Citation Nr: 21067868 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 18-21 097 DATE: November 5, 2021 ORDER Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected lumbar spine disability, is denied. FINDING OF FACT The most probative evidence of record does not show that the Veteran has a cervical spine disability that is etiologically related to a disease, injury, or event in service, or to a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability has not been met. 38 U.S.C. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2003 to July 2008. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § § 3.303. To prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Further, where the Veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303 (b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). As arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309 (a), the provisions of 38 C.F.R. § 3.303 (b) pertaining to continuity of symptomatology and of 38 C.F.R. § 3.307 pertaining to presumptive service connection for chronic disease apply to the issue of arthritis. With regard to the duty to notify and the duty to assist, the Veteran has not raised any issues. 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."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Additionally, the Veteran has not alleged any deficiency with his February 2021 hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The Veteran is seeking entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected lumbar spine disability. Additionally, the Veteran suggested at the February 2021 hearing that his neck problems could be a direct result of his service, as his duties in service as a wheeled vehicle mechanic required that he bend over grills and fenders of vehicles for 8 hours a day or crawl underneath the vehicles, contorting his body in all sorts of different directions. He testified that he experienced neck pain during service but indicated he just accepted it as being part of his job. A review of his service treatment record reveals no complaints, treatment, or diagnoses of a neck or cervical spine disability. The April 2008 Report of Medical Examination upon separation from service noted a normal spine on clinical evaluation. In a May 2016 Disability Benefits Questionnaire (DBQ), the Veteran was noted as having neck muscle spasm. In a May 2016 opinion, the VA examiner determined that the condition claimed is less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner noted that there is no basis in medical fact. The cervical spine condition, diagnosed at examination as neck muscle spasm, is not connected etiologically or "pathophysiologically" to his service-related thoracolumbar spine pathology. There is no abnormality of station or gait to link cause or permanent aggravation of a neck condition to thoracic or lumbosacral spine conditions. Neck symptoms began many years after the initial injury to the lower back in service. Neck pain due to muscle spasm is a common problem in office workers who spend many hours on a computer. It is reasonable to posit that neck pain is more likely than not caused by ergonomic and repetitive use factors given his work history. In September 2021, a VA examiner determined that it is less likely than not that the Veteran's neck disability was incurred during or was caused by the Veteran's service. There is no evidence of any neck pain during service. Neck pain caused by occupational activities would usually occur during the time spent doing the activity or shortly thereafter within a day or two. It would get better when away from the activity and worse with resumption of the activity. There is no evidence of neck pain related to the Veteran's activity as a wheeled-vehicle mechanic found in the medical records. The May 2016 VA examination noted that he was at a computer for most of his workday, not working as a mechanic. The examiner further concluded that it is less likely than not that the Veteran's neck disability was caused by or aggravated by the Veteran's service-connected lumbar spine disability. The Veteran's lumbar spine disability was present for several years before his neck symptoms occurred. There is no evidence identified in the medical literature to support the contention of the Veteran's service-connected lumbar spine disability as a cause or aggravating factor of neck pain in the absence of a significant postural abnormality or significant gait abnormality of a long-term chronic, ongoing nature. The article submitted by the Veteran's representative attempted to evaluate thoracic spine dysfunction as a predisposing factor of neck pain. The Veteran has not been diagnosed with and is not service connected for thoracic spine dysfunction. The article found that there was a correlation between thoracic kyphos and forward head posture but not neck pain intensity and disability. Thoracic kyphosis could not be confirmed as a risk factor for development of neck pain. The authors concluded "thoracic kyphosis cannot be established as a risk factor for neck pain development." The article did not address any lumbar dysfunction. If thoracic dysfunction cannot be identified as a cause of neck pain, it is even less likely that any lumbar dysfunction would be a cause of neck pain, or an aggravating factor. The examiner noted that the medical records and literature were reviewed. Upon review of the claims file, the Board finds that the most probative evidence of record does not link the Veteran's cervical spine disability to service or to a service-connected disability. Specifically, the September 2021 VA examiner determined that it is less likely than not that the Veteran's neck disability was incurred during or was caused by the Veteran's service. The examiner further concluded that it is less likely than not that the Veteran's neck disability was caused by or aggravated by the Veteran's service-connected lumbar spine disability. The Board finds this opinion is the most probative medical evidence of record on the matter, as the examiner reviewed the claims file and provided detailed rationales for these opinions. Moreover, there are no medical opinions of record on this matter to the contrary. The Board has considered the medical literature submitted and cited by the Veteran's representative reflecting that the cervical, thoracic and lumbar spines are interrelated biomechanically. However, the Board finds that such generic texts, which do not address the facts of this particular Veteran's case, and with a sufficient degree of medical certainty, do not amount to competent medical evidence of causality. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). Additionally, the Board has considered the Veteran's contentions that he has a cervical spine disability related to his service or to a service-connected disability. However, the Board finds that the Veteran is not competent to provide such links, as he has no medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377. As such, the Veteran's opinion is afforded little weight in the analysis of whether a nexus between his current cervical spine disability and his service or a service-connected disability exists. In summary, as the most probative medical evidence of record on the matter does not link the Veteran's cervical spine disability to service or to a service-connected disability, and the Veteran is not competent to provide the link himself, the Board finds that the preponderance of the evidence is against the claim for service connection for cervical spine disability, and the benefit-of-the-doubt rule is not for application. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.