Citation Nr: 21004998 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 07-16 112 DATE: January 28, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy during his service. 2. The Veteran’s cervical spine disability, diagnosed as arthritis of the cervical spine and intervertebral disc disease (IVDS), did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for cervical spine disability, diagnosed as arthritis of the cervical spine and IVDS, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1968 to January 1970 in the United States Army. He served in the Republic of Vietnam and was awarded the Purple Heart for injuries sustained during combat. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA)Regional Office (RO). An April 2015 Board decision remanded the claim of entitlement to service connection for cervical spine disability—specifically for a VA examination and medical opinion addressing the etiology of the Veteran’s cervical spine disability. In a May 2018 decision, the Board denied the claim for service connection for cervical spine disability. The Veteran appealed the denial as to cervical spine disability to the U.S. Court of Appeals for Veterans Claims (Court). In a January 2019 Order, the Court granted a Joint Motion for Partial Remand (JMR) and vacated the May 2018 Board decision as to the denial of service connection for a cervical spine disability. The case was remanded in July 2019 for further development consistent with the directives in the JMR. It is again before the Board for further appellate review. Service connection – Cervical Spine Disability The Veteran asserts that his current cervical spine arthritis is related to the helicopter crash he was involved in during his active service. The Veteran claims that when he fell out of a helicopter that was avoiding enemy fire, he hit his head on the ground and that he had whiplash from the incident. For the reasons that follow, the preponderance of the evidence weighs against finding that service connection has been established for the Veteran’s cervical spine disability on a presumptive or direct basis. Service Connection on a Presumptive Basis Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Arthritis is among the chronic diseases for which presumptive service connection is available is manifested to a compensable degree within a year after discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran has been diagnosed with intervertebral disc syndrome (IVDS) and degenerative arthritis of the cervical spine. See October 2020 VA examination. The Veteran has contended that he sustained an injury to his neck in combat in the same incident during which he injured his lower back. Service treatment records reflect treatment for his lower back after the helicopter crash in November 1968. With regard to an in-service incurrence of a cervical spine injury, the Veteran is a combat Veteran and has described an injury to his neck sustained in combat. As such, the provisions of 38 U.S.C. § 1154(b) are applicable. The presumption found in § 1154(b) applies not only to the incurrence of an injury as the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). As to claims made by combat veterans, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. The combat presumption may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The combat presumption must be applied to two questions: (1) whether the claimed in-service injurious event occurred and (2) whether the claimed disability itself occurred while in service. Reeves, 682 F.3d at 999. In other words, the combat presumption relieves the veteran of having to establish that the injurious event suffered while in service led to disability following service, thereby permitting the veteran to have to show only that the injury or disease incurred in service was a chronic condition that persisted in the years following service. Id. For certain enumerated chronic diseases, such as arthritis, service connection may be granted based upon a presumption of incurrence in or aggravation by service despite the lack of evidence of such disease during service if diagnosed and manifested to a compensable degree within a prescribed period, generally one year, after separation from qualifying service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Additionally, for those same enumerated chronic diseases service connection may be granted despite the lack of evidence of such disease during service if there is a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b), 3.309(a); Walker, 708 F.3d at 1331. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. 38 C.F.R. § 3.307(b). The evidence shows the Veteran currently has a diagnosis of arthritis of the cervical spine. Further, the Veteran’s reports of an injury in service during combat are consistent with the circumstances of his service. The Veteran has contended that he injured his neck in the same incident when he injured his low back in combat. As noted above, the Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. Reeves, supra. Thus, the Board finds that the Veteran’s in-service neck injury is presumed to have occurred in service pursuant to 38 U.S.C. § 1154(b) and Reeves. However, the Board does not find that the disability itself was present in service. The combat presumption does not automatically require that the report of an injury in combat. See, e.g., Becker v. Wilkie, No. 18-0937 (U.S. Vet. App. Feb. 27, 2019) (memorandum decision). Chronic diseases must be diagnosed via a combination of manifestations sufficient to identify the disease entity. The Veteran does not indicate that he was told by a medical professional that he had cervical spine arthritis in service. A lay person, such as the Veteran, cannot diagnose himself with arthritis and the conditions and circumstances of his service, to include combat. There is no medical evidence of the in-service presence of cervical spine arthritis. The Board finds the Veteran has not proffered “satisfactory lay or other evidence” that his arthritis was present during service. The Board concludes that the combat presumption does not attach to the presence of the disability during service. See Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996). Similarly, the evidence of record fails to show that the Veteran had continuity of symptomatology for his cervical spine arthritis after service. He did not report ongoing symptoms on since leaving service. The record shows that the appellant underwent VA medical examinations in January 1971 and January 1979. At that time, he reported back pain but did not complain of neck pain. Examination of the musculoskeletal system revealed no complaints or abnormalities pertaining to the cervical spine. The first evidence of the Veteran reporting neck pain was in 1985. Imaging studies at that time were normal. He was not diagnosed with degenerative disc disease until 1999. The evidence of record does not establish that his cervical spine disability incurred in service was a chronic condition that persisted in the years following service. Likewise, the Board finds that cervical spine arthritis was not manifest to a compensable degree within one year of service separation as the evidence does not reflect treatment for or reports of cervical pain or impairment for many years after service. As such, even with consideration of the presumptions of Reeves and 38 U.S.C. § 1154(b), service connection for cervical spine arthritis is not warranted on a presumptive basis. Direct Service Connection 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). As noted above, the Veteran has a currently diagnosed cervical spine disability and the evidence establishes an in-service injury to and disability of his neck. On the question of whether a medical nexus exists between the appellant’s current disability and his in-service injury and resulting in-service cervical spine disability, in its May 2018 decision, the Board relied on a December 2017 VA examination that was found to be inadequate. The December 2017 VA examiner opined that it was not at least as likely as not related to his in-service helicopter crash. However, as noted in the JMR, the examiner did not specifically discuss the records identified in the Board’s April 2015 remand directives. The Board had instructed that an examiner should specifically discuss the Veteran’s diagnosis of osteoarthritis of the cervical spine in May 1990 and his cervical-spine related complaints in April 1985. As the VA examiner did not address these records, the opinion was inadequate, and the May 2018 Board decision was vacated and remanded to the Board. In July 2019, the Board remanded the issue in order to obtain a VA opinion as to whether the Veteran’s cervical spine disabilities are related to service that addressed these records. A VA examination was provided to the Veteran in October 2020. After examination of the Veteran and review of the evidence of record, the examiner opined that his cervical spine disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. While the veteran contended that his neck condition was related to his time in the service, the examiner noted that he was not evaluated for a neck condition until 1985—15 years after active duty—with normal cervical films at that time. Repeat imaging conducted five years later, in May 1990, showed mild degenerative joint disease at the cervical spine, and degenerative disc disease was not diagnosed until 1999, nearly 20 years after his time in the service. She found that if the trauma to his neck had been significant at the time of injury, one would anticipate that the veteran would have developed degenerative joint disease earlier than mild degenerative joint disease noted 15 years after injury with imaging 10 years after injury noted to be normal without evidence of degenerative joint disease. The Board finds the opinion of the VA examiner to be highly probative and persuasive, as it is based on a review of the evidence of record—including the April 1985 and May 1990 medical records—and supported with a reasoned medical explanation that is consistent with the Veteran’s treatment records and history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). While the Veteran is competent to report having experienced symptoms of his cervical spine disability, he is not competent to provide a nexus opinion in this case. The issue is medically complex, and the evidence does not reflect that the Veteran has the requisite medical expertise to provide a complex medical opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the October 2020 VA examiner’s opinion, and the claim is denied. (Continued on the next page)   In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith 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.