Citation Nr: 21075907 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-54 116 DATE: December 21, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. REMANDED Entitlement to service connection for a psychiatric disability, claimed as depression, is remanded. FINDING OF FACT A current cervical spine disability did not have its onset in service, has not been chronic or continuous since service, did not manifest to a compensable degree within a year of service, and is not due to or caused by an in-service disease, injury, or other incident of service. 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1958 to December 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in April 2019. These issues were previously remanded by the Board in July 2019. Also perfected for appeal was the issue of service connection for a closed head injury, with memory loss. In an October 2021 rating decision, the Veteran was granted service connection for a traumatic brain injury with migraine headaches. Thus, this issue is 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). Service Connection 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. Entitlement to service connection for a cervical spine disability The Veteran seeks service connection for a cervical spine disability. He asserts that during service, a vehicle hatch fell on his head, causing a neck injury, and service connection is therefore warranted. Considering first the service treatment records, the Veteran was treated in July 1960 for a laceration below his chin. The wound was treated and he was provided a tetanus shot. In November 1960, he sought treatment for a head injury sustained when he fell onto a radiator heater. The laceration, on the left side of his head, was cleaned and sutured. In September 1961, the Veteran was seen following a fall off a wall. He stated he landed on his face and was briefly unconscious. Lacerations to his chin and lower lip were observed. No other injuries were noted. X-rays of the skull were negative for fracture. His injuries were cleaned and treated. A December 1961 service separation examination was negative for any noted abnormality of the cervical spine. In a July 2011 administrative decision, the VA RO determined the Veteran's November 1960 and September 1961 injuries were the result of willful misconduct and thus not incurred in the line of duty. The RO noted both incidents were the result of excessive alcohol use, and the Veteran was subject to disciplinary punishment following the November 1960 incident due to disrespectful conduct toward a superior officer. The Veteran did not appeal this determination. Post-service, the Veteran was not diagnosed with or treated for a neck or cervical spine disability for many years. On VA examination in March 2010, the Veteran reported a history of having been struck by a motorcycle in the 1970's, resulting in fractures of the left shoulder and left lower extremity. More recently, he reported he was involved in a 2008 motor vehicle accident, with resulting whiplash injury. On VA examination in December 2010, he reported onset of neck pain in the 1970's. The December 2010 examiner opined that it was at least as likely as not the Veteran's current cervical spine strain and degenerative joint disease were related to his injuries sustained in service. The examiner did not, however, specify which injuries resulted in the current cervical spine disabilities. Most recently, the Veteran was afforded a September 2021 VA medical examination and opinion. The claims file was reviewed in conjunction with the examination. After examining the Veteran, the examiner diagnosed arthritis and degenerative disc disease of the cervical spine. Regarding the etiology of these disabilities, the examiner opined that these current cervical spine disabilities were less likely than not due to or otherwise related to service. The examiner noted the Veteran's contention, including that he was hit in the head by a hatch cover, but found it significant that there were no complaints of neck pain and an in-service medical examination revealed a normal cervical spine with no complaints of recurrent pain noted by the Veteran. The examiner also observed that the only in-service cervical spine injury noted in the service treatment records was the September 1961 incident wherein he fell while intoxicated, which was found to be willful misconduct. The examiner further noted the December 1961 service separation examination was negative for any abnormalities of the cervical spine. Regarding the Veteran's current degenerative arthritis and degenerative disc disease of the cervical spine, the examiner opined these were age-related, with onset many years after service. Thus, based on this competent evidence, the Board finds the Veteran's current cervical spine disabilities are unrelated to any in-service disease or injury incurred in the line of duty. While the December 2010 VA examiner did suggest a nexus between unspecified injuries in service and a current cervical spine disability, that examiner failed to differentiate between the various in-service incidents, to include those determined to be willful misconduct. Moreover, that examiner failed to address the Veteran's various post-service injuries, including multiple motor vehicle accidents, and his own statement that his neck pain did not begin until the 1970's, many years after service. As such, the more recent VA medical opinion is considered more probative. The Veteran has himself alleged that his current cervical spine disabilities were incurred in or otherwise related to service. 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. 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). REASONS FOR REMAND Entitlement to service connection for a psychiatric disability, claimed as depression is remanded The Veteran seeks service connection for a psychiatric disability, claimed as depression. He asserts such a disability is due to a service-connected disability, traumatic brain injury, and service connection is therefore warranted. VA treatment records confirm a current diagnosis of depression. Recently, the Veteran was afforded a July 2021 VA traumatic brain injury examination. While the examiner confirmed a current diagnosis of traumatic brain injury, he did provide a medical opinion regarding a possible nexus between this traumatic brain injury and the Veteran's depression. The Board finds such a medical opinion is necessary for adjudication of this appeal. The matters are REMANDED for the following action: 1. Forward the claims file to a suitable expert to provide an opinion regarding the etiology of the Veteran's depression. Following a review of the relevant records, the examiner is asked to note the presence of any current psychiatric disability. For any identified psychiatric disability, the examiner should: (a) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the identified psychiatric disability originated during or is otherwise etiologically related to the Veteran's military service and explain why. (b) Opine as to whether it is at least as likely as not a current psychiatric disability is due to or aggravated by (worsened beyond the natural progression of the disability) the service-connected traumatic brain injury. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 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.