Citation Nr: 21069887 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 12-27 719 DATE: November 22, 2021 ORDER Entitlement to service connection for a neck disability, to include as secondary to service-connected residuals of right acromioclavicular separation (hereinafter right shoulder disability), is denied. FINDING OF FACT The Veteran's neck disability did not have its onset in service or within one year of service discharge, nor is it related to any aspect of service, nor is it shown to be secondary to the Veteran's service-connected right shoulder disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a neck disability, to include as secondary to the service-connected right shoulder disability, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to August 1970. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2010 rating decision by a VA Regional Office (RO). In July 2015, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the Board hearing has been associated with the record. By way of procedural history, this matter has previously been before the Board in September 2015, October 2017, and May 2021. In the most recent Board decision, the Board issued a remand to ensure substantial compliance with the Board's prior remand directives and to obtain an addendum medical opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998); see Barr v. Nicholson, 21 Vet. App. 303 (2007). An addendum opinion has been obtained and therefore the Board finds there is substantial compliance with the Board's prior remand directives. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Entitlement to service connection for a neck disability, to include as secondary to service-connected right shoulder disability. The Veteran contends that he injured his neck during service in Vietnam, and that his current neck disability is secondary to/aggravated by his service-connected right shoulder disability. The service treatment records note in November 1968 and again in July 1969 that the Veteran complained of pain and neck stiffness. An addendum medical opinion was obtained regarding the Veteran's neck disability in July 2021. The examiner opined that the Veteran's neck disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In reaching their rationale, the examiner noted there was no chronic neck condition while in active service. Furthermore, the Veteran's separation examination was negative for a neck condition. In November 1968 and July 1969, the Veteran was seen in service for pain in the shoulder and in the neck, which was determined to be muscular. The examiner stated that this was likely a trapezius strain and not a true neck strain or sprain. The Veteran himself related the July 1969 event to a football game. Moreover, the examiner opined that his neck pain appears to have been two acute and self-limited events, as there are no further notations in the medical record. The Veteran suffered a separated shoulder issue around April 1971, being after service, and likely accounting for the Veteran's degenerative joint disease of the shoulder, despite the service connection. The examiner noted the Veteran is currently diagnosed with cervical strain or sprain. While no x-rays have been performed, the examiner opined it is at least as likely as not that the Veteran has degenerative cervical spine disease. Nevertheless, the examiner opined that it is less likely than not that the Veteran's currently diagnosed strain, or degenerative spine disease, if present, was incurred in or caused by events in active service. Separation examinations are notably thorough and include a history, physical, and usually a report of medical history. Consequently, the examiner found that it is highly unlikely a significant neck condition would have gone unnoticed or unreported. Furthermore, the examining medical officer would have been aware of the Veteran's combat wounds. After reviewing the record, the examiner found that the first evidence of a neck condition was in 2015 to 2016. Though the Veteran reports onset in service with chronicity since, the medical evidence does not support the claim. It is medically implausible than an individual could have endured a span of over 40 years with an ongoing condition and a nexus in service. Furthermore, the absence of records is significant with respect to neck conditions due to the anatomy function. Degenerative joint disease, if present, is considered a natural aging process. Greater than 50 percent of men over the age of 50 will have degenerative spine disease, the prevalence rising significantly per decade thereafter. The examiner found that degenerative joint disease is not caused by cervical strain and is established medical knowledge and practice, citing to the Wheeless' Textbook of Orthopaedics. Furthermore, it is more likely than not that the Veteran's condition, regardless of diagnosis, has its onset in or around 2015 or 2016. The examiner also noted that shoulder conditions do not cause neck conditions, nor would they aggravate a neck condition, as this too is established medical knowledge and practice. Generally speaking, a condition of one joint does not cause a condition in another joint or joint system, such as the cervical spine. This would be true of degenerative spine disease, if ultimately diagnosed. Furthermore, the examiner noted the same rationale applies to aggravation. In addition, the examiner found no evidence of aggravation of the Veteran's cervical strain (or degenerative spine disease) beyond its natural course due to any cause and the Veteran has not suggested what constitutes his claimed aggravation. In summary, the examiner found that it is less likely than not that the cervical strain is due to the Veteran's service-connected shoulder conditions. Furthermore, it is less likely than not that the Veteran's cervical conditions have been aggravated beyond the natural course due to any cause, including the Veteran's service-connected shoulder conditions. This also includes combat and shrapnel injuries, which did not involve the cervical spine. There is no cervical spine condition at separation and is clear from documentation. The Board finds the VA examiner's opinion to be highly probative. The July 2021 opinion was based on a thorough review of the record, including the service treatment records, and the opinions are consistent with other evidence of record, including prior examination findings. Moreover, the examiner provided adequate rationale for the opinions. Accordingly, the VA examiner's opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Significantly, there is no competent medical opinion of record linking the current neck disability to service or the service-connected right shoulder disability. The Board has considered the statements from the Veteran asserting that his neck disability had onset in service or is otherwise caused or aggravated by his service-connected right shoulder disability. The Veteran is certainly competent to report as to the observable symptoms he experiences and their history, but he cannot diagnose because of the medically complex nature of such diagnoses. Layno v. Brown, 6 Vet. App. 465 (1994); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The ultimate questions in this case are related to internal medical processes which extend beyond an immediately observable cause and effect relationship. Id. The Board finds that the specific, reasoned opinion of the VA examiner of greater probative weight than the more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which they relied to form the opinion, and the examiner provided rationale for the conclusions reached. As noted, there is no competent medical evidence that supports the claim. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claim. Regarding any contention by the Veteran that he has had this problem for, at this point, one-half-century, the Board has reviewed the facts of this case in great detail and finds that if such a contention is being raised by the Veteran, his recollection of events is faulty. The service and post-service medical records would provide evidence against such a claim. This is not simply the absence of medical evidence of this problem for decades, but points in this record in which the Veteran himself denies this problem exists. (Continued on the next page) In summary, there is no competent evidence of a neck disability in service or within one year following discharge from service. Thus, the provisions regarding continuity of symptomatology are not applicable. See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b). Moreover, the most probative and persuasive evidence is against a finding that his current neck disorder is related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a neck disability. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); See Gilbert, 1 Vet. App. at 54. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, Associate 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.