Citation Nr: 21064189 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-08 797 DATE: October 19, 2021 ORDER Entitlement to service connection for a cervical spine disability, to include degenerative disc disease (DDD), is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's current cervical spine disability, degenerative disc disease, had its onset during service or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability, to include degenerative disc disease, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2001 to December 2005. In October 2020, the Veteran provided testimony in a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. In January 2021, the Board remanded the claim for further development. There was substantial compliance with the Board's remand directives to decide the claim on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a cervical spine disability. The Veteran asserts that service connection for a cervical spine disability is warranted because it was incurred in or otherwise a result of service. During the October 2020 Board hearing, the Veteran testified that while there was no single incident, a doctor had mentioned that being in uncomfortable positions for a long time will cause problems. The Veteran testified to being in the "prone position" in service. He explained that he would be in the position for hours in training and in operations, including "cover and watch." He stated that he remembered lowering his head and rubbing his neck because of pain and was sleeping in the ground with rocks. The Veteran reiterated that he did not sustain an injury like "somebody came and hit me on the neck," but it was the prolonged periods for over four years of being in the positions. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that service connection for a cervical spine disability is warranted. The reasons follow. As to evidence of a current disability, there is competent evidence of a current cervical spine disability. The April 2021 VA examination report includes a diagnosis of degenerative disc disease other than intervertebral disc syndrome (IVDS) of the spine. Thus, the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the Veteran reported being in the "prone position," including in training and operations such as "cover and watch," in the testimony mentioned above. The Board finds that the Veteran is competent to report his duties while in service, however, the Veteran's service treatment records are silent for a diagnosis, symptoms, or treatment of the cervical spine. These descriptions do not document a disease or injury but rather body movements / positions. The Board has considered the Veteran's statement that he developed problems from the "precarious and extremely demanding physical conditions U.S. Infantry Marines are exposed [to]" and that it was a "crucial principal engraved in our minds to "forget our pain, and to "suck it up" and complete the mission." He stated that he could not have earned the respect and trust needed to lead Marines into combat by complaining of pains and not shown physical courage." See March 2014 Notice of Disagreement. During the October 2020 Board hearing, the Veteran indicated that there was not a particular incident in service, but he was in the "prone position" constantly over a prolonged period of four years. The Veteran's representative referenced 38 C.F.R. § 3.102, the reasonable doubt doctrine, and asserted that such is applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or strenuous conditions, and is consistent with the probable result of such known hardships. Service treatment records do not document complaints, symptoms, diagnosis, or treatment for a cervical spine disability. In an October 2005 Report of Medical History close to the Veteran's service discharge, the Veteran reported a positive history of "recurrent back pain or any back problem." In the October 2005 Report of Medical Assessment, under question number 10, the Veteran reported that compared to his last medical assessment/ physical examination, his overall health was worse and indicated that he had "more back pains, my eyesight is worse and trouble sleeping more than 4 hours." Under question 13, the Veteran indicated that he had suffered from injuries or illness while on active duty for which he did not seek medical care. He specifically noted, "my lower back and knee pains, though it was just sore muscles." In item 20, health care provider comments, the medical professional explained that for number 10, the Veteran complained of back pain and knee pain after exercise. The Board accords high probative value and credibility to these documents, as the Veteran completed them contemporaneously with service. The Board finds that if the Veteran had experienced symptoms related to his upper back, neck, or cervical spine during service, he would have reported such symptoms in these documents. The Board acknowledges the Veteran's statements and affords him reasonable doubt as to not being seen during service for his cervical spine pain, but the fact that these records close to the Veteran's separation document the Veteran's report of lower back and knee pains in service is evidence against there being symptoms associated with the cervical spine in service. Accordingly, while the Board concedes that the Veteran underwent physical activities during service, where he may have been in uncomfortable body positions, including his cervical spine, performing physical activities during training and operations, this does not equate to a disease or injury in service. The Veteran is a combat veteran; however, his own statements do not establish a disease or injury in service. Rather, he reports that there was not one particular incident that caused the neck pain and close to separation, he affirmatively reported lower back and knee pain but did not mention upper back or neck pain. Thus, the preponderance of the evidence is against a finding of complaints or symptoms related to the cervical spine during service, and the in-service disease or injury element is not met. As mentioned above, the April 2021 VA examination report includes a diagnosis of degenerative disc disease (DDD) other than intervertebral disc syndrome (IVDS). In the examination report, the examiner specifically answered "yes" when asked if imaging studies of the thoracolumbar spine had been performed and results were available and answered "no" when asked if arthritis is documented following the imaging studies. The Board notes that "arthritis" is defined as inflammation of a joint. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 152 (31st ed. 2007). Degenerative joint disease (DJD) is arthritis but it is distinguished from degenerative disc disease (DDD), which is not arthritis and therefore not a chronic disease. 38 C.F.R. §§ 3.307, 3.309(a). The evidence does not support a finding that the Veteran had arthritis in his cervical spine in service. Additionally, there is no competent evidence that the Veteran has arthritis that manifested to a degree of 10 percent disabling or more within one year from his December 2005 separation from service. Specifically, a November 2006 computed tomography (CT) scan of the cervical spine showed no significant degenerative disease. In a May 2007 letter, a private rheumatologist also indicated that radiographs of the cervical spine were normal. A September 2011 magnetic resonance imaging (MRI) of the cervical spine shows impressions of mild disc bulge at C6-C7 and an "otherwise normal examination. No focal disc herniation." Thus, a presumption of service connection based on the chronicity of arthritis is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.307, 3.309(a). The Board has considered the Veteran's cervical spine disability on a direct basis and finds that the preponderance of the evidence is against a showing of a nexus between the Veteran's current cervical spine disability and service. The Veteran was provided a VA examination in March 2013. The examiner provided diagnoses of lumbar spondylosis and thoracic myofascial pain syndrome but not a cervical spine diagnosis. The examiner opined that the Veteran's claimed upper back disability was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. The examiner provided the rationale that after review of the Veteran's claims file, the Veteran was not diagnosed nor treated for upper back pain while in service. The examiner noted that a review of the private medical record revealed thoracic back pain secondary to myofascial pain syndrome in 2012. The Veteran proffered a February 2015 private back conditions Disability Benefits Questionnaire (DBQ) by Dr. Ronald B. Tolchin, D.O. Dr. Tolchin documented that the Veteran had neck and back pain with occasional radicular pain. Dr. Tolchin diagnosed the Veteran with mechanical back pain syndrome, lumbosacral sprain, degenerative disc disease, and radiculopathy. Dr. Tolchin also provided a nexus statement and opined that the Veteran's degenerative disc disease of the cervical spine, degenerative disc disease of the lumbar spine, muscle spasm of back, and myalgia are related to an onset or events while in service as most likely caused by, a result of, or aggravated by events in service, 51 percent probability or better. He stated that the Veteran had three deployments and complaints of pain began 14 days following deployment, and the Veteran had to carry over 100 pounds of weight on his back constantly and it added to the degenerative disc disease of the cervical and lumbar spine with a bulging disc at C6-7. The April 2021 VA examiner noted the Veteran's report that his cervical spine pain was initially attributed to carrying a heavy pack, wearing a bulletproof vest, and laying on his stomach. The examiner opined that the claimed cervical spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. She indicated that the Veteran had been experiencing cervical spine pain since November 2006 and had sought care privately and through VA. She stated that she believed that the symptoms the Veteran was experiencing were genuine but that the imaging he had undergone, including x-ray, CT, and MRI were largely unimpressive. The examiner noted the slight bulge at C5-C6 and a possible C5-C7 spondylosis, referenced by the February 2015 private physician, and found that there was no other pathology. She added that the possible spondylosis was noted only on one of the MRI's that the Veteran underwent and was only read as a spondylosis by one of the physicians. The examiner noted the Veteran also had a normal neurological examination, although he had mild pain with movement. She acknowledged that it was possible that the neck pain was due to lying in uncomfortable positions (supine) while wearing a heavy pack, however, found that the probability was less than 50 percent. The examiner cited several of the Veteran's medical records, under section III of the opinion to support her findings. The examiner found that there was no arthritis of the cervical spine. She further explained that in the same way poor sitting posture (ergonomics), could cause back pain over time, poor posture while supine could cause cervical spine pain. She documented hyperextension injuries of the neck are well documented in medical journals, however these are typically examined in regard to a trauma, such as whiplash, and not over a period of time, as this Veteran experienced. The examiner stated that the Veteran denied any trauma to the neck, but rather experienced an ache. She explained, presumably, this type of pain would resolve with cessation of the aggravating position and appropriate rehabilitation, which the Veteran stated he had completed. She ultimately opined that there is not a clear connection between the position he was in while in the military and neck pain that he sought medical care for one year later. The examiner reiterated that the physical examination and the imaging studies to which she had access were incongruent with the Veteran's perception of his pain and limitations. She added that the Veteran has sought care with multiple different physicians and specialists, had been treated aggressively and stated that none of the interventions made a difference. She explained that because of the discord between what the Veteran said and what the evidence supports, she was basing her opinion off of the objective evidence. The Board finds of most probative value the medical opinion of the April 2021 VA examiner. The VA examination report and opinion provides competent and probative evidence that weighs against the Veteran's claim because the examiner reviewed the claims file, interviewed the Veteran, performed a physical examination, and provided a medical opinion supported by well-reasoned rationale, which was based upon the facts of the case and medical principles, including reference to the Veteran's specific medical records and studies, as cited in her opinion. While the Veteran has proffered a February 2015 private back conditions DBQ and nexus statement, the Board finds that this evidence is of diminished probative value, as Dr. Tolchin did not support his conclusion with a well-reasoned rationale. In contrast, the April 2021 VA examiner thoroughly explained the difference between neck injuries due to posture and hyperextension injuries of the neck, which were typically examined in regard to a trauma, such as whiplash, and not over a period of time as the Veteran experienced, to include consideration of the Veteran's lay statements and the Veteran's specific medical history. In other words, the VA examiner based her opinion on the specific facts of the case, which do not show a trauma to the cervical spine. The Veteran has not offered any other probative and competent medical evidence to support his assertions on medical etiology. There are numerous post-service medical records reflecting complaints and treatment for cervical spine pain and/or disability; however, these records do not provide a positive nexus regarding the onset, etiology, or relationship of a cervical spine disability to military service. To the extent that the Veteran alleges that the current cervical spine disability is related to service, he is not competent to attribute the current cervical spine disability to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion is nonprobative evidence. In sum, the Board finds that the Veteran's cervical spine disability did not manifest in service, and that it is not etiologically related to his active duty military service. As the preponderance of the evidence is against the claim for service connection for a cervical spine (upper back/ neck) disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cheng, 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.