Citation Nr: 21073331 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 07-15 570 DATE: December 8, 2021 ORDER Entitlement to service connection for cervical spine pain, as proximately due to a fall resulting from his service-connected left knee disability is granted. FINDING OF FACT The probative evidence of record is at least in equipoise that the Veteran's cervical spine pain is proximately due to a fall resulting from his service-connected left knee disability. CONCLUSION OF LAW The criteria for service connection for cervical spine pain as secondary to service-connected left knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from July 1966 to March 1968. This matter is before the Board from a June 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the Veteran's petition to reopen a previously denied claim for entitlement to service connection for a cervical spine disability was denied. In December 2011, the Veteran's petition to reopen the claim was granted and remanded for additional development. In December 2017, December 2020, and June 2021, the Board remanded the Veteran's cervical spine claim to obtain adequate VA examinations. Finding there has been substantial compliance with the Board's remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review The Veteran appeared before the undersigned Veterans' Law Judge at a September 2011 hearing. Service connection for degenerative arthritis of the cervical spine. The Veteran has claimed entitlement to service connection for a neck disability. He contends that he hurt his neck when he caught himself falling after his service-connected knee gave way (10/25/2005 VA 21-4138 Statement In Support of Claim; 10/25/2005 Correspondence; 02/13/2006 Medical Treatment Record - Government Facility, pg. 14; 10/10/2020 Third Party Correspondence, pg. 5; 09/26/2011 Hearing Testimony, pg. 24). The Veteran's service treatment records do not suggest, nor does the Veteran contend, in-service neck injury or onset of a neck disability during service. His neck was clinically evaluated as normal during his February 1968 separation examination (07/30/1968 STR - Medical, pg. 45). As service connection on a direct basis is not contended or suggested by the record, the Board's review will focus on service-connection on a secondary basis. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In addition, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a chronic disease manifests to a degree of 10 percent or more within 1 year from the date of separation from service, that disease is presumptively service connected. 38 C.F.R. §§ 3.303 (b), 3.307(a)(3). The Veteran's arthritis is contemplated as chronic disease under 38 C.F.R. § 3.309(a). The Veteran's most recent VA examination confirmed diagnoses of degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome. The August 2021 VA examination also confirmed the Veteran's complaint of neck pain and noted his neck pain causes functional loss (08/05/2021 C&P Exam, pgs. 2 and 7). The term "disability" for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). The Board finds in addition to arthritis and degenerative disc disease, the Veteran's neck pain is a functional impairment meeting the definition of a disability for VA purposes. The Veteran is service connected for lumbar spine, bilateral knee, bilateral hip, and right shoulder disabilities (06/08/2021 Rating Decision - Codesheet). A review of the post service treatment records reveals in February 2005, the Veteran's left knee gave out and the Veteran thwarted a fall. The event resulted in neck pain and stiffness (02/13/2006 Medical Treatment Record - Government Facility, pg. 14). The Veteran has been afforded a number of VA examinations addressing his neck. In January 2007, a VA examiner opined that the Veteran's neck disorder is not related to his service-connected left knee disability; however, in December 2011, the Board found the rationale to be inadequate and directed the AOJ to obtain a new opinion. In March 2015, a VA examiner opined that the Veteran's current neck disorder is less likely as not related to his knee disability. In September 2016, the March 2015 VA examiner opined that the Veteran's cervical spine degenerative joint disease is less likely as not aggravated beyond its natural progression by his service-connected left knee disability. Neither the March 2015 nor September 2016 opinions contained an adequate, clearly explained rationale. An additional examination was obtained. The March 2020 examiner opined the Veteran's cervical spine condition is less likely than not (less than 50 percent probability) incurred in or caused or permanently aggravated beyond clinical expectation by military service or proximately due to or the result of or permanently aggravated beyond clinical expectation by his service-connected left knee or hip condition. In so finding, the examiner relied on the absence of medical treatment records in formulating the opinion and did not conclusively demonstrate a link between the Veteran's cervical spine arthritis and his service-connected disabilities. In December 2020, the Board found that the March 2020 examination was inadequate because the examiner applied the incorrect standard of proof. Again, an additional examination was sought. An addendum opinion was obtained in February 2021 from the March 2020 VA examiner. The examiner essentially reiterated the March 2020 opinion, and the Board found the addendum opinion also inadequate. The Veteran was afforded a new examination of his cervical spine in August 2021. After an in-person examination, the examiner opined it is less likely as not that the Veteran's degenerative arthritis of the cervical spine was caused by his service-connected disabilities, to include falling from his left knee giving way and/or degenerative arthritis of the lumbar spine. The examiner also opined it is less likely than not that arthritis of the cervical spine manifested to a compensable degree within one year of March 6, 1968. Likewise, the examiner opined it is less likely as not that the Veteran's degenerative arthritis of the cervical spine manifested during or is otherwise related to his period of active duty. The examiner explained that cervical arthritis is a common joint problem usually associated with older adults, most commonly due to daily wear and tear. Onset in older adults over 50 years of age is common. With regard to neck pain, however, the examiner confirmed that documentation of cervical pain was first noted in 2005 following near fall on the right arm which resulted in shoulder and neck strain. The examiner explained there is no mention of cervical strain, arthritis or injury mentioned until 2005 (08/05/2021 C&P Exam). In a September 2021 addendum opinion, the examiner clarified that no incidents during service resulted in a diagnosis of degenerative arthritis of the cervical spine, explaining the pathology is due to age-related degeneration. Additionally, there is no evidence to indicated that the service-connected left knee injury or lumbar spine condition caused the neck diagnoses to worsen beyond natural progression. With regard to pain however, the examiner noted the Veteran's subjective report of pain would be the baseline and his prior diagnoses of arthritis did not include pain prior to the fall. The examiner concluded it is at least as likely as not that the Veteran's degenerative arthritis of the cervical spine has been aggravated service-connected disabilities. (09/09/2021 C&P Exam). In weighing the medical evidence, the Board finds although couched in terms of aggravation of arthritis, the September 2021 addendum makes it clear that the Veteran did not have neck pain before the fall, and did have pain after. The Veteran has stated his neck pain began as a result of catching himself when he fell. His statements regarding cervical pain since the fall are competent and there is no indication that the Veteran's statements lack credibility. Of the VA examinations and associated opinions of record, the Board finds the August 2021 and September 2021 addendum to be the most probative of record. As outlined previously, prior opinions were found to be inadequate and therefore cannot be assigned significant probative weight. The Board finds the probative medical evidence of record weighs against a finding that the Veteran's degenerative disc disease or arthritis began during service, are related to in-service disease or injury, or are proximately caused or aggravated by any in-service disease or injury. Additionally, the medical evidence does not suggest, nor has the Veteran contended, that his arthritis manifest to a compensable degree within one year of his service. With regard to neck pain however, the medical evidence is at least evenly balanced as to whether it began after the fall that occurred due to his service-connected knee giving way. The Board finds the medical evidence from 2005, the competent and credible lay statements of the Veteran, taken in conjunction with the September 2021 addendum opinion suggesting that the Veteran did not have neck pain prior to the fall, but had neck pain after. Thus, the award is not based on aggravation and thus there is no need to establish a baseline level of disability. (Continued on the next page) In light of the foregoing, the Board finds the weight of the probative evidence of record is at least in equipoise as to whether the Veteran's neck pain is the result of his service-connected left knee disability. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds service connection for cervical spine pain is warranted and the Veteran's claim is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.