Citation Nr: 21005645 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-25 428 DATE: February 2, 2021 ORDER Service connection for a neck disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that a disability of the neck disabilities of the neck began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1953 to January 1955. This matter came to the Board of Veterans’ Appeals (Board) from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied, in pertinent part, service connection for a right shoulder, right arm, neck disability, and back disability. The Veteran testified at a Board hearing in November 2014; the transcript is of record. These matters were remanded in January 2015, May 2016, and March 2017. In an October 2017 rating decision, service connection was established for thoracolumbar degenerative disc and joint disease, laminectomy, rated 40 percent disabling, effective June 15, 2010, and separate 40 percent ratings were assigned for lumbar radiculopathy, bilateral lower extremities, effective June 15, 2010. In an October 2019 decision, the Board denied, in pertinent part, service connection for disabilities of the right shoulder, right arm, and neck. The Veteran filed a timely appeal with the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR), the portion of the decision which denied service connection for a neck disability was vacated and remanded for action consistent with the JMPR. Service Connection The Veteran asserts that he has a neck disability as a result of an in-service motor vehicle accident. The October 2019 Board decision previously determined that a right shoulder disability and a right arm disability were not due to the in-service motor vehicle accident. 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 treatment records are unavailable, as they may have been destroyed in a fire at the National Personnel Records Center (NPRC). The Veteran asserts that he sustained injuries during an in-service motor vehicle accident while stationed in Korea. While the service treatment and military personnel records are unavailable, in records provided by the Veteran it is noted that he was evacuated to the hospital. 04/13/2005 Military Personnel Record. While the reason for the evacuation is not provided, the Board finds that the evidence is sufficient to establish an in-service incurrence and accepts the Veteran’s account of an in-service event. Indeed, an air evacuation would likely have only been undertaken for a significant injury or event, such as the truck accident described by the Veteran. Service connection has been established for thoracolumbar degenerative disc and joint disease, laminectomy, as due to service; and, service connection has been denied for a right shoulder disability and a right arm disability claimed as due to service. In July 1976, the Veteran filed a claim of service connection for a chronic low back strain; he did not claim disabilities of the neck and right shoulder/arm. A May 1976 treatment record reflects the Veteran’s report that he injured his back approximately one year prior; he did not report any disabilities of the neck and right shoulder/arm. 09/15/1976 Medical Treatment Record-Non-Government Facility. A February 1978 treatment record reflects the Veteran’s report of an injury in April 1975 and a severe chronic lumbar strain with sciatica was diagnosed. 06/22/1978 VA Examination. In June 1978, the Veteran filed another claim for “back trouble;” he did not claim disabilities of the neck and right shoulder/arm. 06/22/1978 VA 21-526 Veterans Application for Compensation or Pension. Pension was granted based on his lumbar strain disability. A February 1977 treatment record reflects the Veteran’s complaints related to the back, right hip, and right leg/knee; he specifically denied any significant difficulty with his neck or arms. The examiner’s impression was persistent back and leg pain following injury. 02/08/1979 Medical Treatment Record-Non-Government Facility. A July 1982 record reflects complaints of neck and shoulder pain, and the examiner stated that the Veteran has a cervical spine problem with nerve root encroachment secondary to arthritis. 12/08/2011 Medical Treatment Record-Non-Government Facility at 9. A July 1982 x-ray examination reflects disc degeneration with some cervical encroachment. 04/20/2015 Medical Treatment Record-Non-Government Facility at 5. A November 1983 clinical record pertaining to cardiovascular treatment reflects that the Veteran had a 6-to-8-year history of disabling arthritis (apparently secondary to trauma – at least initially) of the cervical, lumbar and thoracic spine with nearly constant pain with motion. 07/23/1987 Medical Treatment Record-Non-Government Facility at 11. There were no specific objective findings with regard to the lumbar or cervical spine. A July 1987 VA examination reflects complaints of coronary artery disease; chronic severe backache; and, dermatitis. The Veteran did not voice any complaints related to the neck or right arm/shoulder. 07/16/1987 VA Examination. An August 1987 VA orthopedic examination reflects the Veteran’s report of low back troubles since 1953. He reported that he was doing some unusual duties and strained his back and it subsided. The Veteran did not report an injury stemming from a motor vehicle accident. He reported reinjury to his back in the 1960s and in 1975. The Veteran did not raise any complaints related to the neck or right arm/shoulder. 08/12/1987 VA Examination at 5. In November 1988, the Veteran claimed a back condition due to service; he did not claim disabilities of the neck or right arm/shoulder. 11/02/1988 VA 21-4138 Statement in Support of Claim. A December 1997 treatment record reflects decreased extension and rotation of the cervical spine. 04/20/2015 Medical Treatment Record-Non-Government Facility at 42. A January 1998 record reflects an assessment of degenerative joint disease, lumbar strain and cervical strain, spondylosis. Id. at 41. A February 2009 record reflects an assessment of bicipital tendonitis, right shoulder. Id. at 25. The Veteran sought chiropractic treatment for right neck/shoulder pain in March 2010. 12/08/2011 Medical Treatment Record-Non-Government Facility. In June 2010, the Veteran asserted that he was in a truck accident during service and since then he has had back problems, right arm and shoulder problems, and neck problems. 06/25/2010 VA 21-4138 Statement in Support of Claim. In April 2017, a VA examiner opined that the Veteran’s neck disability (degenerative disc disease/degenerative joint disease cervical spine) was less likely as not incurred in or caused by the neck pain during service. The examiner stated that the Veteran did not report injury to his neck during active duty nor proximate to active duty. The examiner noted that there was medical documentation of a motor vehicle accident after active duty in December 2013. There is no documentation found of a neck injury during or proximate to active duty. Additionally, the 2012 cervical spine x-ray shows findings consistent with age. As detailed above, the Veteran’s service treatment records are unavailable, and the Board has conceded that there was an in-service incurrence requiring hospitalization. Thus, the April 2017 VA examiner’s reliance on the lack of any reports of a neck injury during service is troubling. Also, the April 2017 VA examiner references a December 2013 motor vehicle accident, but does not detail the in-service motor vehicle accident nor the neck/cervical spine complaints subsequent to service and prior to the December 2013 accident. Thus, the Board found the April 2017 lacking and another opinion was sought. In July 2019, a VHA examiner, specifically a Chief of Orthopedic Surgery, reviewed the claims folder and stated that as there are no service treatment records of the injury that occurred during the Veteran’s military service, it is impossible to determine if the Veteran’s current neck disability is due to the in-service accident. The examiner was unable to find any documentation in the records concerning the injuries that the Veteran reported as suffering in the in-service accident. Because of these limitations, the examiner could not state that the neck disability is due to the in-service motor vehicle accident. 10/01/2019 BVA-General. Based on the above, the Board concludes that the Veteran has a current diagnosis pertaining to the cervical spine and concedes that an in-service motor vehicle accident occurred. However, the preponderance of the evidence weighs against finding that the Veteran’s disability affecting the neck is due to the in-service event. As detailed above, despite the Veteran’s assertions in 2010 and thereafter that he sustained injuries to the neck (and right arm/shoulder) due to an in-service motor vehicle accident, at no time prior to this did he make any such assertions. Indeed, since the 1970s the Veteran had been attempting to establish service connection for a disability related to the lumbar spine and he did not assert any injury to the neck (or right arm/shoulder) until 2010. Moreover, the Veteran sought treatment on multiple occasions in the 1970s and did not voice any subjective complaints related to the neck and there are no objective findings related to the neck in that timeframe. Of particular significance, in February 1977, he specifically denied any significant difficulty with the neck and arms. It was not until July 1982 that there are any objective findings related to the cervical spine. As detailed above, a November 1983 treatment record pertaining to cardiovascular treatment reflects that the Veteran had a 6-to-8-year history of disabling arthritis of the cervical, lumbar and thoracic spine with nearly constant pain with motion. 07/23/1987 Medical Treatment Record-Non-Government Facility at 11. Such record, however, reflects no specific objective findings with regard to the lumbar or cervical spine. Such assertion from the Veteran suggests that he had been experiencing a history of disabling arthritis of the cervical, lumbar, and thoracic spine since about 1975-1977. However, this is in contradiction with the February 1977 record in which the Veteran denied any significant difficulty with the neck. As this denial was made in the course of seeking treatment it is deemed highly probative. Moreover, the medical record does not otherwise support a 7 to 8 year history of disabling arthritis of the cervical spine. Thus, the Veteran’s report to the November 1983 examiner suggests that the earliest timeframe in which he was experiencing neck problems was after February 1977. Thus, complaints pertaining to the neck is not shown until 1977, which constitutes a period of 22 years after separation from service. Furthermore, disability pertaining to the neck is not shown until 1982, which constitutes a period of 27 years after separation from service. It seems reasonable that if the Veteran was experiencing neck problems associated with service that he would have voiced such complaints when seeking medical treatment. Given this, and given that significant neck pain was expressly denied in February 1977, the Board finds that reports of continuity of symptomatology since an in-service motor vehicle accident are not credible, even while accepting that an in-service accident did indeed occur. Again, the finding against continuity is made based on the lack of any assertions or complaints in multiple submissions to VA and the lack of any complaints, treatment, or diagnoses in treatment records and examinations generated in the early 1970s, and with regard to the neck not until 1977. There is a complete lack of continuity of symptomatology exhibited in the evidence of record and the Board finds that the Veteran’s assertions and statements offered in support of VA claims and in seeking treatment in the 1970s and thereafter to be more credible than statements offered in 2010, over a half century after separation from active service. Moreover, the July 2019 VHA examiner proffered a negative etiological opinion with regard to the Veteran’s claimed neck disability. Such opinion was based on consideration of the Veteran’s assertions and review of the claims folder. The Board finds such opinion to be probative and relevant to the matter at hand. The Veteran has not offered any medical opinions in support of a relationship between his neck and the in-service incident. (Continued on the next page)   In conclusion, the most probative, competent evidence is against a link between a disability of the neck and active service. Because the preponderance of the evidence is against the issue, reasonable doubt does not arise, and service connection is denied. See 38 U.S.C. § 5107 (b). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.