Citation Nr: 21063374 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-59 223 DATE: October 14, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. REMANDED Entitlement to service connection for headaches is remanded. FINDING OF FACT The Veteran's current cervical spine disability clearly and unmistakably existed prior to service and was not aggravated by his military service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.304, 3.306 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from June 1996 to September 1996 and from January 2003 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2019, at which time the Board granted the Veteran's petitions to reopen his claims for service connection for a cervical spine disability and headaches and remanded the issues for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for a cervical spine disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Relevant here, the Veteran's diagnosed arthritis is considered by VA to be a "chronic disease" as listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded on a veteran's examination report are to be considered as "noted." 38 C.F.R. § 3.304(b). When a preexisting condition is not noted on a veteran's entrance examination, the burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government rebuts the presumption of soundness, the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness by showing any of the above, the veteran's claim is one of direct service connection. Horn v. Shinseki, 25 Vet. App. 231, 236-37; Wagner, 370 F.3d at 1096. A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). A temporary or intermittent flare-up of a pre-existing disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective signs of illness. The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). In this case, the Veteran's military personnel records show that he served in the Southwest Asia Theater of operations during the Persian Gulf War; therefore, the Veteran is a "Persian Gulf veteran" as defined by 38 C.F.R. § 3.317. A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal diseases)) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of 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). The Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran asserts he is entitled to service connection for a cervical spine disability. As an initial matter, the Board finds that the Veteran has current diagnoses of degenerative arthritis of the cervical spine, bilateral upper extremity radiculopathy, and "s/p ACDF surgery," meaning status-post anterior cervical discectomy and fusion surgery. Therefore, a current disability is established. Next, the element of an in-service incurrence or aggravation of a disease or injury is complicated by the Veteran's medical history, which indicates that the Veteran reported neck pain that predated his active service and was ongoing since he played high school football. See March 2004 Report of Medical Assessment; July 2009 private treatment record. For this reason, it is necessary to consider the presumption of soundness. The Veteran's December 1995 service entrance examination is absent of any notations of defects, infirmities, or disorders relating to the cervical spine. Therefore, with respect to a cervical spine disability, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, unless there is clear and unmistakable evidence that the disorder: (1) pre-existed service; and (2) was not aggravated in service, the in-service element will be presumed. Id. On review, the Board find that there is clear and unmistakable evidence that the Veteran's cervical spine disability preexisted his service. In a March 2004 Report of Medical Assessment rendered after the Veteran's deployment, the Veteran reported that his neck and thoracic spine pain "EPTD," or existed prior to deployment and was related to high school football. Additionally, in a July 2009 private treatment record, the Veteran reported a longstanding history of recurring neck, mid back, and low back discomfort since he played football in high school. The Veteran is competent to report observable symptoms of neck pain, and the Board has no reason to doubt the credibility of his statements. The first was a statement made to the United States Government, and if false was punishable by fine and imprisonment. The second statement was made for the purposes of medical treatment, a circumstance where statements are considered inherently credible. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Furthermore, in a January 2020 VA medical opinion, the VA examiner opined that the claimed condition clearly and unmistakably existed prior to service, reasoning, in pertinent part, "Veteran had clear and unmistakable evidence of the preexisting neck condition in 2001 when he stated to the chiropractor that he had received injuries in high school football that caused neck and headache condition and in 2001 when he c/o neck/headache pain d/t wrenching his neck playing football." Additionally, the Board finds that there is clear and unmistakable evidence that the Veteran's cervical spine disability was not aggravated by service. The Veteran contends that his neck condition was made worse by wearing a 5-pound helmet, riding on rough roads during his deployment, and jumping on and off military vehicles. In a December 2005 private treatment record, the Veteran reported that his neck pain increased after his deployment to Iraq. In January 2020, a VA medical opinion was obtained as to the question of in-service aggravation. After an in-person examination of the Veteran and review of his claims file, the January 2020 VA examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In pertinent part, the January 2020 VA examiner provided the following rationale: "There is evidence to indicate the Veteran continued to suffer from the disorder during service, which is typical of the condition. However, the progression is not beyond normal progression for this disorder[,] and it is likely that in 2005 when he fell on the ice that this is what aggravated the neck condition. There is no evidence of permanent aggravation beyond normal progression identified that would have been caused by Service-related injury, incident or event." As rationale for the negative nexus opinion regarding direct service connection, the January 2020 VA examiner further explained, "When Veteran was deployed and then returned in 2004 and personally filling out a post-deployment questionnaire[,] he denied a worsening of health during deployment or a neck condition. In 2005 he fell on the ice and c/o neck pain, this was not during active duty status." Therefore, VA has met its high burden of showing by clear and unmistakable evidence both that the Veteran's cervical spine disability preexisted service and was not aggravated by such. Thus, the presumption of soundness is rebutted in its entirety. To the extent that the Veteran believes that his disability is related to service (aggravated therein), he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examination, which was rendered by a medical professional based on review of the records and reliance on accepted medical principles. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). REASONS FOR REMAND 1. Entitlement to service connection for headaches is remanded. The Veteran asserts he is entitled to service connection for headaches, to include as secondary to his service-connected posttraumatic stress disorder (PTSD). The Board finds that another remand is necessary to ensure substantial compliance with its previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (a remand order by the Board or the Court imposes upon the Secretary "a concomitant duty to ensure compliance with the terms of the remand"). In its October 2019 Remand, the Board requested that the RO obtain medical opinions addressing the theories of secondary causation and aggravation of the Veteran's headaches by his service-connected PTSD. These opinions were not obtained. See January 2020 VA medical opinions. Therefore, remand is required to ensure substantial compliance with the Board's previous remand directives. Accordingly, the matter is REMANDED for the following actions: 1. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran's headaches, preferably from the VA examiner who completed the January 2020 VA examination and medical opinions, if possible. If this is not possible, the opinion should be rendered by another appropriate examiner. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a review of the entire claims file, the examiner is asked to provide an opinion as to whether the Veteran's headaches are at least as likely as not (50 percent probability or greater) proximately due to OR aggravated by his service-connected PTSD. * Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non-service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). The examiner must provide separate findings and rationales relating to causation and aggravation. A complete rationale must be provided for any opinion rendered. 2. Thereafter, readjudicate the remanded claim. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.