Citation Nr: 21070974 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 15-10 293A DATE: November 29, 2021 ORDER Entitlement to service connection for a cervical spine disorder is denied. FINDING OF FACT A preponderance of the probative evidence indicates that a cervical spine disorder is not related to service or to service-connected lower back disability. CONCLUSION OF LAW The criteria for service connection for a cervical spine disorder are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 until August 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified in a hearing before the Board. A transcript of the hearing is included in the electronic claims file and has been reviewed. In September 2018, the Board denied the claim on appeal. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to an August 2019 joint motion for remand (JMR) filed by the parties to this matter, the Court vacated the Board's decision and remanded the matter in September 2019. In response, in December 2019 and September 2020, the Board remanded the claim for additional medical inquiry. The case is again before the Board for appellate review. Service Connection The Veteran claims that he has a neck disorder as a result of an injury during service. He also claims that he developed a neck disorder as the result of service-connected lower back disability. Relevant legal authority Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disorders such as arthritis are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The evidence in this matter consists of lay statements from the Veteran, medical evidence from the Social Security Administration (SSA), service treatment records (STRs), private and VA treatment records, and VA compensation examination reports dated in May 2013, February 2020, January 2021, March 2021, and May 2021. This evidence shows that the Veteran has had a cervical spine disability during the appeal period. The VA reports dated in 2021 note degenerative changes in the cervical spine along with disc bulging and upper extremity radiculopathy. Further, the record indicates that the Veteran injured his spine area during service. Multiple STRs document injury to the lower back area during a lifting accident. The STRs show extended treatment for the injury. Based in part on the STRs, the RO, in a January 2021 rating decision, granted entitlement to service connection for a lower back disability. The Veteran asserts that he injured his neck during the in-service incident, that he has experienced adverse symptoms since the incident, and that the current neck problems relate directly to the injury. The probative evidence indicates, however, that the Veteran did not incur a cervical spine disorder during service and did not develop the disorder as the result of service-connected back disability. See 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. The STRs do not show complaints of, diagnosis of, or treatment for a neck or cervical spine disorder. There is no medical evidence of record indicating neck problems in the years following service. And the earliest medical evidence addressing neck problems found in private medical evidence detailing treatment for a back and neck injury during an accident on a sidewalk is dated in 2008, over 30 years after discharge from service. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). As such, the objective record does not document the existence of a neck or cervical spine disorder during service or for many years following service. Rather, the preponderance of the evidence indicates that, for over 30 years following service, the Veteran did not have characteristic manifestations sufficient to identify a chronic disease entity involving the neck. As such, the objective evidence indicates that the neck problem that manifested in the 2000s is not due to service. Moreover, the only evidence of record addressing the issue of medical nexus counters the Veteran's claim on both direct and secondary bases. With regard to direct service connection, VA opinions dated in February 2020 and March 2021 indicate that a medical link is unlikely. The February 2020 examiner noted the lack of medical evidence showing medical care for a cervical spine disorder prior to the 2000s. The examiner noted VA medical evidence dated in 2011 detailing degenerative changes and bulging in the cervical spine. The examiner found it unlikely that these cervical spine problems related to service three decades earlier. The March 2021 examiner also found it unlikely that service related to the neck disorder, citing the same evidence indicating no chronic disorder during service and indicating initial diagnosis of a chronic disorder three decades after service. This examiner added that the Veteran injured his back and neck in the accident in 2008 while falling on a collapsed sidewalk. This examiner also noted that degenerative changes in the cervical spine were common for people of the Veteran's age and body type. 38 C.F.R. § 3.303. With regard to secondary service connection, VA opinions dated in January and March 2021 counter the claim. The January 2021 report states that it was unlikely that a back disorder either caused or aggravates a neck problem. In support, the examiner cited the absence of medical evidence indicating that the neck was impacted by the in-service back injury, and cited the evidence indicating that the current neck disorder related to the 2008 accident, as evidence by the medical evidence of record showing treatment for neck pain after the fall. The examiner further added: The lumbar area affected and the cervical area affected are 2 areas of the spine with much thoracic/anatomical separation further supporting the case that the cervical spine condition is not related to the lumbar condition. There is not significant abnormal curvature or posture alteration caused by the lumbar spine that would result in a cervical spine condition The March 2021 VA examiner added, after finding it unlikely that back disability either caused or aggravates neck problems, "degenerative changes in Cervical and Lumbar spine frequently coexist in patients, but there is no cause-effect relationship between them." 38 C.F.R. § 3.310. Each of these VA reports is probative. Each is explained with citation to facts in the record, each is based on a review of the claims file and an examination and interview of the Veteran, and each is consistent with the evidence in the record. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Moreover, the Board finds the VA opinions more probative than the Veteran's lay theories regarding etiology. The Veteran is competent to describe observable symptomatology such as pain and limitation in the neck. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to determine issues such as diagnosis and etiology. Degeneration of the cervical spine is an internal pathology beyond his capacity for observation. It is a medical matter. Its etiology involves a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On this more complex question, the VA opinions are more credible than the Veteran's opinions. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). This is particularly the case given the absence of lay or medical evidence in the years following service indicating neck troubles. As such, the Veteran's lay assertions are outweighed by the VA opinions on the question of medical nexus here. Parenthetically, one January 2021 VA report addresses the issue of aggravation under the wrong evidentiary standard. The report addresses the question not under 38 C.F.R. § 3.310, but under 38 U.S.C. § 1153, which addresses the question of whether a pre-service disorder was aggravated by service. No evidence indicates a pre-service neck disorder. This opinion has not been relied on here. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that once VA undertakes an examination, an adequate one must be produced). In sum, a preponderance of the evidence indicates that it is unlikely that a neck disorder relates either to service, to include the back injury during service, or to back disability following service. As the preponderance of the evidence is against the claim to service connection, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.