Citation Nr: 21062569 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 14-35 328 DATE: October 8, 2021 ORDER Entitlement to service connection for a neck disability is denied. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT The Veteran's neck disability is not secondary to service-connected foot disabilities and is not otherwise related to an in-service injury. CONCLUSION OF LAW The criteria for service connection for a neck disability due to service or service-connected foot disabilities are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 to August 1978, with an additional period of active duty for training (ACDUTRA) from April 1976 to August 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision. The Veteran testified before a Veterans Law Judge (VLJ) at a hearing in March 2018; a transcript of that hearing is of record. In September 2020 the Veteran was sent a letter informing him that the VLJ who conducted his hearing had retired, and offering him the opportunity to have a hearing with a new VLJ. As the Veteran did not respond, the Board will proceed based upon the March 2018 hearing transcript. These matters were previously remanded by the Board in November 2018, January 2020, and November 2020. The Board finds there has been substantial compliance with its remand directives for the claim decided herein. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a neck disability The Veteran contends that his neck disability was incurred in service while parachute jumping or during a fall from an ammunition bunker. Alternatively, he contends that his neck disability was caused or aggravated by an altered gait caused by his service-connected foot disabilities. First the Board will consider entitlement to 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). In this case, an October 2019 VA examination diagnosed the Veteran with cervical strain and degenerative arthritis of the spine. The Veteran's personnel record does support a finding that he performed several parachute jumps in August 1976, and he received a parachutist badge according to his DD214. Therefore, the issue is whether there is a connection between the Veteran's parachute jumps in service and his current neck disability. The Veteran argues that he has had neck pain since service, but that he did not seek treatment due to a culture of stoicism in service and a concern that seeking treatment would prevent him from succeeding. The Veteran's August 1978 separation examination included a normal evaluation of the neck. The first available record of treatment for the Veteran's neck is from March 2001, decades after service, when he states that he injured his neck after falling backward and hitting his neck and back on a computer and landing on the floor. A June 2001 private treatment also states that the Veteran has complained of pain in his neck since the March 2001 injury. A November 2003 treatment record similarly noted that after this March 2001 injury, the Veteran subsequently developed cervical pain radiating into the upper extremities, as well as lumbar pain radiating into the lower extremities. There was no reference to any neck pain or difficulty prior to the March 2001 injury in these records. Statements made for the purposes of receiving medical treatment are of greater probative value than statements made in support of a claim for benefits. Pond v. West, 12 Vet. App. 341 (1999). The Board finds that the Veteran's assertion that he has had neck pain since service is not credible because it is directly contradicted by the medical history that the Veteran gave when seeking medical treatment. A May 2015 private medical opinion notes the Veteran's history of parachute landing falls and excessive physical training in service, and that the Veteran was diagnosed with arthritis of the neck in 2011. This private physician opined that it is more likely than not that the physical trauma the Veteran sustained to his neck during military service as well as an event of falling from a 4-foot ammunition bunker during service caused and contributed to his current complains of the neck, and that his condition was aggravated and accelerated while on active duty. This opinion has very limited probative value because it is not supported by any rationale, and because it does not discuss the March 2001 injury. An October 2015 Disability Benefits Questionnaire filled out by a private physician notes that the Veteran has ankylosis of the cervical spine and a history of multiple parachute jumps with neck injuries, but does not clearly provide an opinion linking the parachute jumps to the current neck disability, not does it provide any rationale or discussion of the March 2001 injury. An October 2019 VA examination discusses the medical record at length, and that examiner opines that they cannot find any documentation of treatment for the Veteran's neck until a time too far removed from service to be related to that service or any injury incurred in or caused by some. The examiner notes that the Veteran himself reported pain in his neck since the March 2001 injury in the medical record, and also asserts that the record supports the opinion that the changes to the cervical spine were necessitated by the 2001 event and not anything related to service. Based upon this rationale, it is less likely as not that the Veteran has a neck disability that was caused by service, to include all activities noted in the entirety of this service. A February 2020 VA examination discusses the Veteran's contention that he injured his neck when falling off an ammunition bunker. The Veteran stated that he fell four feet and landed flat on his back and then struck his head his head. The examiner stated that there was no shear force or lateral acceleratory force to the neck, just an axial load not in the direction proximal or distal in the lumbar spine and only in extension in the neck from whatever point in space his neck was flexed to the ground. The examiner stated that there was no hyperextension of the neck. The examiner opined that the described injury mechanism and attendant complaints of radiating pain and numbness in the lower limbs is inconsistent with the clearly stated and affirmed mechanism. In other words, the Veteran's neck injury and symptoms are inconsistent with the type of fall described by the Veteran. The examiner also noted that there are intervening injuries sustained after service that are clearly noted in the medical records. The examiner reiterated that the record clearly and unmistakably indicates that the onset of neck pain was after the incident in 2001. Based upon this rationale, the examiner once again opined that it is less than 50 percent as likely as not that the Veteran has a neck disability that was caused by service to include all the activities noted in the entirety of this service. The Board finds these VA opinions to be probative because they are based upon accurate medical history and supported by a complete rationale with clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the examiner does not discuss the Veteran's assertions of neck pain since service, the Board has found those assertions to not be credible for the reasons discussed above. The most probative evidence of record thus supports a finding that the Veteran's neck disability is less likely than not caused by or incurred in service. Therefore, the claim must be denied on a direct-incurrence basis. The Board will also consider whether service connection is available on a secondary basis. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected disability. The Veteran contends that his neck disability was aggravated by an altered gait caused by his service-connected foot disabilities (plantar fasciitis and pes planus, bilateral heel spur). The Board concludes that, while the Veteran has a current neck disability, the preponderance of the evidence is against finding that the Veteran's neck disability is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected foot disabilities. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310. A January 2021 VA examination opined that the Veteran's current neck condition is less likely than not related to nor secondary to the service-connected bilateral foot condition, or aggravated (as defined for VA purposes) by the service-connected bilateral foot condition. The rationale was that review of the currently available, credible, accepted, peer reviewed, and authoritative orthopedic literature finds no peer reviewed studies that support a contention of unilateral or bilateral foot conditions, with or without altered gait pattern inducing intrinsic conditions of the spine or neck. The examiner stated that there is no evidence in the same literature that indicates that any biomechanical stress changes due to unilateral or bilateral foot condition would transmit that biomedical stress up to the spine or neck and induce aggravation (as defined for VA purposes) or induce intrinsic conditions of the spine or neck. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. The portion of the opinion concerning the back is contradicted by the private medical opinion and article as discussed below, but the rationale discussing the neck is not contradicted by any competent medical evidence. The Veteran has submitted a private medical opinion and article in support of the contention that altered gait aggravates the lumbar spine, but the article and medical opinion does not state that an altered gait aggravates the neck. While this article contradicts the examiner's findings as to the lumbar spine, it does not contradict the VA examination as to the neck. While the Board recognizes that the Veteran sincerely believes that his service-connected foot disabilities altered his gait and aggravated his neck disability, the record does not reflect that he has the requisite medical training necessary to provide make a determination about the medically complex issue of the etiology of his neck disability. Therefore, the issue is outside of the Veteran's competence, and his opinion lacks probative value. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The probative evidence of record thus supports a finding that the Veteran's neck disability was not caused or aggravated by his service-connected foot disabilities to include any related altered gait. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. A January 2021 VA medical opinion found that the Veteran's current back condition is less likely than not related to or aggravated by the service-connected bilateral foot condition and/or biomechanical foot condition and/or biomechanical stresses from the feet because there is no evidence in peer reviewed, credible, accepted and authoritative orthopedic literature supporting a contention of unilateral or bilateral foot conditions with or without altered gait pattern inducing intrinsic conditions in the spine or inducing aggravation. An April 2021 opinion from a private physician opined that research shows that limping will cause back pain and aggravate pre-existing back pain, and provided a positive aggravation opinion. The physician enclosed an article in support of his contention. Although the physician did not provide a baseline for his aggravation opinion, the VA examiner should respond to it and the accompanying article in an addendum opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the etiology of the Veteran's lumbar spine disability. The clinician is to answer the following questions: (a.) Is at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disability is proximately due to service-connected foot disability and related altered gait? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disability is aggravated (defined as any increase) by service-connected foot disability and related altered gait? Each opinion must be supported by a complete rationale. The clinician must reconcile his or her response with the April 2021 positive opinion finding that research shows that limping will cause back pain and aggravate pre-existing back pain and the accompanying article for the Workplace Safety and Insurance Appeals Tribunal on the subject of Limping and Back Pain. 2. The AOJ must confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.