Citation Nr: 21067757 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 18-15 403 DATE: November 5, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's cervical spine disability is related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1977 to August 1984. In October 2020, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (Board) in February 2021 for additional development. It now returns for further appellate review. 1. Entitlement to service connection for a cervical spine disability The Veteran contends that he is entitled to service connection for a cervical spine disability because he injured his cervical spine when jumping out of a Bell UH-1 Iroquois (a utility military helicopter) while the helicopter was hovering at 15 feet. See Hearing Transcript. Legal Criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption 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. Relevant Facts and Analysis Presumptive Service Connection The Board considered whether the Veteran's cervical spine arthritis was entitled to presumptive service connection. Arthritis will be presumed to be incurred in service if it manifested to a compensable degree (meaning 10 percent disabling) within one year after discharge from service. See 38 U.S.C. § 1110, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). However, the record does not show that the Veteran was diagnosed with cervical spine arthritis within one year of separation from service in August 1984. In fact, the Veteran was not diagnosed with degenerative arthritis until March 2016 (See March 2016 VA Addendum Note, in CAPRI received January 2018), which is approximately 31 years after active service. Therefore, the Veteran did not establish that his cervical spine arthritis was a chronic condition for the purpose of establishing presumptive service connection. Direct Service Connection The evidence of record confirms the Veteran has a current cervical spine disability. Specifically, in October 2020, an x-ray reveals that the Veteran has mild spondylotic changes of the cervical spine. See October 2020 Carilion Family and Internal Medicine Private X-ray Report. The Veteran was also diagnosed with cervical strain during the February 2018 VA examination. See February 2018 VA Cervical Spine Conditions Disability Benefits Questionnaire (DBQ). Additionally, the Veteran's VA treatment records indicate that he was diagnosed with cervical spine arthritis based on a March 2016 X-Ray Report. See March 2016 VA Addendum Note, in CAPRI received January 2018. Thus, the first element of service connection, a current disability, has been met. Turning to the second element of service connection, an in-service event or injury, the Veteran testified during the October 2020 Board hearing that he injured his cervical spine when jumping out of a Bell UH-1 Iroquois. See Hearing Transcript. He asserts that when he jumped and rolled out of the helicopter, he heard his neck crack, and had difficulty moving afterwards. He further states that his symptoms of neck pain have continued since his in-service injury. Id. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, based on the Veteran's competent and credible lay statement and testimony, the second element of service connection has been established. The question for the Board is whether there is a nexus between the Veteran's current cervical spine disability and his active service. The Board finds that this essential element has not been established based on the evidence of record. At the outset, it is important to note that in February 2021, the Board found that the February 2018 VA medical opinion was inadequate for failing to address the Veteran's lay statements and relying on inaccurate facts. See February 2021 Board Remand. As such, the Board will not discuss the February 2018 VA medical opinion. In August 2021, pursuant to the February 2021 Board remand, VA obtained an addendum medical opinion from a different VA examiner. See February 2021 VA Medical Opinion DBQ. The examiner determined that based on a review of the Veteran's medical history and his review of the Veteran's lay statement that his disability was not consistent with medical knowledge and is implausible because there should have been some reports as to his neck issues in service. He also determined that the Veteran's disability was most likely incurred due to wear and tear, his career as a truck driver, other activities, and possibly his morbid obesity. Finally, upon review of the record, the examiner asserts that it would not be presumptive that there would be some indication within the Veteran's STRs of a problem with his neck. Essentially, the examiner relied upon three different reasons as to why there was no nexus. See August 2021 VA Medical Opinion DBQ at 5. In looking at this examination report, the Board finds that the June 2021 VA medical opinion is entitled to great probative weight especially where VA examiners are not under a duty to provide an adequate statement of reasons and bases. See Monzigo v. Shinseki, 26 Vet. App. 97, 105 (2012) (per curiam). Importantly, the opinion was based on a review of the claims file and considered the Veteran's lay reports, the medical evidence, and provided an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Notably, the Board is cognizant that the examiner's finding that there should be some notation in the STRs as to his neck as one basis to not find a nexus, must have a sufficient foundation. The Board finds that there was a sufficient foundation, where the examiner's opinion is logical where the Veteran has reported a significant amount of medical issues. For instance, in looking at the Veteran's STRs, the Veteran was evaluated in August 1983 for Chapter 13, and he reported in his Report of Medical History that he was in poor health and that he had recurrent back problems. Yet the only back problem found by the examiner was related to low back pain (LBP). In June 1980 he jumped off of a truck and hurt his ankle. In June 1984, he jumped from a tree and hurt his back. However, there is no indication of a jump from the helicopter. Essentially, the Board finds that the August 2021 VA medical opinion provides competent, credible, and probative evidence. Furthermore, the Board considered the Veteran's lay statement that he asserts that his current disability is related to service. However, while the Veteran may be competent to report having cervical spine symptoms since service, he is not competent to determine the etiology of his cervical spine disability, where the issue is medically complex, as it is here, and where it requires knowledge of interpretation of complicated diagnostic medical testing and development of orthopedic conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As an aside, the Board reviewed the Veteran's spouse's lay statement and testimony, but it does not provide sufficient information to link the Veteran's disability to service where it does not state that there is a connection to service. Alternatively, the nexus element can be established with evidence of continuity of symptomatology. However, the Board does not find that this was established. Importantly, the Board does not find that the Veteran's condition was noted in service. While the Veteran's neck was evaluated in service when he reported that he had cold symptoms and left ear pain, the examiner found that his left anterior cervical nodes, was diagnosed as bilateral serous otitis. See May 1984 STR, Record of Acute Medical Care. Essentially, there is no evidence of a neck condition, where his Chapter 13 examination in August 1983 found his neck to be normal upon clinical evaluation. Indeed, he even noted that he was having recurrent back pain, but it was found to be low back pain (LBP). However, assuming arguendo that it was noted in service, taking into consideration the Veteran's lay statement that his current disability is related to service due to his symptoms over the years, the Board finds that August 2021 VA medical opinion is more probative. For instance, the August 2021 examiner determined that based on the Veteran's explanation as to the injury, based on his medical expertise, the "claims [we]re not consistent with medical knowledge and are implausible." See August 2021 Medical Opinion DBQ at 5. He explained that "it was not presumptive to assume that if the jumps or landings caused neck problems some neck complaints would be noted in the record." Id. The Board finds that the examiner's rationale on this point is logical, especially where the Veteran's STRs reflect that he reported recurrent back pain at his August 1983 separation examination due to an injury sustained six months earlier, when he jumped from a tree. See June 1984 Record of Acute Medical Care, in STR-Medical. Yet, these records clearly indicate complaints were for low back pain (lumbar spine) and not for his cervical pain. In fact, in his Report of Medical History, the Veteran notes a plethora of medical issues, none of which relate to his neck. As stated previously, the Veteran's STRs show that upon clinical evaluation at separation, his neck was considered normal. The examiner also found that it was highly likely that his neck problems, which did not appear for decades later, were incurred due to the wear and tear of his career as a truck driver, other activities, or his morbid obesity. Notably, the earliest post-service treatment record for complaint of neck pain in the claims file is from March 2016. See March 2016 VA Addendum Note, in CAPRI received January 2018 (reported chronic neck pain since active service). This is more than 32 years after separation from service. Notably, the Veteran's spouse has testified and submitted a statement that she noticed his neck pain in November 2012, but this too was over 28 years after service and does not provide sufficient evidence of continuity of symptomatology. The Board acknowledges the Veteran's testimony that he had cervical spine symptoms during service and continued symptoms throughout the years during the October 2020 Board hearing. However, as noted above the earliest post-service evidence of symptoms for neck pain is from March 2016, which is more than 32 years after service. Furthermore, while the Board does not doubt the sincerity of the Veteran's current belief that his symptoms of neck pain has been present since his years in service, the evidence contains some inconsistencies that diminish the reliability of the Veteran's current recollections, such as his Chapter 13 examination, which show that his neck was normal in August 1983, and the May 1984 Record of Acute Medical Care, which reflects that the Veteran's neck was evaluated at it was diagnosed as bilateral serous otitis. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.)." Notably, the Veteran has testified that the injury might have happened Summer or Spring of 80 or 81 or 82 or 83, which is prior to these examinations. Furthermore, in looking at the Veteran's in-service examinations, his STRs were silent for treatment of neck or cervical spine pain symptoms. The Board finds that this weighs against the Veteran's lay statement of continuous pain since an in-service injury. As such, the Veteran's lay statements regarding continuity of symptomology are outweighed by the medical evidence of record. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Accordingly, the Board concludes that, while the Veteran has current diagnoses of cervical spine arthritis, and evidence shows that he sustained an injury during active service while jumping out of the Bell UH-1 Iroquois, utility military helicopter, the preponderance of the evidence weighs against finding that the Veteran's cervical spine disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. Accordingly, the Board concludes that the preponderance of the evidence is against the claim and entitlement to service connection for a cervical spine disability must be denied. 38 U.S.C. § 5107 (b)(2012); Gilbert v. Derwinski, 1 Vet. App. at 54-56. Given such, the benefit-of-the-doubt doctrine is not applicable. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.