Citation Nr: 21066958 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 09-37 944 DATE: November 3, 2021 ORDER Entitlement to service connection for a cervical spine disability, as secondary to a service-connected left knee disability, is granted. FINDING OF FACT The evidence shows that, as likely as not, the Veteran's cervical spine disability has been aggravated beyond its natural progression by his service-connected left knee disability. CONCLUSION OF LAW Service connection for a cervical spine disability, as secondary to a service-connected left knee disability, is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty for training from August 21, 1977 to December 1, 1977. This case is before the Board of Veterans' Appeals (Board) on appeal of a February 2009 Department of Veterans Affairs (VA) rating decision. In May 2015, a Travel Board hearing was held before the undersigned. A May 2016 Board decision denied service connection for a cervical spine disability including on a secondary basis, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). A September 2017 CAVC Memorandum Decision set aside the Board's decision and remanded the case to the Board for further consideration consistent with the Memorandum Decision. In June 2018, October 2019, February 2021, and July 2021, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected left and right knee disabilities Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Because the Veteran has not specifically raised, and the record does not reasonably raise, entitlement to direct service connection for a cervical spine disability, the Board will consider only entitlement to secondary service connection. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progress by, service-connected disability. It is not in dispute that the Veteran has a current cervical spine disability. Neck complaints were initially documented in January 1984, when he sustained an acute cervical strain. VA electromyography in April 1999 showed C6-8 radiculopathy. Private treatment records in February 2005 document worsening chronic neck pain (ongoing for approximately 20 years, according to the Veteran's report) after he slipped on ice the previous month. A July 2005 MRI of the cervical spine showed mild reversal of the normal lordosis, disc herniation at C5-6, and disc bulging at C6-7. Over the course of the appeal period, medical evidence reflects various diagnoses of cervicalgia, herniated cervical disc, cervical spondylosis, and cervical spine degenerative joint disease. Moreover, throughout the course of the appeal, service connection has been in effect for a left knee disability (status post replacement, rated 60 percent), residuals of a right knee injury (including degenerative joint disease, rated 30 percent), and chronic pain residuals of a low back strain (rated 10 percent). The Veteran alleges that his cervical spine disability is secondary to his service-connected left and right knee disabilities. In an October 2009 statement, he contended that his neck disability was the result of a fall on ice in 2005 when his left knee gave out following knee replacement. In an October 2009 substantive appeal statement, he also asserted that the neck disability was the result of his right knee giving out. In a December 2011 statement, he reported that his neck disability was aggravated by falls when both knees gave way. At a May 2015 Board hearing, he described his left knee going out while he was on ice walking with a cane (following knee replacement), causing his neck to snap back when he fell. (He noted this fall occurred in 1984.) He also asserted he had fallen many times since, including recently when his knee gave out and he slipped and fell on steps covered in snow. The record contains numerous medical opinions favorable and unfavorable to the claim that address (to varying degrees) whether the knee disabilities caused or aggravated his cervical spine disability. The Veteran submitted a private opinion dated in June 2015, wherein a nurse practitioner indicated that he had chronic neck pain from a January 2005 fall after a left knee replacement and continued to experience falls including one in March 2015. A September 2015 VA examiner found the Veteran's cervical spine disability was not likely to have been caused by or aggravated by his left or right knee disability. In that opinion and an addendum opinion in November 2015, the examiner discussed the different cervical spine diagnoses and the Veteran's multiple risk factors that contributed to the development of the diagnoses (noting the need for speculation to relate the cervical spine disability to the knee disabilities). The examiner furnished a further opinion in March 2019, concluding that there were no objective findings of worsening of the cervical spine due to an alleged fall in "May 2015" (without addressing the 2005 fall). Then, in a March 2020 opinion, an orthopedic surgeon found no medical relationship between the cervical spine and knee conditions and no indication in the records of a permanent worsening of the cervical spine due to any specific fall related to the knees. [The aggravation prong for establishing entitlement to secondary service connection, however, requires worsening of the claimed disability, not permanent worsening of the disability. See Ward v. Wilkie, 31 Vet. App. 233, 240 (2019).] A May 2021 VA opinion by a physician assistant was contradictory, reflecting both that the cervical spine disability was less likely than not proximately due to or the result of his left and right knee disabilities (as well as his service-connected low back strain) and that it was aggravated beyond natural progression by the service-connected knee disabilities. The examiner stated, without full explanation, that there was "ample documentation of increasing or worsening neck pain following falls due to the knee condition beginning in 2005 to the present." Finally, another physician assistant, in a clarifying VA opinion in September 2021, concluded that it was less likely than not that the cervical spine disability was either (a) proximately due to or the result of the left and right knee disabilities or (b) aggravated by the right knee disability. Significantly, however, the examiner also found the cervical spine disability was at least as likely as not aggravated beyond its natural progression by the left knee disability, furnishing an explanation that cites to earlier diagnostic findings in 1999 and 2005 and to the June 2015 opinion and states the plausibility that cervical disc herniation and disc bulging (as seen on the July 2005 MRI) supported aggravation by the left knee replacement. Due to various medical opinion deficiencies (as identified by the CAVC and the Board in each remand), VA has been compelled to repeatedly seek a new opinion, the culmination of which is a September 2021 opinion. While this latest opinion is not as comprehensive as it could be (e.g., it does not address some of the discrepancies in the Veteran's statements or explain the reasons for disagreement with some of the unfavorable opinions), it is perceived as being probative of the matter at hand and sufficient at this point to decide this claim. It is consistent with the other opinions in June 2015 and May 2021, specifically as to the aggravation theory of entitlement to service connection. The Board concludes that the September 2021 opinion is as probative as the other medical opinions with which it conflicts solely in regard to the nexus element of aggravation. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current cervical spine disability has aggravated beyond its natural progression by his service-connected left knee disability. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that secondary service connection for a cervical spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.