Citation Nr: 21075360 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 15-18 452 DATE: December 20, 2021 ORDER Entitlement to service connection for a neck disability, to include as secondary to a service-connected back disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT The Veteran's current neck disability is not shown to be causally or etiologically related to her active military service and is not shown to have manifested within one year from the date of her separation from the military. CONCLUSION OF LAW The criteria for entitlement to service connection for a neck disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty from July 1982 to December 1982 and from December 1986 to May 1992. This matter has a long procedural history and was previously remanded by the Board of Veteran's Appeals (Board) in September 2019, October 2020 and May 2021 for additional evidentiary development and adequate VA examinations. The Board finds there has been substantial compliance with its May 2021 remand directives. VA examinations, which were obtained in August 2021. The Board also instructed the Agency of Original Jurisdiction (AOJ) to ask the Veteran to identify outstanding private treatment records. The post-remand development revealed that the outstanding private treatment records were unobtainable. Stegall v. West, 11 Vet. App. 268 (1998). The matter is again before the Board for further appellate review. Entitlement to service connection for a neck disability The Veteran contends that her neck disability is related to a 1991 in-service fall incident. The Veteran has alternatively claimed that her neck disability is secondary to her service-connected back disability. Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the regulations for establishing direct service connection cited above, entitlement to service connection on a secondary basis may be granted when there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence, generally medical, establishing a nexus, or link, between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection can also be granted for chronic disabilities, if the evidence establishes that it manifested to a compensable degree within one year after the Veteran was separated from service. 38 C.F.R. § 3.307, §3.309. Service connection for chronic disabilities can be established through a showing of continuity of symptomatology since service, as an alternative to the nexus requirement. 38 C.F.R. § 3.303 (b). This option is limited to chronic disabilities listed in 38 C.F.R. § 3.309 (a). As to the first service connection element (current disability), the evidence reveals that the Veteran has been diagnosed with cervical stenosis (See July 2011 Medical Treatment Record - Non-Government Facility; see also February 2016 cervical spine MRI. The Veteran also has a diagnosis of cervical spondylosis (see February 2020 and August 2021 C&P Examinations). Thus, the first element of service connection is satisfied. The second element of service connection (in-service incurrence) is also satisfied. Twice in 1987, the Veteran complained and was treated for neck pain and stiffness. She was diagnosed with muscle spasm. In September 1991, after a fall, the Veteran complained and was treated for hip, back and neck pain. See Service Treatment Records (STRs). Therefore, the only element in dispute is whether there is a causal relationship between the Veteran's current neck disability and the Veteran's in-service neck disease. The Veteran's private treatment records show a medical receipt indicating that she received treatment for her cervical spine in July 1998. Throughout most of the Veteran's private treatment records dated from July 2011, the Veteran maintained that her neck symptoms may have stemmed from the 1991 in-service fall incident and that her neck pain have progressively worsened over the years. See Medical Treatment Record - Non-Government Facility. The Veteran was afforded a VA examination in February 2020. The Veteran indicated that she would get a stiff neck after in-service physical training (PT) and that, occasionally she would wake up with a stiff neck. She noted that the symptoms would last for a few days, and she would not be able to participate in some PT exercises. The Veteran also stated that since her fall in 1991, she has had intermittent aching neck pain which have gradually worsen over time. The examiner opined that the claimed cervical spine condition is less likely than not related to military service. The examiner's rationale was that the Veteran's STRs do not establish that she was treated for a cervical spine condition while on active duty and that the Veteran also relates a motor vehicle accident in 2017 which she states exacerbated her neck pain. See February 2020 C&P Examination. Pursuant to the Board's May 2020 remand, the Veteran was afforded another VA examination in August 2021. Regarding direct service connection, the examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that ongoing chronicity of neck pain or a neck condition since service has not been established. Rather, the Veteran appears to have multiple episodes of distinct, acute neck injuries with recovery, followed by chronic neck pain beginning around 2010. The examiner further explained that medical evidence supports a diagnosis of neck strain in service in 1991 after a fall, from which she fully recovered, followed by other etiologies for the Veteran's neck pain including breast hypertrophy requiring surgery to alleviate back and neck pain and injuries to her neck over time, most notably the motor vehicle accident (MVA) in 2004. Regarding secondary service connection, the examiner opined that the condition claimed is less likely than not (less than 50 percent probability) caused or aggravated by the Veteran's service connected back disability. Providing similar rationales for both causation and aggravation, the examiner reasoned that cervical spondylosis is a degenerative condition of the spine, most commonly attributed to the aging process and can be accelerated by certain injuries; that degenerative changes in the low back do not cause degenerative changes in the neck; that in the absence of grossly impaired posture or gait due to low back issues, or significant spine scoliosis, there is no pathophysiologic mechanism by which a low back condition would cause or aggravate degenerative changes in the neck. See August 2021 C&P Examination. In a lay statement from the Veteran's daughter L. A. C, she stated that since her mother's fall in 1991, the Veteran has always complained of neck pain and that she has accompanied the Veteran to several chiropractic appointments relating neck symptoms. See April 2021 Buddy/Lay Statement. During the August 2018 Board hearing, the Veteran testified that in 1987, she sought treatments for neck stiffness and pain radiating into the shoulders. She also stated that she experienced neck symptoms after her in-service fall in 1991, and that post service, her neck pain had gradually increased over the years. See August 2018 Hearing Transcript. Having considered all of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. The Veteran filed for service connection in September 2011, reporting that her disability began during service. The Veteran did not seek service connection for a neck disability until 2011, despite numerous previously filed claims. Further, the Veteran was discharged from service in May 1992. In the appropriate circumstance, VA may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). If the Veteran had been experiencing chronic or recurring pain in or other relevant symptoms in her neck since service, it stands to reason that she would have reported it and that there would be clinical records documenting her complaints and/or she would have sooner filed for service connection for a neck disability such as when filing her claim for service connection for a back disability in June 1992. That said, merely because a Veteran file a claim for a specific disability does not necessarily mean that she should also file for any other disability incurred in service or secondary to a service-connected disability. The Board finds that the Veteran is competent to state that she had a neck injury in service which had persisted to date. However, to the extent that the Veteran is contending a neck injury in service and continuous neck problems since service, her lay statements alone are not sufficient to establish the required nexus in this case. The Board finds the August 2021 VA examiner's findings and opinion to be highly probative because it is based on the medical expert's personal examination of the patient, her knowledge and skill in analyzing the data, and her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the August 2021 VA opinion was provided by an individual who possesses the necessary education, training, and expertise to provide the requested opinion. The August 2021 VA examiner concluded it was less likely than not that a neck disability was incurred in or caused by an in-service event, as the records are indicative of superseding events where the Veteran sustained her current neck disability i.e., a history of breast hypertrophy requiring surgery to alleviate back and neck pain and most notably, a 2004 MVA where the Veteran sustained neck injury. Regarding whether the neck disability is related to the service-connected back disability, the examiner reasoned that the Veteran's neck disability is a degenerative condition of the spine, most commonly attributed to the aging process and can be accelerated by certain injuries but not by degenerative changes in the back. The August 2021 opinion is shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation based on sound medical principles. The examiner considered the Veteran's lay statements but ultimately concluded that there was no etiological relationship between the Veteran's current neck disability and her in-service fall incident or service-connected back disability. For these reasons, the Board finds that the August 2021 VA examiner's opinion is dispositive of the service connection nexus question presented in this case. In so finding, the Board notes that the Veteran has also expressed her own view that her neck disability is related to her service. Although lay persons are competent to provide opinions on some medical issues, such as feeling neck pain following a fall in service, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, i.e., whether the disability affecting the Veteran's neck is etiologically related to service, such question falls outside the realm of common knowledge of a lay person as it involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (providing that although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As such, the Board assigns little probative value to the Veteran's assertions that her currently diagnosed neck disability is in any way related to her military service. In sum, the most probative evidence of record is the August 2021 VA examiner's opinion finding no link between the Veteran's currently diagnosed degenerative changes of the cervical spine and her military service. The Board also notes that there is no competent evidence of record that the neck disability, to include degenerative changes, manifested to a compensable degree within one year of the Veteran's discharge from service. The August 2021 VA examiner considered the Veteran's report of neck problems through the years and concluded that they were distinct acute episodes rather than a chronic problem. As such, service connection on a presumptive basis is not warranted. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim of entitlement to service connection for a neck disability is denied. REASONS FOR REMAND Entitlement to service connection for a right knee disability is remanded. The Veteran contends that her right knee disability, is directly related to service, to include as caused by or aggravated by her service-connected back disability. Following the Board's May 2020 remand, the Veteran was afforded a VA examination in August 2021. The examiner provided a negative nexus opinion on the basis that the Veteran's medical records were silent for any reports of being seen for right knee complaints during active duty service. Regarding secondary service connection (causation), the examiner opined that there is no pathophysiologic mechanism by which degenerative disc disease in the low back would directly cause degenerative joint disease, or osteoarthritis in the knees. In the case where a back condition was causing a significant gait abnormality for a prolonged period of time, this might contribute to a knee condition, however, the Veteran does not have a gait abnormality. Therefore, the Veteran's right knee disability, diagnosed as osteoarthritis of the right knee is less likely than not probability) proximately due to or the result of back condition to include degenerative disc disease and lumbar disk displacement. The examiner also found that the Veteran's right knee condition was not aggravated beyond its natural progress by her service-connected back disability. To support this conclusion, the examiner provided the same rationale as for the issue of causation. However, the Court of Appeals for Veterans Claims (Court) has held that causation and aggravation are independent concepts and should have separate findings and rationales. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). It appears that the examiner applied the wrong standard in addressing the aggravation prong of secondary service connection. As such, a remand is warranted to provide the Veteran another VA examination on whether her right knee disability is associated with her service-connected back disability. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA and private treatment records pertinent to the right knee disability. 2. Obtain an addendum opinion from an appropriate clinician on whether there is a nexus between the Veteran's right knee disability and her service-connected back disability. The need for an in-person examination is left to the examiner's discretion. The examiner is asked to opine on whether the Veteran's right knee disability is at least as likely as not: (1) caused by; or (2) aggravated by her service-connected back disability. The examiner is advised that causation and aggravation are independent concepts. As such, the examiner must provide separate opinions and rationales for proximate causation and aggravation for the right knee disability. The examiner is also advised that aggravation under 38 C.F.R. §3.310 (b) does not require that there be "permanent" worsening of the nonservice-connected disability. A complete rationale for the opinions must be provided. A complete rationale is one that contains clear conclusions with supporting data and a reasoned medical explanation connecting the two. 3. Thereafter, readjudicate the issue on appeal. If the claim remains denied, furnish the Veteran and her representative a Supplemental Statement of the Case (SSOC) and the requisite time to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.