Citation Nr: 21075302 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 15-09 286 DATE: December 20, 2021 ORDER The claim for service connection for a cervical spine disability, to include as secondary to service-connected lumbosacral strain, is denied. FINDING OF FACT A chronic cervical spine disability, currently diagnosed as degenerative cervical spondylosis, was not present in service or until years thereafter and is not etiologically related to any incident of active service and is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW A cervical spine disability was not incurred in or aggravated by active service and was not proximately due to or the result of a service-connected disability. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to February 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in November 2019 and June 2021 when it was remanded for additional development. It has now returned to the Board for further appellate action. 1. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbosacral strain. The Veteran contends that service connection is warranted for a cervical spine disability as it was incurred due to injuries during active duty service. In the alternative, the Veteran contends that service connection is warranted for his cervical spine disability as secondary to a service-connected lumbosacral strain, to include as due to obesity caused by the low back disability. The Board finds that while a current disability and in-service injury are present, the preponderance of the evidence weighs against a conclusion that the Veteran's cervical spine disability began during service or is otherwise related to an in-service injury or service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Board will first address the Veteran's contentions regarding direct service connection before turning to whether service connection is appropriate on a secondary basis. 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of an established service-connected disability. 38 C.F.R. § 3.310. Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. A current disability is established. The Veteran was diagnosed with degenerative cervical spondylosis upon VA examinations in April 2011 and July 2019 based on X-ray testing and physical examination. A current disability is therefore present. As to the second element of service connection, in service injury, service records document the Veteran's involvement in a motor vehicle accident in August 1966. He was hospitalized twice for a lumbar compression fracture and lumbosacral strain but released back to full duty on September 20, 1966, with no symptoms. There is no evidence of complaints or treatment related to the cervical spine during service, but the Veteran has reported that he experienced some neck pain following the accident. If the Veteran had been experiencing cervical spine pain, it is reasonable to expect that he would have described such symptomatology at that time. It is also reasonable to expect that the treating clinician would have documented any issues with the cervical spine when the Veteran's low back was being examined. In assessing the credibility of evidence, the Board may consider any number of factors, to include conflicting statements or evidence and the potential bias of the declarant. The lack of contemporaneous evidence is also relevant, but it may not generally serve as the sole basis for discrediting lay statements or testimony. But the Board may draw inferences against a claimant from a lack of documentation if the Board lays a proper foundation "to demonstrate that such silence has a tendency to prove or disprove a relevant fact." In this case, the Board finds that a proper foundation exists, as the Veteran's complaints of cervical spine pain would ordinarily be of record. It is reasonable to conclude that the Veteran would have reported problems with his cervical spine at the time he received treatment for the low back. It is also reasonable to conclude that the treating clinician would have noted an issue with the cervical spine when treating the Veteran's low back. Based on the facts of this case, the Board finds that the absence of treatment tends to prove that an in-service injury or disease did not exist. Regarding the third element of service connection, a nexus between the Veteran's cervical spine disability and active duty, the Board notes that service and post-service records do not indicate such a link. As noted above, service records, while documenting the Veteran's August 1966 motor vehicle accident, are negative for findings of a cervical spine disability. The Veteran did not complain of any neck pain associated with the accident and his treatment records are negative for any medical evidence of a cervical spine injury. There is no reference to the cervical spine or neck in the service records, no radiographs, and no indication that he incurred a chronic cervical spine disability. The Veteran's spine was also normal at the January 1970 separation examination. Thus, service records do not document the presence of a chronic cervical spine disability during service and do not support the claim. There is also no post-service evidence of a cervical spine disability until September 2010, more than 40 years after active duty, when the Veteran's claim for service connection for a neck condition was received. A chronic disability was not identified until the April 2011 VA examination when X-rays demonstrated the presence of degenerative spondylosis. The absence of any clinical evidence of the cervical spine condition for more than 40 years after service is one factor weighing against service connection in this case, particularly as the Veteran's spine was examined in connection with earlier claims for compensation in 1970 and 1975 with no evidence of cervical spine abnormalities. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Similarly, based on the lack of evidence of arthritis for decades after service, the Board cannot conclude that arthritis was present to a compensable degree within one year from the date of separation. Thus, service connection on a presumptive basis for arthritis as a chronic disease is not warranted. 38 C.F.R. §§ 3.307, 3.309. The weight of the other competent medical evidence is also against the claim for service connection on a direct basis. No medical professional has provided a medical opinion in support of the claim. In fact, the only medical opinion of record addressing direct service connection weighs against service connection. After physically examining the Veteran and reviewing the claims file, the July 2019 VA examiner concluded that the Veteran's cervical spine disability was not etiologically related to his in-service motor vehicle accident. The examiner noted the contents of the service records, which were negative for complaints of neck pain or neck injury and showed a normal spine at the 1970 separation examination. The examiner also noted that there was no evidence of a disability until more than 40 years after service, and degenerative arthritis is common in people of the Veteran's age. The examiner therefore concluded that the Veteran's cervical disability was not due to service. This opinion was based on the contents of the service records and the nature of the Veteran's specific disability. The Board finds that this medical opinion is supported by a full and well-reasoned rationale and therefore weighs significantly against the claim for service connection. Service connection is also possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a chronic disability under 38 C.F.R. § 3.309(a). The Veteran reported during the July 2019 VA examination that he has experienced neck pain "since [the in-service] accident occurred." However, the Board finds that this continuity of symptoms is of reduced credibility as it is inconsistent with the other evidence of record. As discussed above, service records are completely negative for complaints or treatment related to the Veteran's neck. There is also no post-service evidence of a cervical spine disability until several decades after the Veteran's separation from active service. The Veteran has also never reported a history of consistent neck pain since service to any treating or examining healthcare provider, to include the earlier April 2011 VA examiner. At that time, the Veteran's history of neck pain was vague, with reports that he had experienced neck pain "off and on" around the time of his motor vehicle accident during service. The Board also finds that the objective evidence, including the contents of the various medical records, are more probative than the Veteran's statements provided within the context of a claim for compensation almost 50 years after the events in question. The Board therefore finds that the reports of a continuity of symptoms since service are of reduced credibility and are outweighed by the competent evidence weighing against direct service connection. The Board has also considered the Veteran's contentions regarding direct service connection, but notes that as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to report observable symptoms, such as the onset of neck pain, but finds that his opinion as to the cause of these symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Additionally, as noted above, the Board has found that the Veteran's reports of neck pain dating from active service lack credibility. Turning to the Veteran's contentions regarding secondary service connection, the competent evidence of record also weighs against a finding that the Veteran's cervical spine disability was caused or aggravated by his service-connected lumbosacral strain. The Veteran has not provided any evidence in support of secondary service connection, and the record contains multiple medical opinions weighing against the claim. VA examiners in April 2011 and July 2019 provided opinions against service connection on a secondary basis, with the July 2019 examiner finding that the Veteran's disability was caused by the natural aging process. An August 2021 VA examiner also opined that the Veteran's low back disability did not aggravate his cervical spine condition, noting that the neck is not under biomechanical stress from the lumbar spine. The Board finds that these medical opinions provide competent evidence weighing against secondary service connection. The Veteran also contends that service connection is warranted for a cervical spine disability on a secondary basis due to obesity. The Board acknowledges that obesity is not a disability for purposes of VA benefits, and it cannot be service connected on a direct basis. Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1 2017 (Jan. 6, 2017). A grant is warranted (1) if the service-connected disability caused the Veteran to become obese; (2) if obesity was a substantial factor in causing a subsequent disability; and (3) if the subsequent disability would not have occurred but for obesity. See also Walsh v. Wilkie, 32 Vet. App. 300, 307 (2020) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis). The weight of the evidence is against an award of service connection on a secondary basis with obesity as an intermediate step. An October 2021 VA medical opinion specifically addressed this question, but the examiner determined that the Veteran's obesity was not a substantial factor in the causation or aggravation of the claimed cervical spine disability. The examiner noted that while the Veteran is obese, the neck is not a weight-bearing joint and is not subject to any stress effect associated with the Veteran's weight. In other words, the neck is not impacted by elevated weight and any neck disability is not etiologically related to the Veteran's weight. The record does not contain any competent evidence linking the Veteran's cervical spine disability to obesity or a service-connected disability and, as noted above, the Veteran is not competent to provide an opinion regarding the etiology of the claimed condition. See Barr, supra. The Board therefore finds that service connection on a secondary basis is not warranted. (Continued on next page) The competent evidence of record is therefore against a nexus between the Veteran's cervical spine disability and active duty service. Furthermore, the evidence is against service connection for the claimed disability on a secondary basis, to include as due to obesity. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals M. Riley, Attorney for the Board Department of Veterans Affairs 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.