific evidence to support the knee condition leading to, aggravating, or having any impact on the cervical spine. Based on the evidence of record, the Board finds that the preponderance of the evidence is against service connection on a direct, presumptive, and/or secondary basis. The Board notes that the Veteran’s STRs document complaints, treatments, and diagnosis for cervical spine strain. However, on his separation physical, it was noted the Veteran’s neck, spine and other musculoskeletal systems were clinically normal. Additionally, the 2019/2020 VA examiner opined that it is less likely than not that the Veteran’s cervical spine condition was incurred in, caused by, or related to in-service injury, event, or illness. The examiner stated that the Veteran’s STRs notes that the Veteran was seen in January 1989 and 1996 for neck pain. On both occasions, he was diagnosed with cervical strain. His cervical spine x-ray was negative. The Veteran’s March 1998 separation exam is silent for neck pain or a cervical spine related diagnosis, and his final physical, spine exam was noted to be normal. The VA examiner stated that the Veteran’s STRs reflect transient episodes of neck pain related to cervical strain. The examiner noted that from March 2005, the Veteran’s post-service VA record was silent for complaints of neck pain or a diagnosis of a cervical spine condition. Additionally, the Veteran’s August 2007, January 2008, and July 2009 records are silent for neck pain. It was an April 2017 DBQ referral clinic record that noted a diagnosis of cervical strain. The examiner stated that the Veteran’s post-service medical records reflect symptoms of neck pain several years after active duty service with a cervical spine x-ray in 2019 showing spondylosis. The examiner further stated that the degenerative changes noted on the cervical spine x-ray in 2019 (more than 20 years after the service) are likely age related. Based on the evidence, the examiner opined that it is less likely than not that the Veteran’s cervical spine condition was incurred in, caused by, or related to in-service injury, event, or illness. Additionally, the Board notes that after the in-service complaint of neck pain, the first medical evidence of cervical spine disability was in 2017, i.e., 19 years after discharge from service. The fact that there were no records of any complaints or treatments involving the Veteran’s cervical spine disability for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). Therefore, the Board finds that element three under Shedden has not been met. Regarding secondary service connection, the 2019/2020 examiner opined that it is less likely than not that the Veteran’s service-connected bilateral knee disability proximately caused or aggravated his cervical spine disability. Additionally, the examiner opined that it is less likely than not that Veteran’s cervical spine disability is caused by, related to, or aggravated by his service-connected bilateral knee condition. The examiner stated that cervical strain is cause by over stretching of tendons and ligaments. Cervical strain may affect the upper extremities and cause pain and disability in the arms and hands. Knee pain may be aggravated by foot disorders. The examiner stated that the Veteran’s cervical strain and spondylosis involve a distinctly separate anatomical location from his bilateral knee disability, and peer-reviewed literature does not support the concept that one would aggravate the other. The examiner stated that there is no cause and effect relationship between cervical strain and knee disorders, and there is no scientific evidence to support the knee condition leading to, aggravating or having any impact on the cervical spine. The Board also finds that service connection for cervical spine degenerative changes on a presumptive basis is not warranted as the record does not show evidence of degenerative changes within one year of separation from active duty. The first competent evidence suggestive of degenerative changes was in 2019, i.e., 21 years after his discharge from service. As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection under 38 C.F.R. §§ 3.307, 3.309 is not warranted. The Board has considered the Veteran and his representative’s statements regarding the etiology of the Veteran’s cervical spine disability. The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the cervical spine disability, active service, and/or a service-connected disability, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In the absence of a nexus, the claim for service connection for cervical spine disability is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore 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.