Citation Nr: 21077564 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 13-12 495 DATE: December 30, 2021 ORDER Entitlement to service connection for a neck disability, to include as secondary to service-connected degenerative disc disease of the lumbar spine, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's neck disability was incurred during active duty or caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a neck disability, to include as secondary to service-connected degenerative disc disease of the lumbar spine, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1986 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2014, a Travel Board hearing was held before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was remanded by the Board in February 2015, November 2019, and September 2021. In February 2015, the issue was remanded in order to obtain medical records. In November 2019, the issue was remanded in order provide the Veteran with an additional VA examination and obtain an etiological opinion. In September 2021, the issue was remanded due to the inadequacy of the opinions. The requested development has been substantially complied with and is again before the Board for additional appellate consideration. Entitlement to service connection for a neck disability, to include as secondary to service-connected degenerative disc disease of the lumbar spine. In this post-remand case, the Veteran seeks service connection for a neck disability, to include as secondary to his service-connected lumbar spine disability. As shown more fully below, the Board finds entitlement to service connection on a direct, secondary, or based on aggravation is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2017). 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. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Analysis Private medical treatment records from December 2010 indicate the Veteran visited a private medical practice with complaints of pain in his neck and weakness in his arms. It was proposed that the Veteran undergo an anterior cervical corpectomy, C6, with fusion, plating, and cages following failed conservative management. The Veteran stated that he "is definitely ready for his surgery." Shortly after, he underwent surgery for her cervical spine. A follow-up from a March 2011 medical summary indicates the Veteran had a final discharge diagnosis of cervical stenosis. Given the evidence of a current disability, the Board finds the first element necessary for direct and secondary service connection to be met. The Veteran was afforded a VA examination for his neck in June 2011. He contends his neck disability is secondary to his service-connected lumbar spine disability. During his June 2011 VA examination, he stated that he thought when he was on active duty he underwent an X-ray that might have shown a cervical spine disability occurred. Later in the examination, the Veteran clarified that his cervical spine disabilities actually began one to two years prior to the date of his examination. This statement contradicts his earlier statement regarding continuity of symptoms since separating from service. At the time of the Veteran's May 2014 hearing, while the Veteran reported feeling discomfort throughout his spine prior to discharge, he did not at any point mention the continuation of pain in his cervical spine from that time to the present. Furthermore, the Veteran's service treatment records (STRs) are silent as to complaints, treatment, or a diagnosis for his neck. During his hearing with the undersigned VLJ in May 2014, the Veteran discussed how he injured "the middle of the torso area" while shutting a helicopter door. He primarily described the pain to revolve around the lower back area. The Board notes the Veteran is currently service connected for degenerative disc disease of the lumbar spine. He is currently assigned a 40 percent disability rating with an effective date of August 30, 2010. As such, given the lack of evidence of an in-service event or injury and the Veteran's statement to the examiner at his June 2011 examination, the Board finds the second element necessary for direct service connection has not been met. However, given his credible testimony and his currently service-connected lumbar spine disability, the Board finds the second element necessary for secondary service connection has been met. As it pertains to the final element necessary for secondary service connection, a nexus, the Board finds the preponderance of the evidence is against finding the Veteran's neck disability to be proximately due to or caused by his service-connected lumbar spine disability. During his Board hearing, the Veteran asserted that he underwent a CT scan of the cervical spine while stationed at Ft. Belvoir. In a February 2015 Board decision, this matter was remanded in order to obtain any outstanding medical treatment records to include the X-ray and/or CT scan of the cervical spine. Following the Board's remand, the issue returned to the Board and was subsequently remanded in order to provide the Veteran with an appropriate VA examination. The Board noted a VA examination was conducted in June 2015 for the Veteran's lumbar spine disability, but the accompanying medical opinion did not address whether there is a nexus to service. Specifically, no evidence of a CT scan was found and associated with the Veteran's record; therefore, no opinion was rendered. The Veteran underwent a VA cervical spine examination in May 2021. The examiner found the Veteran to have a current diagnosis of spinal fusion. He reported pain in his neck and pain and tingling radiating down both arms to his fingers. Negative opinions regarding direct and secondary service connection to include aggravation were provided. With regard to direct service connection, the examiner noted the Veteran asserts he sustained chronic neck pain in service but provided that the service treatment records (STRs) do not contain any complaints. Furthermore, the Veteran underwent cervical fusion due to his degenerative disc disease; as such, a nexus could not be established. With regard to secondary service connection, the examiner noted the lack of in-service treatment for his disability and that clinical findings do not support his neck disability is related to his lumbar spine disability. As for aggravation, the examiner noted they were unable to determine a baseline severity given the evidence that the Veteran denied any complaints of a neck disability at the time of enlistment. Further, the examiner noted the current severity is greater than the baseline but stated his neck disability was not aggravated beyond its natural progression. However, the Board previously found these opinions to be of little probative value and the issue was again remanded in order to obtain an additional addendum opinion. Addendum opinions regarding secondary service connection were obtained in October 2021. The examiner stated that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected disability. The examiner provided the rationale that, based on a review of the medical records, there is no evidence documenting that the Veteran's lumbar spine disability directly or indirectly caused a cervical spine disability. The examiner additionally stated that even though the examiner could not establish a baseline for the cervical spine disability to determine the possibility of aggravation, the examiner did not find that such aggravation occurred. The examiner explained that there is no plausible pathophysiologic mechanism discussed in medical literature and known medical principles that would explain such a causal relationship between these conditions. The Board finds this opinion to be of probative value because the examiner explains that medical literature and known medical principles do not explain a relationship or plausible pathophysiologic mechanism between the two disabilities. With respect to service connection for a cervical spine disorder on a direct service connection basis, the Board further notes that there has not been a consistent report of a continuity of relevant symptoms since service. More specifically, at an examination in 2011, that Veteran was first note the existence of neck symptoms since service, in an additional statement, he was noted to report the onset of symptoms 1 to 2 years prior to the 2011 examination. Moreover, as noted previously, while the Veteran believes that relevant diagnostic findings previously existed with respect to the cervical spine, such findings unfortunately do not exist, and there is no indication that any further attempts to obtain such findings would be other than futile. In addition, the May 2021 examiner did not find a direct association between the Veteran's cervical spine disorder and service, in part, based on the current severity of the Veteran's cervical spine disorder, and while the opinions of this examiner were found inadequate regarding the issue of secondary service connection, they were not found by the Board to be inadequate with respect to the issue of direct service connection. There is also no competent medical opinion of record that contradicts this examiner's opinion with respect to direct service connection. Therefore, given the negative opinions regarding direct and secondary service connection, and the inconsistent reports of continuing pertinent symptoms in the Veteran's neck since service, the Board must unfortunately conclude that the preponderance of the evidence is against a finding that service connection for a neck disability is warranted. In reaching this decision, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.