Citation Nr: 21069068 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-27 949 DATE: November 17, 2021 ORDER Entitlement to service connection for cervical degenerative disc disease (cervical spine disability) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's cervical spine disability had its onset during service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for cervical spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1977 to July 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which, among one other thing, denied service connection for cervical spine degenerative disc disease. In September 2011, the Veteran filed his notice of disagreement, was issued a statement of the case in November 2013, and in January 2014 perfected his appeal to the Board. In September 2018, the Board remanded the Veteran's claim for a supplemental addendum opinion regarding the etiology of the Veteran's cervical spine disability. In a July 2019 supplemental statement of the case (SSOC), the RO continued the denial of the claim. In December 2019, the Board again remanded the Veteran's claim for a new VA examination report to determine the etiology of the Veteran's cervical spine disability. In a July 2020 SSOC, the RO continued the denial of the Veteran's claim. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Cervical Spine Disability In his January 2013 Form 9, the Veteran reported that he was treated for neck pain while in service after a fall down a flight of steps. He stated that it "would have been impossible" to not have injured his neck, and that he started having pain and headaches after his fall. March 1994 service treatment records reflect that the Veteran was treated for herniated disks and pain radiating down both legs, and indicate he suffered from a cervical strain. February 2008 private post-service treatment records reflect the Veteran underwent a diskectomy for cervical spondylosis, herniated disc, and spinal stenosis with myeloradiculopathy. June 2009 private post-op treatment notes reflect the Veteran is doing well with his neck, with no complaints except some soreness and stiffness from turning his head while driving. A July 2011 VA examination report indicates that the Veteran reported onset of neck pain in 1988 while on active duty and stationed in Germany when he accidently fell down some stairs, injuring his neck and back. The Veteran stated that since the accident, he has noted intermittent cervical pain requiring pain medications and muscle relaxers. The examining physician noted mild degenerative facet joints at C2-C3, and moderate corresponding bilateral neuroforamina encroachment. The physician opined that the Veteran's cervical spine degenerative disc disease was less likely as not caused by, a result of, or related to the thoracic and lumbar spine disability noted in service, stating that degeneration of the discs, particularly in the moving sections of the spine is a natural process of aging. He stated that this dehydration or desiccation of the disc material reduces the flexibility and typically the height of the disc, and that in most patients, the mere presence of degenerative discs is not a problem leading to pain, neurological compression, or other symptoms. He concluded that traumatic injury to the cervical spine can accelerate the process of degenerative disc disease, but while noting the March 1994 entry in the Veteran's service treatment records of cervical strain, he indicated that the medical documentation would not be a strong enough basis for, or cause of the Veteran's cervical degenerative disc disease, and that there is no significant medical literature to support the claim that the presence of adjacent thoracic or lumbar degenerative disc disease causes cervical degenerative disc disease. Finally, the physician noted the Veteran's report of an in-service injury in Germany, but stated he did not find any medical documentation of the incident, or any documentation of a severe traumatic injury to the cervical spine involving treatment. In a July 2019 VA examination report, the examining physician opined that the Veteran's cervical spine disability was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness, stating that while trauma to the cervical spine can accelerate the process of degenerative disc disease, he found that the Veteran's in-service cervical strain was not a strong enough basis to cause his degenerative disc disease. The physician addressed the Veteran's contention of suffering a fall during service, but found the statement inconsistent with the evidence as the Veteran's service treatment records do not include a notation of a fall resulting in an injury to his cervical spine. The physician opined that the Veteran's cervical spine disability was less likely than not (less than a 50 percent probability) proximately due to, the result of, or aggravated beyond its natural progression by his service connected lumbar spine disability, stating that no back disability can cause or aggravate degenerative joint disease of the neck. The physician stated that only direct trauma to the neck or chronic use can cause degenerative joint disease of the neck, and that no condition that happens to the C-spine can exert its affects upwards and cause degenerative joint disease of the neck. In a December 2019 VA addendum opinion, the physician reiterated that the Veteran's cervical spine disability was less likely than not (less than a 50 percent probability) proximately due to, the result of, or aggravated beyond its natural progression by his lumbar spine disability, stating that no back disability can cause or aggravate degenerative joint disease of the neck, stating that only direct trauma to the neck or chronic use can cause degenerative joint disease of the neck. In an April 2021 disability benefits questionnaire (DBQ), the physician opined that the Veteran's cervical spine disability was less likely than not (less than a 50 percent probability) proximately due to, or the result of his service connected lumbar spine disability, stating that the cervical spine disability is anatomically separate from any lumbar condition, and noting that a review of the medical records does not document a cervical spine disorder during active duty. The physician reported that cervical degenerative disc disease has no relation to lumbar or thoracic degenerative disc disease, thus a nexus cannot be established between his claimed cervical condition and his lumbar disability. In an additional DBQ from April 2021, the physician stated that the Veteran's cervical spine disability is less likely than not (less than a 50 percent probability) due to, or the result of his service connected lumbar spine disability, stating that medical records do not document a cervical spine disorder during active duty, and that the Veteran does not list any complaints related to his cervical spine on his medical history report. The physician reiterated that cervical spine disorders are in an anatomically separate location from the lumbar back, thus a nexus cannot be established between his claimed cervical condition and his service connected lumbar spine disability. The physician also reported in a separate April 2021 DBQ that the Veteran's cervical spine disability was not at least as likely as not (at least a 50 percent probability) aggravated beyond its natural progression by his service connected lumbar spine disability, reporting that the cervical spine disorder is anatomically separate from any lumbar condition, and that lumbar disorders did not have any effect on the cervical disorders. A May 2021 private radiology consultation report indicates that the Veteran has no significant radiographic evidence for arthritis, and reflects post-surgical changes of the cervical spine. In a May 2021 DBQ, the examining nurse practitioner (NP) opined that the Veteran's cervical spine disability was less likely than not (less than a 50 percent probability) proximately due to, or aggravated by his service connected low back disability, stating that the Veteran was found to have "congenital central spinal stenosis" noted in his service treatment records, and that there is no nexus between low back pain and cervical degenerative disc disease, citing the previously provided VA examination opinion to support his rationale. The Board notes the NP's notation on the DBQ indicating that the claimed condition is at least as likely as not due to, or the result of the Veteran's service connected disability. However, considering the NP's provided contradictory statement and thorough rationale as to the etiology of the Veteran's cervical spine disability also included in the DBQ, it is reasonable to conclude that the notation was made in error, and the NP's provided statement will thus be considered as his intended opinion. In a separate May 2021 DBQ, the NP opined that the Veteran's cervical spine disability was less likely than not (less than a 50 percent probability) caused by the claimed in-service injury, event, or illness, stating that while the Veteran may have had neck pain following his fall during service, there is no indication of continuation of care after that date. The NP noted that the Veteran's April 1995 medical examination report indicated no finding of neck pain, his medical history report showed no complaint of neck pain or a neck condition, and a post service note from April 2019 indicated that "the Veteran complained of falling and hitting his head 2 weeks ago and still has double vision and right knee pain" but did not mention neck pain. The evidence is thus at least evenly balanced as to whether the Veteran's cervical spine disability is related to service. The July 2011 VA examination report reflects a diagnosis of cervical spine degenerative disc disease, and the Veteran has competently stated that he suffered from a fall during service, there is no indication in the evidence of record that the Veteran lacks credibility, and the service treatment records show a cervical strain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Therefore, the first two criteria for establishing service connection have been satisfied and the dispositive issue is whether there is a nexus between the two. While the July 2011, July 2019 examination reports, and April 2021 and May 2021 DBQs indicate that the Veteran's cervical spine disability was less likely than not (less than a 50 percent probability) related to an in-service injury, event or disease, the opinions obtained were based on a lack of in-service documentation of the Veteran's reported accident, and lack of treatment for neck pain since service which is an impermissible basis upon which to find that a cervical spine disability is not related to service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). As the physicians and NP who provided the previously discussed opinions failed to sufficiently consider the Veteran's statements regarding his in-service accident with subsequent neck pain since service, the examination reports and DBQs are inadequate and afforded no probative value as to the etiology of the Veteran's cervical spine disability. However, the Veteran has provided competent and credible evidence of neck pain since service, stating that he has had pain since 1988 after falling down stairs while stationed in Germany. Thus, there is competent and credible evidence regarding continuity of pain since service, and inadequate negative medical nexus opinions regarding the etiology of the cervical spine disability. Although the Board could remand the claim for another medical opinion, there is sufficient evidence to decide the claim, and a remand could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) aff'd sub nom. Gardner-Dickson v. McDonough, No. 2021-1462, 2021 U.S. App. LEXIS 33000 (Nov. 5, 2021) (per curiam Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'") (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The above reflects that the evidence is at least evenly balanced as to whether the Veteran's cervical spine disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for cervical spine disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.