Citation Nr: 21071812 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-47 534 DATE: December 1, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. FINDINGS OF FACT 1. A current cervical spine disability did not have its onset in service, has not been chronic or continuous since service separation, did not manifest to a compensable degree, and is not due to or the result of an in-service disease, injury, or other incident of service. 2. A current cervical spine disability is not due to or aggravated by a service-connected disability or disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1979 to March 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal has a complex and lengthy procedural history, with multiple Board remands, most recently in July 2021. Also remanded by the Board in July 2021 were the issues of service connection for obstructive sleep apnea and for headaches. In a subsequent September 2021 rating decision, the Veteran was granted service connection for these disabilities. Thus, these issues are no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). 1. Entitlement to service connection for a cervical spine disability The Veteran seeks service connection for a cervical spine disability. He asserts he injured his neck in service as the result of a motorcycle accident, and service connection is therefore warranted. He also asserts, in the alternative, that his other service-connected disabilities cause or aggravate a cervical spine disability, and service connection is therefore warranted on a secondary basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Finally, service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Considering first the service treatment records, these are negative for a diagnosis of or treatment for a cervical spine disability. Moreover, an August 2001 VA general medical examination, conducted while the Veteran was still on active duty, was negative for any complaints or diagnoses of a disability of the neck or cervical spine. The Veteran has asserted he was involved in a motor vehicle accident while stationed in Germany between 1986-89. He has reported he was ejected from a motorcycle, resulting in injuries to his face and neck. He also submitted a December 2016 statement from a fellow soldier confirming such an accident, with resulting injuries to his chin and lip. Accepting the Veteran's account, the Board must nevertheless conclude such an incident did not result in a chronic or continuous disability of the cervical spine, as the remainder of the records during and immediately following service are negative for complaints of chronic symptoms of the neck or cervical spine. Post-service, the Veteran first sought VA treatment for neck pain in 2009. A subsequent MRI study found degenerative changes at all levels of the cervical spine. Thus, the first post-service complaints or diagnoses of a cervical spine disability dates to over five years after service separation. While the Veteran received VA treatment for a variety of disabilities immediately following service, and filed for VA compensation for the same, he did not seek treatment or compensation for a neck or cervical spine until 2009, when he first reported neck pain, or 2015, when he filed his initial service connection claim for a cervical spine disability. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see, e.g., Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the Board may consider a lack of notation of a medical condition or symptoms where such notation would normally be expected). If the Veteran had been experiencing neck pain and related symptoms since his separation, as he currently alleges, it would be expected that he would have described such symptomatology at that time, or that similar findings would have been noted by the treating clinician. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). Specifically, a November 2003 VA treatment record documents the Veteran's complaints while establishing heath care at a new clinic. This report documents the Veteran's complaints of constant back pain for the past 10 years and right shoulder pain for the past 15 years, but does not mention any neck complaints. It is reasonable to assume that he would have complained of ongoing neck pain if such symptoms were present, especially when complaining of other musculoskeletal issues such as the back and shoulder. Thus, based on this evidence, the Board must conclude that although the Veteran was involved in a motor vehicle accident while on active duty, a current disability of the neck or cervical spine did not have its onset in service, has not been chronic or continuous since service separation, and did not manifest to a compensable degree within a year of service separation. The Board also finds the preponderance of the evidence is against a finding that a current cervical spine disability is due to or caused by an in-service disease, injury, or other incident of service. During the course of this appeal, the Veteran has been afforded several VA medical examinations. A November 2020 VA examination confirmed a current diagnosis of degenerative arthritis of the cervical spine with spinal stenosis and neural foraminal narrowing, and noted the Veteran's contentions regarding an in-service motor vehicle accident resulting in a neck injury. After examination of the Veteran and review of the claims file, the examiner, a nurse-practitioner, opined that it was less likely than not any current cervical spine disability was related to an in-service disease or injury, as the service treatment records were negative for any complaints or treatment for a cervical spine injury in service, and for several years afterward. The examiner also found the Veteran's current cervical spine disabilities were less likely than not caused or aggravated by a service-connected right shoulder disability, as rotator cuff disabilities of the shoulder are not a known risk factor for cervical spine disabilities. Rather, the most common risk factors for developing degenerative arthritis of the cervical spine were, according to the examiner, aging, family history, smoking, obesity, and a sedentary lifestyle. Another November 2020 medical examination and opinion, provided by a VA physician, was also obtained. The claims file was reviewed in conjunction with the examination, and a current diagnosis of degenerative disc disease of cervical spine was confirmed. After examining the Veteran and reviewing the claims file, the VA physician opined it was less likely than not any current cervical spine disability had its onset in service or was otherwise related to service. The examiner noted the lack of evidence of treatment for a cervical spine disability in service. The examiner also found no evidence of a nexus between a service-connected rotator cuff injury of the right shoulder and the current degenerative disc disease of the cervical spine. Next, the VA obtained a March 2021 medical opinion. The Veteran was not examined in person but his claims file was reviewed. After review of the record, the examiner opined it was less likely than not that any service-connected disability either caused or aggravated the Veteran's current cervical spine disability. Most recently, a June 2021 VA medical examination and August 2021 medical opinion were provided the Veteran. The claims file was reviewed by both examiners, and current diagnoses of cervical stenosis and arthritis of the cervical spine were noted. After examination of the service treatment records and post-service record, the August 2021 examiner concluded it was less likely than not any current cervical spine disability had its onset in service, or was otherwise related to an in-service disease, injury, or other incident of service. The examiner noted the absence of in-service diagnoses of or treatment for a disease or injury of the neck or cervical spine within the service treatment records. While the Veteran was noted to be competent to report observable symptoms as neck pain, he did not seek treatment for such symptoms at any time during service, according to the evidence of record. Regarding the question of secondary service connection, the examiner noted the Veteran was service-connected for multiple musculoskeletal disabilities, as well as sleep apnea, anxiety disorder, tinnitus, rhinitis, hearing loss, erectile dysfunction, migraine headaches, eczema, and pseudofolliculitis barbae; however, the examiner also noted there was insufficient support in the peer-reviewed medical literature to support that one joint condition can serve as a nexus for another. As such, the examiner determined it was less likely than not the Veteran's current cervical spine disabilities were due to or aggravated by a service-connected disability or disabilities. Thus, based on this evidence, rendered by competent medical experts after examination of the Veteran and/or review of the entire medical history, the Board finds the preponderance of the evidence is against the award of service connection for a cervical spine disability on any basis. The various VA examiners noted the Veteran's contentions of pain of the neck and upper back in service, as well as the various service treatment records and post-service treatment records and determined, after careful consideration, that no current cervical spine disability was incurred in or otherwise related to an in-service disease, injury, or other incident of service. Additionally, these same examiners found it less likely than not a current cervical spine disability was either caused or aggravated by a service-connected disability. It was noted that there is no evidence in medical literature that the musculoskeletal conditions for which the Veteran has been awarded service connection have any deleterious effect on the cervical spine. While the Veteran's representative has asserted these opinions are inadequate, the Board notes they were based on both personal examination of the Veteran and/or review of the entire record. The examiners cited to specific findings within the record and considered relevant medical literature. The reports inform the Board on a medical question and facilitate the Board's consideration and weighing of the report against any contrary reports. Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). The Board further notes that no competent and contrary evidence rendered by a relevant expert has been offered by the Veteran or his representative. The Veteran has himself alleged that his current neck pain and cervical spine disability are due to an in-service injury, and/or his service-connected disabilities. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, orthopedic disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for a cervical spine disability on any basis. A current cervical spine disability did not have its onset in service, has not been chronic or continuous since service separation, did not manifest to a compensable degree, and is not due to or the result of an in-service disease, injury, or other incident of service. A current cervical spine disability is also not due to or aggravated by a service-connected disability or disabilities. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.