Citation Nr: 21068240 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-57 526 DATE: November 9, 2021 ORDER Service connection for a cervical spine condition is denied. THE VETERAN'S CONTENTIONS The Veteran acknowledges that his cervical spine condition existed prior to service. See February 2020 Board hearing transcript, p. 2. He contends, however, that his condition was aggravated beyond normal progression during his service, as his in-service position involved reaching, bending, and twisting. Id., p. 2, 8-9; see also October 2010 VA Form 9; May 2017 notice of disagreement. He stated that his job as an aviation electrician required him to wear a heavy helmet and the plane wings were only five feet off of the deck so he had to walk with his neck tilted to one side all day long, and he now has limited range of motion in his neck with pain. See November 2016 statement in support of claim. He asserts that although he did not receive formal treatment for his neck immediately after leaving the military, it has bothered him since his service. See February 2020 Board hearing transcript, p.17. FINDINGS OF FACT 1. A cervical spine condition was noted when the Veteran entered active duty service. 2. There is clear and unmistakable evidence that the Veteran's cervical spine condition was not aggravated by his service or that the aggravation was due to the natural progression of the disability. CONCLUSION OF LAW The criteria to establish service connection for a cervical spine condition are not met. 38 U.S.C. §§ 1110, 1153, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Navy from November 1974 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2020, this issue was remanded by the Board. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Veteran's September 1974 entrance examination noted a cervical spine condition. His September 1974 report of medical history stated that he was involved in an automobile accident in October 1971 and required a spinal fusion in 1972. As the Veteran's cervical spine condition existed prior to military service, the claim is one of entitlement to compensation based on aggravation of a preexisting disability. 38 U.S.C. § 1153. Where a preexisting disease or injury is noted on the entrance examination, 38 U.S.C. § 1153 provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. Clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the disability at issue. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a noncombat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under 38 U.S.C. § 1153 unless the underlying condition worsened. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). The Veteran served on active duty during a period of war. As such, the regulations direct VA to presume that the Veteran's preexisting cervical spine condition was aggravated by active duty if the evidence demonstrates that it underwent an increase in severity during his active service. In order to rebut this presumption, it must be shown by clear and unmistakable evidence that the Veteran's cervical spine condition was not aggravated or that the aggravation was due to the natural progression of the disability. The service treatment records (STRs) show that, in January 1976, the Veteran received treatment for a cervical spine condition, which was diagnosed as probable muscle strain. Later that month, the Veteran reported that his cervical spine condition had gotten worse. A September 1976 report of the Medical Board noted that, in October 1971, the Veteran was in an automobile accident which resulted in a cervical spine fracture, and that he had done well until six months ago when he made several visits to the orthopedic clinic complaining of chronic neck and shoulder pain. The report noted that he also experienced headaches which he attributed to his neck surgery and that the pain occurred towards the end of the day and was made worse by heavy physical exertion such as working on the flight line refueling aircrafts. At that time, the Veteran was required to wear a safety helmet which he felt was fatiguing and a safety hazard as it restricted his visual field and he could not fully turn his head to the side. The Medical Board determined that the Veteran was not fit for active duty due to his physical disability which was neither incurred in nor aggravated by his period of active duty service. However, a September 1977 STR showed that the Veteran had full range of motion of his cervical spine and was asymptomatic. The Veteran's May 1978 exit examination noted that his spine was normal. Post-service VA treatment records show complaints of neck pain and diagnoses of spinal stenosis in the cervical region, cervical spondylosis with myelopathy, osteopenia, and severe degenerative disc disease lower cervical spine with some neural foraminal encroachments. The Veteran underwent a VA cervical spine examination in February 2017. The examiner diagnosed cervical fusion occupitut to C3 with a date of diagnosis in 1970. The examiner determined that the Veteran's condition clearly and unmistakably existed prior to service; however, he opined that it was not aggravated beyond its natural progression by an in-service event, injury, or illness. In his rationale for this negative opinion regarding aggravation in service, the examiner acknowledged that the Veteran was treated for a muscle sprain to his neck while on active duty. However, he found no evidence that there had been a chronicity of the problem since service. Pursuant to the May 2020 remand directives, another VA examination was conducted in May 2021. The May 2021 VA examiner diagnosed a vertebral fracture in 1971 and a spinal fusion in 1972. She also determined that the Veteran's condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that, although the Veteran continued to suffer from the disorder during service, this was typical of the condition and the progression was not beyond the normal progression for this disorder. She acknowledged the Veteran's report that his work experiences while in service aggravated his neck condition; however, she determined that this was not supported by the Veteran's medical records. There is no contrary competent medical opinion of record. In light of the service treatment records showing improvement in the Veteran's cervical spine condition, and the February 2017 and May 2021 VA examiners' opinions noted above, the Board finds that there is clear and unmistakable evidence that the Veteran's cervical spine condition was not aggravated by his service or that the aggravation was due to the natural progression of the disability. Accordingly, the Veteran's claim of entitlement to service connection for a cervical spine condition is denied. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.