Citation Nr: 21068723 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-16 980A DATE: November 12, 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 began during active service, manifested within a year of separation from service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131; 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 in the United States Coast Guard from March 1981 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This matter was before the Board in April 2019, when it was remanded for further development. The Board finds that there has been substantial compliance with that remand, and the matter is ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, and to those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to service connection for a cervical spine disability is denied. The Veteran seeks service connection for a cervical spine disability and asserts that his current cervical spine disability is the result of an injury received during his service specifically, a pinched nerve and whiplash experienced in December 1984. As will be outlined below, the Board finds service connection is not warranted. Service connection may be granted if the evidence demonstrates that a Veteran's current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred during service in the Armed Forces or, if preexisting such service, was aggravated therein. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Alternatively, service connection may be established by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. See 38 C.F.R. § 3.303(b). Arthritis is a chronic condition under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of their current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis, or to establish etiology, if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; see Lynch v. McDonough, 999 F.3d 1391, 1394-95 (Fed. Cir. 2021); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question for the Board is whether the Veteran has a current disability that began during service or within one year of separation from service, or which is at least as likely as not related to an in-service injury, event, or disease. Here, service treatment records confirm that in December 1984 the Veteran was treated for neck pain. At that time, following two days' bed rest ordered by an emergency room physician, the Veteran received treatment on base for a nerve pinch in his neck, characterized as whiplash. He complained of moderate to severe pain upon standing and sitting. He was told to lay down for the day and to return the following day if pain persisted. Aside from this incident, his service treatment records are otherwise silent with regard to neck-related complaints, treatment, or diagnoses. There is no indication the Veteran ever followed-up with any additional complaints, injuries, or manifestations of the neck prior to his separation. Indeed, his June 1985 separation examination noted no abnormality with his neck or spine and the Veteran himself reported he was in good health and had never experienced recurrent back pain or any bone, joint, or other deformity. After service, the first treatment records in the claims file indicative of neck-related complaints are dated in 2004, to include a May 2004 private treatment record where the Veteran complained of neck pain after camping with migraines, and pain on both sides of his head. He was diagnosed with a tension headache secondary to tobacco withdrawal. In December 2004, the Veteran was treated for a complaint of neck pain. The private physician stated that the Veteran had gone bowling, that his neck was stiff afterward, and that after having "popped" his neck he was in "agony". The physician diagnosed acute neck pain, somatic dysfunction, and cervical-thoracic strain. His physical therapist reported that the Veteran had a cervical strain, and that he exhibited left-side cervical pain and tenderness following an injury or strain while bowling. The Veteran's neck produced an audible "crack" while twisting or stretching at home. In January 2005, the Veteran was evaluated for left upper extremity pain prior to surgery. The evaluating physician stated that the Veteran complained of left neck and arm pain for the preceding six weeks, with symptoms having started in December 2004 when he sustained an injury after bowling. The evaluating physician stated that the Veteran was suffering from neck pain "likely due to mild C6 radiculopathy." Later that month, the Veteran received a C5-C6 anterior cervical diskectomy, fusion, and plate insertion for diagnosed left-side C6 radiculopathy with left C5-C6 herniated disc. In April 2005, the Veteran's physician diagnosed neck and thoracic spinal pain as well as degenerative joint disease of the cervical spine. A separate follow-up note from June 2005 stated that the Veteran had degenerative disc disease of the cervical spine. In December 2009, the Veteran slipped and fell on the ice, and experienced mild right shoulder and neck pain thereafter. Imaging showed that one of the screws from his prior surgery had fractured. In February 2010, the Veteran was operated on to repair the ruptured spinal fusion. A private hospital record from September 2010 stated that the Veteran experienced neck or cervical pain and had previously engaged in "lots of motor sports" with "multiple fractures and injuries." A VA treatment record from September 2010 stated that the Veteran had "long-standing cervicalgia due to a motor cross injury 1995 landing on his right shoulder and was told he had a ruptured cervical disc." A November 2007 private treatment record also refers to a 1990s motorcycle accident resulting in a right shoulder injury and arthroplasty. In April 2011, the Veteran was treated by a private physician pursuant to the Veteran's Social Security claim. The examiner stated that the Veteran had a history of chronic neck pain, and that the Veteran had said he had injured his neck during service. The examiner also stated that the Veteran fractured his clavicle in 1998 and had an acromioclavicular joint resection as a result of an all-terrain vehicle accident. In May 2011, an evaluating physician noted that the Veteran had two prior cervical decompression and fusion surgeries of the C5-C6 vertebrae. In August 2020, the Veteran received a VA contract examination. The examiner diagnosed the Veteran with spinal fusion, spinal stenosis, and cervical radiculopathy, and noted an existing diagnosis of degenerative disc disease of the C6-C7 vertebrae. The examiner opined that the Veteran's cervical spine condition was less likely than not incurred in service or caused by his service. The examiner explained that although the Veteran did have a current cervical spine disability, he had said that his neck did not start bothering him until after a motorcycle accident in 2000, 15 years after his separation from service. The examiner also stated that no mention of neck pain was made by the Veteran at the time of his discharge medical examination in June 1985. In February 2021, the examiner provided an addendum opinion clarifying his earlier examination report. The examiner opined that the Veteran's cervical spine disability was less likely than not related to service, including the pinched nerve experienced in December 1984. The examiner referenced the Veteran's December 1984 treatment for a pinched nerve / whiplash, explaining that there was no further discussion of this condition until after 2000 and that the Veteran did not have pain at his separation exam. In short, the medical records show one in-service treatment for neck pain in December 1984, with a subsequent June 1985 normal separation examination. After service, there are references to numerous post-service injuries, to include a 1990s motorcycle injury and/or 1995 motor-cross injury, a 1998 all-terrain vehicle accident, a 2000 motorcycle accident, a 2004 bowling injury, a 2009 slip-and-fall injury on ice, and other references to "lots of motor sports" accidents after service. The Veteran was afforded a VA contract opinion in August 2020 with addendum opinion in February 2021, which together found the Veteran's cervical spine disability less likely than not related to service, to include the December 1984 injury, in light of the normal separation examination, the lack of complaints for over 10 years after service, and the significant medical history of neck injuries and treatment thereafter. Based on the preponderance if the evidence, the Board finds that service connection for a cervical spine disability is not warranted. Viewing the evidence as a whole, the Board concludes that, while the Veteran has current diagnoses of spinal fusion, spinal stenosis, cervical radiculopathy, and degenerative disc disease of the cervical spine, and evidence shows that he experienced a pinched nerve in December 1984 during service, the preponderance of the evidence weighs against finding that the Veteran's current cervical spine disability began during or within a year of separation from service, or is otherwise related to an in-service injury, event, or disease. The Board also finds that the August 2020 VA contract opinion and February 2021 addendum opinion together are adequate and highly probative. The opinions reflect thorough consideration of the Veteran's pertinent medical history and treatment. The examiner's opinions are well-reasoned, consistent with the other evidence of record, and supported by an adequate rationale. The examiner accurately reported the Veteran's medical history as well as the relevant history of his diagnoses and treatment. Notably, the August 2020 and February 2021 VA opinions are supported by the evidence found in the Veteran's service treatment records. The Veteran's exit medical examination contained no evidence of a neck or spine abnormality, disability, or condition. Other than the Veteran's single reported incident of a pinched nerve or whiplash in December 1984, the record indicates no other in-service injury or incident causing pain in the Veteran's neck. Additionally, although the Veteran was directed to return to the sick bay following his December 1984 injury if he continued to experience pain after several days, no return visit is documented in his service treatment records. Furthermore, multiple treatment records from both VA and private providers support the VA examiner's explanation that the Veteran's neck problems began more than ten years from service following a motorcycle accident and many other post-service injuries. In particular, the September 2010 VA treatment record attributes the Veteran's cervical spine disability to a 1995 moto-cross injury, and the November 2007 private treatment record notes a similar injury as having occurred in the 1990s. Additionally, other treatment records indicate that the Veteran's cervical spine disability and associated symptoms only began several years after the Veteran's discharge from service. Most notably, the Veteran's private physician stated in January 2005 that the Veteran's symptoms of neck pain began in December 2004 following a possible injury while bowling and subsequent self-performed neck "crack", and the surgeon who performed the Veteran's C5-C6 diskectomy and fusion stated that the disc rupture which precipitated the need for surgery was caused by the Veteran's injuries in December 2004, 19 years after separation from service. The Board acknowledges the Veteran's belief that his current cervical spine disability is the result of the injury he experienced during his military service. However, he has not been shown to have the requisite medical expertise to provide an opinion regarding the etiology of a complex medical condition. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion on this point is not probative. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). While he is competent to describe his experience of symptoms, he has not contended as noted above that he has experienced neck or cervical spine pain continuously since service or the first year following separation from service. Based on the foregoing, the preponderance of the evidence is against the claim for service connection for a cervical spine disability; as such, the benefit of the doubt rule is not for application. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David A. F. Litvak 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.