Citation Nr: 21004129 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 18-30 977 DATE: January 26, 2021 ORDER Entitlement to service connection for a cervical spine disorder is denied. FINDINGS OF FACT 1. The weight of the medical and other evidence of record is against a finding that the Veteran has a diagnosis of cervical spondylosis or other cervical spine disorder, that had its onset in-service or is otherwise related to a disease or injury during military service, including service-connected lumbar conditions. 2. Cervical spondylosis or other cervical spine disability was not manifest to a compensable degree within one year of separation from active duty service and is not otherwise related to service. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 101, 106, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the U.S. Army from November 1982 to December 1992. This matter comes before the Board of Veterans’ Appeals (Board) as the result of a December 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The issue of service connection for a cervical spine disorder was remanded in December 2018 and October 2020 for further development. The appeal is now returned to the Board for further consideration. This case has been advanced on the docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). 1. Entitlement to service connection for a cervical spine condition The Veteran asserts that his cervical spine condition had an onset in-service or is otherwise the result of military service, particularly the lumbar spine conditions for which he is already service connected. See May 2017 Medical Data Review. Service Connection A Veteran is entitled to compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. 38 U.S.C. §§ 1110, 1131; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 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). When there is an approximate balance in the 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. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). 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). Although the Veteran is competent to provide a diagnosis of an observable condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of cervical spine conditions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Factual Background The Veteran’s service-connected disabilities include lumbar paravertebral myositis, residual scars in the lumbosacral area, unspecified depressive disorder, status post left wrist fracture, right ankle contracture, vascular headaches, left lower radiculopathy, right lower radiculopathy, right patellofemoral pain syndrome, left patellofemoral pain syndrome, right hip osteoarthritis, left hip osteoarthritis, scars associated with lumbar myositis, right hip osteoarthritis flexion, left hip osteoarthritis flexion, right foot plantar callus, left hip osteoarthritis abduction / adduction, and right hip osteoarthritis abduction / adduction. See August 2020 rating decision code sheet. Service treatment records for the Veteran reflect, “Back pain…hurts more after work…dull pain…was working with a jack and used his left side more…tender to touch on the left shoulder blade.” The Veteran was diagnosed with a “pulled muscle.” See March 1984 Chronological Record of Medical Care. When he separated from service in 1992, the Veteran’s clinical evaluation was “normal,” including “Spine, Other musculoskeletal” systems. In addition, the Veteran reported “No – Bone, joint or other deformity” and “No – Painful or ‘trick’ shoulder or elbow” at separation and described his present health as, “My left side of my face [sic] is (swollen) due to root canal work. Besides that [sic] I’m ok.” See September 1992 Reports of Medical Examination and Medical History. Service treatment records for the Veteran do not reflect any complaints, diagnoses, or treatment for cervical spine disorders, including his September 1992 separation physical. See September 1992 Reports of Medical Examination and Medical History. Post-service treatment records from the VA Medical Center reveal that the Veteran experienced “low back pain that radiates to the left leg,” eventually diagnosed as “sciatica” and “chronic low back pain.” See December 2015 VA Emergency Department Physician and July 2016 VA Primary Care Nursing Triage Notes. In February 2002, the Veteran was diagnosed with a “muscle strain” after reporting, “[P]ersistent left pectoralis (muscle) pain which is not present during work areas [sic] but recurs after resting and during nights…painful at rotation of the neck…painful upon arm abduction and flexion.” See February 2002 VA Primary Care Follow Up Note. A May 2011 cervical spine X-ray for the Veteran revealed, “straightening of the normal lordosis. There are no fractures or dislocations. There is mild posterior joint space narrowing at C5-C6. The neuroforamina appear ample [sic] There is no prevertebral soft tissue swelling. Impression: Straightening of the normal lordosis as seen with pain or spasm…Mild posterior joint space narrowing at C5-C6.” The diagnosis was “[c]ervical muscle spasm.” See May 2011 VA Cervical Spine Radiology Report. The Veteran’s private treatment physician provided a summary of the Veteran’s medical history in May 2017. The list of conditions for which the private physician treated the Veteran include: tinnitus, bilateral sensorineural hearing loss, hypertensive cardiovascular disease, dyslipidemia, chronic low back pain, degenerative disc disease lumbar spine, chronic myositis, generalized anxiety disorder, major depression, and post-traumatic stress disorder. No cervical spine conditions were included on the list of diagnoses or treatment. The private physician concluded, “Veteran who presents sensorial, cardiovascular and severe musculoskeletal diseases with psychiatrics [sic] disorders which are more probable than not secondary to his service performance.” See May 2017 private physician Medical Data Review. Cervical spine pain was noted in September 2018. The Veteran reported to the emergency department complaining of, “[L]ow back pain since 2 days ago [sic]…pain in the right cervical area at palpation and on lumbar area.” The diagnosis was “chronic low back pain,” and “surgery of fusion in the lower back,” performed in both 2016 and 2017, was discussed with the Veteran. The treating physician noted “[n]o alarm symptoms,” and the Veteran was sent home. See September 2018 VA Emergency Department Physician Note. The Veteran was afforded a back and spine VA examination in December 2019. Diagnoses included, “Degenerative arthritis of the spine…Cervical spondylosis.” A history of back conditions was reported by the Veteran as, “[S]uffering from cervical pain since several years ago, denies any traumas and claims pain in occasional fashion.” Flare-ups and functional loss were reported by the Veteran, described as “loss of overhead activities.” Forward flexion was measured at 35 degrees, with the same measurements recorded after repetitive testing. Weight-bearing pain was noted during the examination, in addition to muscle spasm and guarding, without abnormal gait or spinal contour. Muscle strength was normal. There was no evidence of atrophy, radiculopathy, ankylosis, intervertebral disc syndrome, or other neurologic abnormalities. See December 2019 VA examination report. The December 2019 examiner concluded, “The claimed condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness.” Rationale mentioned the lack of evidence of lineal treatments for any cervical spine conditions in the record during service or in the year thereafter. The examiner continued, “Condition most likely due to aging process.” Regarding secondary service connection, the examiner concluded, “The condition claimed is less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s service-connected condition.” The examiner reasoned, “There is no relation in terms of anatomy, function, biomechanics or pathophysiology among cervical and lumbar area. Actual neck condition is related to aging process and not due to any lumbar conditions. For the same reason aggravation for cervical spine has nothing to do with (lumbosacral) area.” See December 2019 VA examination report. An additional VA examination was completed in October 2020. The diagnosis was, “cervical degenerative joint disease.” The examiner reviewed and considered in-service and post-service treatment records for the Veteran, including the May 2017 Medical Data Review provided by the Veteran’s private treating physician. Regarding service connection, the examiner concluded, “The condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness.” See October 2020 VA examination report. The rationale for the October 2020 opinion included, “Pain in the back area as well as in shoulder blades seen in-service are not related to actual cervical spondylosis (are not same anatomical areas and have nothing to do with cervical spine in terms of biomechanics or actual pathophysiology in the neck area). As mentioned years ago, there is no evidence in medical records of any treatments for neck area during service periods or year thereafter for which actual cervical spondylosis is not service related. It was not manifested during service.” See October 2020 VA examination report. Regarding secondary service connection, the October 2020 examiner stated, “The condition claimed is less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s service-connected condition.” The examiner explained, “Actual cervical spondylosis is an aging condition and had nothing to do with service-connected lumbar conditions of nucleus pulposus herniation, spondylosis in (lumbar spine) area and / or gait abnormalities. These areas are separated in terms of their anatomic positions and function as well as on their biomechanics. Pathophysiology of cervical spine has nothing to do with lumbar conditions or gait problems, balance or weight bearing from lumbar area. Actual cervical spondylosis is related to aging process.” See October 14, 2020 VA examination report. Analysis The Veteran has been diagnosed with “Cervical Spondylosis.” See December 2019 VA examination report. Therefore, the first element of service connection is established. The second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Aside from the March 1984 “pulled muscle,” the Veteran’s service medical records do not include any additional documentation for complaints of cervical spine pain. Further, service treatment records for the Veteran do not include a diagnosis or treatment for a cervical spine condition. See Veteran service treatment records. A clinical evaluation conducted for the Veteran at separation documents “Normal Spine, Other musculoskeletal.” See September 1992 Report of Medical Examination. A Report of Medical History, completed by the Veteran in September 1992, is answered “No” regarding “Bone, Joint, or Other Deformity” and “Painful or ‘trick’ shoulder or elbow.” In addition, the Veteran stated, “My left side of my face [sic] is (swollen) due to root canal work. Besides that [sic] I’m ok,” regarding his “Present Health” in September 1992. See September 1992 Report of Medical History. Although the credibility of lay evidence may not be refuted solely by the absence of corroborating medical evidence, it is a factor. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Contemporaneous medical evidence has greater probative value than the Veteran’s reports of history. See Curry v. Brown, 7 Vet. App. 59 (1994). The September 1992 separation physical evidence reflects a “normal” clinical evaluation for “Spine, Other musculoskeletal” and “no” to the question, “Have you ever had or have you now…Bone, Joint, or Other Deformity.” See September 1992 Reports of Medical Examination and Medical History. The first indication of a cervical spine condition was reported in a May 2011 X-ray, wherein the Veteran was diagnosed with “Cervical muscle spasm.” See May 2011 VA Cervical Spine Radiology Report. Presumptive service connection can satisfy both the elements of an in-service event and a nexus to military service. Chronic diseases listed under 38 C.F.R. § 3.309(a) that manifest either during active service or to a compensable degree within the applicable time limits of 38 C.F.R. § 3.307(a) are sufficient to establish in-service incurrence or aggravation. If a chronic disease enumerated in 38 C.F.R. § 3.309(a) does not manifest in-service or within the applicable time limits, service connection may be granted based on continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Presumptive service connection can also be granted for those diseases listed under 38 C.F.R. § 3.309(b)-(f). The Veteran’s diagnosis of “cervical spondylosis” is a form of arthritis and is a chronic disease enumerated in 38 C.F.R. § 3.309. The first recorded complaint of “chronic” pain for the Veteran is not until 2003, more than a decade after his military service, and was localized in the “low back.” See September 2003 VA Primary Care Note. The Veteran does not meet the requirements for presumptive service connection, as this diagnosis was not made within the prescribed time limits after service, or through continuity of symptomatology, and he is not entitled to the presumption of an in-service incurrence, aggravation in-service, or nexus to service. Turning next to the final element of service connection, a nexus between the current diagnosed condition and an in-service event, the Veteran has not provided lay evidence, either through buddy or personal statements, regarding the history of his cervical spine condition. Inasmuch as the Veteran asserts that his cervical spine condition is the result of military service, he is not competent to provide evidence of complex medical questions, including etiology and pathology. Therefore, evidence of service connection lies in the December 2019 and October 2020 VA examinations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Pursuant to the December 2018 and October 2020 Board remands, the VA examiners were asked to determine “whether cervical spine disorder is related to or secondary to (Veteran’s) service-connected lumbar spine with associated bilateral lower extremity radiculopathy disabilities, to include the March 1984 treatment for shoulder blade pain and May 2017 opinion from (the Veteran’s private treating physician) regarding secondary service connection.” See December 2018 and October 2020 Board remands. At the December 2019 and October 2020 VA examinations, the Veteran was interviewed and examined, in-person. After thoroughly reviewing the record, the examiners distinguished lumbar symptoms from cervical spine symptoms, discussing disc herniation, spondylosis of the lumbar spine, and “gait abnormalities,” which include balance and weight-bearing issues (described by the Veteran’s private treating physician in May 2017 as “instability”). While the Veteran is service connected for the lumbar spine symptoms documented in-service, the examiners opined that cervical spondylosis symptoms specifically excluded March 1984 “[p]ain…in the shoulder blades.” See December 2019 and October 2020 VA examination reports. Addressing secondary service connection, the December 2019 and October 2020 examiners explained that lumbar and cervical spinal areas are anatomically separate, function separately, and their pathophysiology, the functional changes that accompany a particular condition, are separate and distinct. More succinctly stated, the examiners opined that the Veteran’s claimed cervical spine condition, “[H]as nothing to do with lumbar conditions.” Both examiners agreed that cervical spondylosis “is related to the aging process” and not to lumbar complaints in-service, pain in the shoulder blades in-service, or to current service-connected lumbar spine conditions. See December 2019 and October 2020 VA examination reports. In summary, while the Veteran has a current diagnosis to satisfy the first element of service connection, a preponderance of the evidence is against a finding of elements two and three, an in-service event or aggravation and a nexus to military service. The Veteran alleges both aggravation and injury to his cervical spine while in-service. See June 2017 VA Form 21-526EZ, Application for Disability Compensation, and May 2017 Medical Data Review. There is no evidence in the record of either occurrence, which was adequately addressed in VA examinations. The Veteran denied trauma to his spine in the December 2019 VA examination and reported “occasional,” not chronic, pain. Beyond the March 1984 complaint of pain in his shoulder blades, the Veteran is not competent to provide a diagnosis that requires the application of medical expertise to the facts presented. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The December 2019 and October 2020 opinions from the VA examiners are the most probative evidence of record on the question of diagnosis and nexus to service. The opinions were based on an extensive review of all of the evidence, including statements from the Veteran, were supported by a detailed rationale, provided data to support any conclusions, and provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The December 2019 and October 2020 VA examiner opinions are consistent with one another with the evidence of record, including the May 2017 Medical Data Review. The VA examiner opinions provide compelling evidence against the Veteran’s claim for service connection. The Veteran contends that his claimed disability exists and is related to his active service. This opinion is of no probative value, because he lacks the medical expertise needed to diagnose a cervical spine condition or to attribute it to active military service. There is no competent, credible evidence to refute the December 2019 and October 2020 VA examiner opinions. The weight of the probative evidence of record is against a finding that the Veteran’s cervical spondylosis is causally or etiologically related to any disease, injury, or incident, in service. Consequently, service connection is not warranted, and the claim is denied. In sum, a clear preponderance of the evidence of record indicates the Veteran does not meet the criteria under 38 C.F.R. § 4.71a, diagnostic code 5237, for entitlement to service connection for cervical spondylosis. Therefore, his claim must be denied. The benefit- of-the-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001), Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.