Citation Nr: 21076168 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-00 589 DATE: December 22, 2021 ORDER Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability, is denied. FINDING OF FACT A cervical spine disability was not manifest in service, it is not otherwise attributable to active service, nor was it proximately due to or aggravated by a service-connected disability; any potential arthritis was first shown many years after service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1973 to February 1977 and September 1984 to December 1987. This appeal comes before the Board of Veterans Appeals (Board) from a December 2013 rating decision from a Regional Office (RO) of the Department of Veterans Affairs (VA). In his December 2015 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. The hearing was scheduled for September 2018, but the Veteran did not attend. He has not offered good cause for his failure to appear at the hearing or request that such be rescheduled. Therefore, the Board considers his request for a hearing to be withdrawn. In May 2019 and June 2021, the Board remanded this appeal for further development. The case has since been returned to the Board for additional appellate review. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability, is denied. The Veteran asserts service connection is warranted for a cervical spine disability. He claims his neck pain started in 1984/1985 due to cumulative trauma from frequent bending and heavy lifting while in service. In the alternative, the Veteran also claims his neck disability is related to his service-connected headaches and/or service-connected low back disability. 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); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). 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). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Arthritis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Alternatively, a nexus to service may be presumed where there is continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis After weighing the evidence, the Board concludes that the more probative evidence is against the Veteran's claim for entitlement to service connection for a cervical spine disability. First, the Veteran has a current diagnosis of degenerative disc disease of the cervical spine. See December 2019 VA examination. As such, Shedden element (1), current diagnosis, is met. Service treatment records show treatment for tense muscles in the upper neck in August 1975, and treatment for a headache accompanied by a stiff neck in October 1975 and July 1987. See August 1975 Service Record. The Veteran also reported possible head trauma in 1972 or 1973 when he hit his head on a windshield. The Veteran demonstrated complaints of neck pain and limited motion in service. Therefore, element (2), an in-service incurrence or aggravation of a disease or injury, is met. Unfortunately, element (3), nexus, is not met. The Board acknowledges that the December 2019 VA opinion was based on an inaccurate statement that the Veteran did not have any treatment with respect to a neck disorder. As such, the Board cannot accept this medical opinion. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise is not probative). Importantly, however, pursuant to the June 2021 remand, the Veteran underwent another VA examination in August 2021. See August 2021 Examination. Notably, the August 2021 examiner opined that the Veteran's claimed cervical spine disability is less likely than not incurred in or caused by service, explaining there was no evidence of degenerative disc disease in service. The examiner considered the Veteran's complaints of in-service of neck pain as well as his theory that his neck disorder is due to cumulative trauma from frequent bending and heavy lifting but noted that the Veteran's December 1987 discharge examination did not indicate evidence of a neck disability. The examiner also found there was no evidence of chronicity. The Board finds the August 2021 VA opinion highly probative because the examiner had the appropriate training, expertise, and knowledge to evaluate the claimed disorder. Furthermore, the examiner also reviewed the records, performed a clinical examination, and considered the Veteran's statements regarding the nature and history of his condition. The Board also finds that the Veteran's current cervical spine arthritis did not have an onset within one year of discharge from service. The earliest probative evidence of his current degenerative disease is many years after service. As such, the Board finds that the evidence does not persuasively indicate the Veteran's claimed neck disability had an onset within one year of discharge from service. Additionally, there is no persuasive evidence of arthritis of the neck in service. To show 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. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. In sum, characteristic manifestations sufficient to identify the disease (arthritis) entity were not noted during service. As there is no such evidence, and as the preponderance of the evidence shows that arthritis did not manifest in service or until years later, chronicity during service is not established. See 38 C.F.R. § 3.303 (b). Continuity of symptoms is also not established. The Veteran is competent to report his symptoms of recurrent neck pain. The Board also notes that evidence of treatment is not required to establish continuity. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)) (holding that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology"). Nevertheless, the Veteran's lay testimony is not sufficient in itself to establish continuity of symptoms for purposes of service connection under 38 C.F.R. § 3.303 (b). In this regard, as noted, the service treatment records show that although the Veteran reported neck pain, the separation examination did not note a neck or cervical spine disorder. Following service, the Veteran reported he was treated by a chiropractor in the 1990's for neck pain. See June 2013 Statement. However, the Veteran denied head or neck trauma in August 2011 and reported to treatment providers in September 2013 that he experienced the onset of left arm shooting pain 2 years prior, with no specific injury to the neck or arm at that time. See August 2011 Medical Record; see also September 2013 Medical Record. The Veteran also reported an onset of loss of range of motion 15 years prior to his December 2015 VA Form 9, or in approximately 2000. See December 2015 VA Form 9. Additionally, the Veteran reported to treatment providers in June 2016 that he had chronic neck pain for greater than 20 years, but he denied any specific injury and attributed his pain to normal wear and tear. See June 2016 Medical record. Thus, to the extent the Veteran now currently contends that he has had neck pain ever since service, this is inconsistent with other statements of record, which thereby renders the assertion of continuity of symptoms unreliable and consequently not credible. Accordingly, the preponderance of the evidence weighs against the Veteran's lay statements asserting a continuity of symptomology ever since service. Thus, service connection for arthritis of the cervical spine is not established based on a continuity of symptomatology. See 38 C.F.R. § 3.303 (b). Finally, the Board finds there is no persuasive evidence to support the Veteran's theory that he has a cervical spine disability that is secondary to his headache or lumbar spine disabilities. Regarding secondary service connection, the August 2021 VA examiner indicated that there was no evidence of a relationship between headache or lumbar spine disabilities causing cervical degenerative disc disease. The August 2021 examiner explained that there is no medical literature indicating a link between development of cervical spine degenerative disc disease and headache or lumbar spine disability. The examiner also opined that it was less likely than not that the Veteran's cervical spine disorder was proximately due to or aggravated by any of the Veteran's service-connected disabilities, noting that medical literature does not indicate any such relationship. The examiner then indicated that a baseline of severity for cervical spine disability could not be determined but opined that it was less likely than not that the Veteran's headaches or lumbar spine disability aggravated cervical spine degenerative disc disease beyond the normal progression of the disease based on medical record review and a lack of evidence in medical literature. In light of the above, a preponderance of the evidence shows that the Veteran's cervical spine disability was not incurred in service or caused or aggravated by a service-connected disability. The Board finds the reasoning of the August 2021 VA examiner highly probative as it included a detailed review of the evidence, provided fully supported rationale consistent with the evidence, and considered the Veteran's claims regarding his cervical spine disability and onset. The examiner found that the Veteran's complaints of neck pain that he received treatment for during service had resolved by the time of his discharge. The examiner also confirmed any diagnoses associated with a cervical spine disability and have remarked that any condition is less likely than not attributable to service or related to a service-connected disability. In sum, the most probative evidence of record is against showing that the Veteran's cervical spine disability is related to service or his service-connected disability. The Veteran has not submitted any medical opinions in support of his claim. Instead, he relies on his own lay statements that he has a cervical spine disability that is directly due to service or is secondary to a service-connected disability. The Board has considered these statements regarding the nature and etiology of his disorder. The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss pain and other symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board also acknowledges the lay evidence asserting that the Veteran's neck problems started while in service or are secondary to his service-connected disabilities. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the Veteran's cervical spine disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The nexus question presented here involves knowledge of an internal physical process extending beyond an immediately observable cause-and-effect relationship. Accordingly, though the Veteran is competent to report his symptoms, he is not competent to provide an opinion as to nature and etiology. In summary, although the Veteran had in-service symptoms and a current diagnosis, there are no probative persuasive medical opinions linking his current disorder to service, there is no probative persuasive evidence that his disorder began within one year of discharge, and there is no probative persuasive evidence that his disorder is proximately due to or aggravated by a service-connected disability. (Continued on the next page) For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a cervical spine disability. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.