Citation Nr: 21067235 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-27 357A DATE: November 3, 2021 ORDER Service connection for cervical spine degenerative disc disease and degenerative changes with stenosis is denied. FINDING OF FACT The Veteran's cervical spine degenerative disc disease and degenerative changes with stenosis was not shown as chronic in service and 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 degenerative disc disease and degenerative changes with stenosis have not been 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 FINDING AND CONCLUSION The Veteran served on active duty from July 1981 to July 2001. On appeal is a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for cervical spine degenerative disc disease (DDD) and degenerative changes with stenosis. The Veteran testified at a hearing before a Veterans Law Judge in this matter in February 2017. A transcript of that hearing has been associated with the Veteran's claim file. In July 2018, October 2019, and August 2020, the matter came before the Board of Veterans' Appeals (Board). Each of these times the Board remanded for additional development. In February 2021, the Board sent a letter to the Veteran, advising him that the Veterans Law Judge who conducted the Board hearing in this matter was no longer employed by the Board, and thus no longer available to participate in any decision made on the appeal. The Veteran was given the option to: (1) decline another Board hearing and have his case considered on the evidence of record; or (2) appear at another Board hearing via video teleconference, at the Board's offices in Washington, D.C. or in-person at his local VA Regional Office. In an April 2021 decision, the Board noted that the Veteran did not respond to the correspondence about a hearing, and it was presumed that he did not desire another Board hearing. The Board then denied service connection for cervical spine DDD and degenerative changes with stenosis. In May 2021, it was discovered that due to an administrative error, a letter from the Veteran dated March 7, 2021, was not associated with the claims file until April 27, 2021 (after the issuance of the Board's April 2021 decision denying service connection). In the Veteran's letter, he confirmed that he wanted another Board hearing via videoconference. Thus, in May 2021, the Board vacated its April 2021 decision, finding that due process required vacatur because the decision was issued without fulfilling the Veteran's hearing request. The Veteran was given another opportunity to appear at a Board hearing before a Veterans Law Judge who would decide the claim. A new hearing was scheduled in September 2021. The hearing was cancelled. The record does not indicate that the Veteran, or his representative, have offered a request to reschedule the Board hearing. As such, the Board will proceed with adjudication. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also of record are VA examinations conducted in January 2013, July 2018, and September 2020. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In addition, certain chronic diseases, such as arthritis, 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). Entitlement to service connection for cervical spine degenerative disc disease (DDD) and degenerative changes with stenosis. The Veteran seeks service connection for cervical spine DDD and degenerative changes with stenosis. More specifically, in his March 2014 Notice of Disagreement (NOD), the Veteran stated he was treated for a neck injury in July 1990. He stated the injury was caused in the field when he opened a tailgate door on a 5-ton truck and when he started to walk to the other side, the tailgate door slammed down on his head. He said he was lucky he was warring a helmet, but it still knocked him out for a few minutes. He described having a bad headache with pain from his neck down to his tail bone. The Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a nexus between the Veteran's service and his current cervical spine DDD and degenerative changes with stenosis. Service treatment records are associated with the Veteran's claims file. The October 1980 enlistment Report of Medical Examination reflects the Veteran had a normal examination and was determined to be fit for duty. The companion October 1980 entrance Report of Medical History reflects the Veteran indicated he was in good health and on no medications. During service, a July 1990 record reflects the Veteran complained of pain on the right side of his neck along with headache and dizziness. He was diagnosed with a right trapezius strain and prescribed Motrin. An October 1992 periodic Report of Medical Examination reflects the Veteran had a normal examination, no defects or diagnosis were noted, there was no complaint of neck pain, and the Veteran was deemed qualified for retention. The November 2000 exit Report of Medical Examination reflects the Veteran had a normal spinal examination with no complaint of neck pain indicated. The companion November 2000 exit Report of Medical History reflects the Veteran reported he was in fair health, taking no medications, and there was no complaint of neck pain noted. Post service VA treatment records from the Tucson VAMC are associated with the Veteran's claims file. In summary, these records reflect the Veteran has reported chronic neck pain over the years, with the earliest complaint of neck pain documented in January 2010. A January 2010 record reflects the Veteran was new to the VA and seen to establish care. His complaints included pains in his ankle, hernia, and left shoulder. The examiner noted that the Veteran complained of left shoulder pain radiating to neck, with onset of left shoulder pain 2 months ago. A February 2011 record reflects the Veteran complained of neck pain. Upon examination, it was noted his neck was tight, there was full range of motion, and no spasm. A May 2011 neurosurgery consult record reflects the Veteran reported a long-standing history of neck pain. A May 2011 MRI of the cervical spine showed cervical stenosis. A May 2012 record reflects the Veteran was seen for several complaints, including neck and generalized aches/pains. He was diagnosed with neck pain/arthralgias and started on tramadol. The Veteran underwent a VA examination for his cervical spine in January 2013. The examiner diagnosed the Veteran with degenerative disc disease and degenerative changes cervical spine with stenosis. The examiner noted the Veteran reported the following medical history as it relates to his neck pain: About 1998, he suffered injury in service when a tailgate fell on his head and he had neck pain. Veteran states he was not seen in medical. Veteran reports multiple other small incidents involving neck trauma in service for which he was not seen in medical. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated the Veteran has a current cervical spine degenerative disc disease and degenerative changes with spinal stenosis. Although the Veteran reports multiple cervical injuries in service, the STRs show no history of cervical injury. As the Veteran was seen multiple times for other medical issues in service, the examiner reasoned, it does not seem likely he would not present for treatment of cervical trauma. He did have a diagnosis of right trapezius strain noted in 1990. At the time of his retirement physical in November 2000, the Veteran did not report ongoing problems with neck pain or muscle strain/spasm in the neck, and spinal exam was normal. On examination, the Veteran reports he started with neck symptoms about 2010, 9 years after discharge from service. Therefore, the examiner concluded, the Veteran does not have a history of a pattern of disability for neck condition in service or in the year after discharge from service. He reports no specific neck symptoms until 20 years after the documented incident of trapezius strain; therefore, his current symptoms are unlikely related to the service incident. The Veteran underwent another VA examination in March 2019. The examiner noted a diagnosis of cervical spine degenerative disc disease and degenerative changes with stenosis. The examiner noted the Veteran reported date of onset as July 10, 1990 when his unit was tasked to move 10,000 camouflage screens and poles for a unit that did not bring their own system. He indicated he sought medical care at the time and the condition has gotten worse. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the examiner stated that there was only one record of right-side neck pain noted during service, with no other records of a cervical condition until 2011. Therefore, after records review, the examiner found that it is less likely as not that the Veteran's current cervical condition was incurred in and or caused by cervical degenerative disc disease or injury during service. As noted in its October 2019 remand, the Board finds this opinion inadequate, as the examiner based her opinion entirely on a lack of medical evidence in the service treatment records and contemporaneous medical records. In addition, the examiner did not adequately address the Veteran's reports of in-service injuries or continuity of symptomatology, as requested in the July 2018 remand. Lastly, the examiner only explicitly considered the Veteran's separate report of an in-service injury. A new medical opinion was obtained in November 2019. The examiner opined that after reviewing the records, the Veteran's cervical spine disability was less likely than not related to his service, including his reported in-service neck injuries, specifically injuring his neck while removing a transmission from a truck, in Vilsack, Germany; enduring a head collision with a truck tailgate door in Kissinger, Germany; performing in a war game operation in Germany; and moving 10,000 camouflage screens and poles in Fort Lewis. As rationale, the examiner stated there is no medical evidence from the Veteran's records to suggest neck pain during service other than a single note on July 10, 1990 where he sustained a headache with associated neck pain. All other evidence from the Veteran's medical record for neck pain was after service. As well on the Veteran's retirement exam, he did not endorse neck pain but only recurrent back pain. As noted in its August 2020 remand, the Board finds this opinion inadequate, as the examiner based his opinion entirely on a lack of medical evidence showing neck pain in the service treatment records and provided no rationale to support his opinion. In addition, the examiner did not adequately address the Veteran's reports of in-service injuries or continuity of symptomatology, as requested in the October 2019 remand. Finally, another VA medical opinion was obtained in September 2020. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness, to include his reported in-service neck injuries, specifically injuring his neck while removing a transmission from a truck, in Vilsack, Germany; enduring a head collision with a truck tailgate door in Kissinger, Germany; performing in a war game operation in Germany; and moving 10,000 camouflage screens and poles in Fort Lewis. As rationale, the examiner stated he found no record of chronic or recurrent neck problems with radiculopathy beginning in service to correlate to the current condition. Although complaints of neck pain are found in the record, no evidence exists to support a link to the current conditions. The examiner acknowledged the in-service incidents; however, no element of such severe neck findings was found in symptomology dating to service. Although there is a record of treatment in service for a neck condition, no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence from the period immediately following separation from the service. Instead, the Veteran worked in aircraft maintenance for almost a decade before reporting neck pain symptoms. The examiner stated that it is "not a simple case of lack of documentation of neck pain." The Veteran's neck condition is advanced enough to cause significant radiculopathy, but no findings in the file suggest he had these symptoms in service. The examiner stated he found no evidence in the file to correlate the neck problems to any specific service injury or incident in service, to include all the incidents the Veteran reported in service. Lay evidence is also associated with the Veteran's claim file. As noted above, in his March 2014 notice of disagreement, the Veteran stated he was treated for a neck injury in July 1990. He stated the injury was caused in the field when he opened a tailgate door on a 5-ton truck and the tailgate door slammed down on his head. In an August 2015 lay statement, the Veteran stated he was injured in July 1990 and has had neck pain ever since. At the February 2017 hearing in this matter, the Veteran testified that he sustained multiple injuries in service that caused neck pain. He stated there was an injury that occurred in Kissingen, Germany, when a tailgate that weighs approximately 1000 pounds hit him on his head for which he did not get medical help. He testified that there was another incident in Germany during a nighttime operation in which he was struck hard in the head with a foot to the point that he basically got down to his knees. He testified another injury occurred in when taking a transmission out of a truck. Lastly, the Veteran testified that in the military, training once or twice a week involved carrying heavy logs and running with them for three to four miles. Presumptive Service Connection The Veteran has a current diagnosis of cervical spine DDD and degenerative changes with stenosis. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Board finds, however, that the Veteran's cervical spine disorder was not shown as chronic since service and did not manifest to a compensable degree within the presumptive period of one year. VA treatment records show the Veteran was not diagnosed with degenerative arthritis of the cervical spine until May 2011, when an MRI of the cervical spine showed cervical stenosis. This was over 9 years after the Veteran's separation from service and outside of the applicable presumptive period. Thus, entitlement to service connection for cervical spine DDD and degenerative changes with stenosis on a presumptive basis, or on the basis of continuity of symptomatology since service that is attributable to a chronic disease, is denied. Direct Service Connection The Board finds that the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's cervical spine DDD and degenerative changes with stenosis and an in-service injury, event or disease. Here, the contentions of the Veteran are outweighed by the findings of the September 2020 VA examiner, who provided a thorough rationale for the conclusion that the Veteran's current cervical spine DDD and degenerative changes with stenosis is less likely than not related to service. As noted above, the examiner noted no record of chronic or recurrent neck problems beginning in service. The examiner also noted that the Veteran worked in aircraft maintenance for almost a decade before reporting neck pain symptoms and his neck condition is advanced enough to cause significant radiculopathy; there are no findings in the file that suggest he has had these symptoms since his time in service. The Board finds this rationale persuasive as the fact remains the Veteran's earliest documented complaint of neck pain is noted over 9 years after his active-duty service. The Board accepts the Veteran's credible reports of neck pain, including his testimony at the February 2017 Board hearing. However, the Board finds the Veteran's statements about the origin of his neck pain to be inconsistent. The Veteran initially said in March 2014 that his neck injury was caused by a truck's tailgate door falling on his head. He later reported in his March 2019 VA examination that his neck injury was due to moving camouflage screens and poles. At his hearing he testified there were multiple injuries that caused his neck pain, that included handling a transmission and being hit in the head during war games training. Another inconsistency noted was that the January 2010 STR reflects neck pain associated with a left shoulder injury, while the Veteran testified at the Board hearing that he has neck pain associated with his right shoulder. As such, the Board has afforded less probative value to the Veteran's lay statements about the origin of his neck pain. Moreover, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, etiology of the Veteran's current cervical spine disorder, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report symptoms of a cervical spine disorder, such as neck pain, the claimed disability is not the type of condition that is amenable to lay determination regarding its etiology, as specific findings are needed to properly determine etiology. Id.; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board concludes that, while the Veteran has a current diagnosis of cervical spine DDD and degenerative changes with stenosis, the preponderance of the evidence is against finding that his cervical spine DDD and degenerative changes with stenosis began during active service, or is otherwise related to an in-service injury, event, or disease. Thus, while the first and second Holton elements are met, the third element has not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). The claim for direct service connection fails on this basis. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jiggetts, Tenisha 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.