Citation Nr: 21004103 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-04 709 DATE: January 26, 2021 ORDER Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for a headache disorder is granted. Entitlement to service connection for a lumbar spine disability is denied. FINDINGS OF FACT 1. The evidence is evenly balanced as to whether the Veteran’s cervical spine disability is due to or aggravated beyond its natural progression by service-connected right elbow disability. 2. The evidence is evenly balanced as to whether the Veteran’s headache disorder is due to or aggravated beyond its natural progression by service-connected right elbow disability or right shoulder disability. 3. The Veteran’s lumbar spine disability was not shown as chronic in service and arthritis did not manifest to a compensable degree within the applicable presumptive period; and the disability is not secondary to any service-connected disability, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for service connection for a cervical spine disability as secondary to service-connected right elbow disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. With resolution of reasonable doubt in the Veteran’s favor, the criteria for service connection for a headache disorder as secondary to service-connected right elbow disability or right shoulder disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for lumbar spine disability, to include as due to service or service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1982 to October 1988. The Veteran testified before the undersigned Veterans Law Judge during an October 2019 videoconference hearing; a transcript is of record. The Board previously remanded the issue for further development in December 2019. The case has now been returned to the Board for appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of 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 also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id; see also 38 C.F.R. § 3.310 (b). In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis and other organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Cervical spine disability 2. Headache disorder The Veteran contends that his cervical spine disability is related to his service-connected right elbow disability due to compensation for lack of mobility in the right elbow and that his headache disorder is related to his service-connected disabilities. His service treatment record shows that he injured his right elbow while in service. Service connection has also been granted for right shoulder impairment due to the injury and/or the elbow impairment. The Veteran has a current diagnosis of a cervical spine disability and cluster headaches, as noted in a March 2018 VA examination. As for nexus for cervical spine disability, the Veteran submitted medical opinions rendered by two private practitioners in October 2019. Both opinions discuss the Veteran’s cervical spine disabilities and opine that the Veteran’s cervical spine issue is more likely than not aggravated by the initial in-service elbow injury. Both practitioners stated they reviewed the Veteran’s medical records, to include his service treatment records. A rationale provided was that the information reviewed is consistent with his current disabilities and that there is a permanent loss of right upper extremity function due to the fall and the right elbow trauma in service. An October 2020 VA addendum opinion disagrees with the above. The examiner provided a rationale that the function of the neck (bending, rotating, and bearing the weight of the head) and the function of service-connected musculoskeletal disabilities do not significantly overlap to suggest aggravation. Therefore, the evidence is at least evenly balanced as to whether the Veteran’s cervical spine disability is caused by aggravated beyond its natural progression by the service-connected right elbow disability where the Veteran fell onto his right hand/arm during service causing the initial trauma to the right upper extremity. As for nexus for headache disorder, one of the October 2019 private medical opinions states that all the information the provider reviewed regarding the in-service fall onto outstretched right hand is consistent with the Veteran’s current diagnosis and treatment for his right neck, shoulder, elbow, and headaches. An October 2020 VA addendum opinion disagrees. The examiner stated, however, that joint pain is considered one of triggers for primary headaches. Relevant to this, a September 2010 VA treatment record indicates that the Veteran complained about intermittent pain at times above his right shoulder, which was aggravated by abduction above 90 degrees and radiated up to behind the right ear. Therefore, the evidence is at least evenly balanced as to whether the Veteran’s headache disorder is aggravated beyond its natural progression by the service-connected right elbow disability and/or right shoulder disability. In conclusion, with reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a cervical spine disability and for a headache disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. Lumbar spine disability The Veteran maintains that his current lumbar spine disability is related to his service-connected right elbow disability due to compensation for lack of mobility in the right elbow. The Veteran has a current diagnosis of a lumbar spine disability, to include degenerative arthritis of the spine, as indicated in a March 2018 VA examination. His service treatment records do not document any complaint, injury, or report of a lumbar spine disability. A review of the post-service treatment record indicates that the Veteran was treated at a VA emergency care unit for a complaint of severe low back pain, which started 8 days prior to the VA visit, almost immediately after getting a tattoo. During this visit, the Veteran was diagnosed with mild back strain. There is no followup treatment record subsequent to this emergency care visit. Thus, the evidence preponderates against finding that the Veteran’s degenerative arthritis of the lumbar spine manifested to a compensable degree within one year after separation. Moreover, the evidence does not show an in-service complaint, event, or injury directly pertaining to his lumbar spine. Therefore, the element of in-service incurrence has not been met. Lastly, the evidence preponderates against finding that the Veteran’s current lumbar spine disability is proximately due to or aggravated beyond its natural progression by a service-connected disability. On this point, an October 2020 VA examiner opined that his lumbar spine disability is not proximately due to nor aggravated beyond its natural progression by tinnitus, psychiatric disability, or joint disabilities. Pertinent to the Veteran’s assertion, the examiner explained that The overlap in function of these anatomical regions is poor. Whereas the lower back (lumbar spine) is responsible for bending, rotating and bearing the weight of the torso, the shoulder and elbow are responsible for pushing, pulling and positioning the arm in space and the hand with grasping and fingering. There may be some overlap in function however it is not significant enough to establish causality. An example of compensatory biomechanical musculoskeletal pathology due to a “right 5th finger sprain” might be the right 4th finger given the overlap in functional tasks but affecting a distant joint with poor functional overlap such as the lower back is unlikely. The evidence does not indicate a relationship between now service-connected cervical spine disability and his lumbar spine disability; this is consistent with the medical principle cited above for the other joint disabilities. No medical opinions in the claims file support the Veteran’s claim. The Board acknowledges the competent and credible lay statements from the Veteran regarding symptomatology. Nevertheless, to the extent that the Veteran attributes his disability to service, he is not competent to opine on the etiology of a complex medical condition, and his statements are therefore afforded no weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the evidence preponderates against the claim and it must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claims, the doctrine is not for application. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, 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.