Citation Nr: 21007960 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 13-36 399 DATE: February 11, 2021 ORDER Service connection for a cervical spine disability, to include degenerative arthritis of the cervical spine, intervertebral disc syndrome (IVDS), anterior cervical discectomy and fusion, and cervical radiculopathy, is denied. FINDING OF FACT The preponderance of competent evidence tends to show that it is less likely than not that the Veteran’s current cervical spine disability was incurred during or as a result of active service, or proximately due or aggravated by the Veteran’s service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability, to include degenerative arthritis of the cervical spine, IVDS, anterior cervical discectomy and fusion, and cervical radiculopathy, are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1985 to November 1989. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has a long procedural history and has been before the Board previously. To assist with adjudication of the matters listed above, the Board will provide a brief, historical summary. In September 2017 the Board found that there was no indication that the Veteran was notified of the scheduled hearing; thus, the issue on appeal was remanded for a new hearing to be scheduled. After a July 2018 videoconference hearing, the Board remanded the issue on appeal in October 2018 because the March 2012 examiner opined that the Veteran’s cervical spine disability was in no way related to her service-connected lower extremity disabilities. However, the examiner did not discuss the potential impact of the Veteran’s reported fall in the opinion. In August 2020 the Board again remanded the issue on appeal because the examiner did not discuss whether the Veteran’s cervical spine disability was aggravated by the Veteran’s reported fall. After this remand, VA obtain a medical opinion and addendum that discussed the Veteran’s medical history, to include the 2010 fall. This matter has now returned to the Board for appellate consideration and the Board finds substantial compliance with the prior remand directives. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). 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). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). As such, the Board has broadly characterized the issue on appeal as stated on the title page. The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for a cervical spine disability, to include degenerative arthritis of the cervical spine, IVDS, anterior cervical discectomy and fusion, and cervical radiculopathy. The veteran contends service connection for a cervical spine disability due to her service-connected lower extremity disability. Specifically, the Veteran asserted and testified that in approximately 2011 her right leg gave out as she was taking a step up, which caused her to fall and injure her neck. Additionally, the Veteran asserted she experiences pain and swelling. See 2/1/2012 Third Party Correspondence; see also 7/10/2018 Hearing Testimony, at pages 3, 4, 5, and 6. At the outset, the Board notes that the Veteran has a diagnosis of degenerative arthritis of the cervical spine, IVDS, and cervical radiculopathy. See 1/13/2015 Medical Treatment Records – Furnished by SSA, at page 5; see also 11/29/2019 C&P Examination. Additionally, the record showed that the Veteran underwent a C4/5 anterior cervical discectomy and fusion surgery. See 3/10/2012 VA Examination; see also 4/25/2012 CAPRI, at page 7. The Board will now analyze whether service connection is warranted by analyzing the second and third elements of service connection. As to the second element of service connection, as noted above, the Veteran asserted and testified that she injured her neck after a fall because her right leg gave way. The record showed that the Veteran fell in September 2010. See 4/25/2012 CAPRI, at page 1. The Board finds the Veteran to be credible in describing her fall and continued pain and swelling, as it is consistent with other evidence of record. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see Miller v. Wilkie, 32 Vet. App. 249, 254 (2020) (stating that the duty to assist also includes addressing a veteran’s lay reports of symptoms). Additionally, the record shows that the Veteran is service-connected for disabilities of the right knee and ankle. Thus, the second element of service connection has been met. The question before the Board therefore becomes whether there is a so-called “nexus” between the Veteran’s current cervical spine disability and service or to a service-connected disability. The Veteran underwent a VA examination in March 2012. At the conclusion of the examination, the examiner provided a negative nexus opinion – stating that her neck pathology is in no way related to or accelerated by her service-connected lower extremity disabilities. However, the examiner did not discuss if the Veteran’s fall caused her cervical spine disability. See 3/10/2012 VA Examination. Thus, the Board affords this opinion little weight. After the October 2018 Board remand, in November 2019 a medical doctor provided an addendum opinion. Unfortunately, the physician misconstrued part of the requested directives. The physician opined that there was no objective evidence that the Veteran had a cervical spine disability prior to entering active service, and that therefore there had been no aggravation. See 11/29/2019 C&P Examination. However, the October 2018 remand did not request an opinion as to whether a cervical spine disability was aggravated during service. Instead, the remand was seeking to determine whether the cervical spine disability that existed prior to the September 2010 fall was aggravated by that fall. This was not addressed in the physician’s opinions. As such, the Board affords this opinion little weight. After the August 2020 Board remand, in September 2020 an addendum opinion was obtained. Additionally, in October 2020, the VA physician provided an addendum opinion since the examiner failed to complete the correct section of the form in the September 2020 opinion. See 10/29/2020 C&P Examination. The Board finds the September 2020 VA opinion to be highly persuasive and worthy of much weight regarding the issue of whether the Veteran’s current cervical spine disability is related to service for the reasons explained next. The September 2020 VA physician opined that the Veteran’s current cervical spine disability was not aggravated by the Veteran’s reported fall. Specifically, the physician indicated that the records from 2011 do not show evidence of a sudden worsening of the disability; instead, the records show a more gradual progression of the symptoms, consistent with a degenerative process. See 9/22/2020 C&P Examination; see also 10/29/2020. Based on this, the Board finds that the rationale is logically supported, based on familiarity with the Veteran’s relevant medical history, and deserves great weight. Additionally, the Board places great probative weight on the September 2020 VA opinion in this case, as it is consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran’s specific disability picture, to include consideration of relevant facts such as the post-service medical record. The Board notes that the September 2020 opinion checked the box that the cervical spine did not clearly and unmistakably exist prior to service. However, the October 2020 addendum clarifies that the wrong section of the form was inadvertently completed. As such, the Board finds that when reading both the September 2020 and October 2020 reports together, to include the rationales, that the proper standard was utilized. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (stating that a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). The Board also acknowledges the lay statements from the Veteran. Such statements assert that the Veteran’s right leg gave way, she fell, and injured her neck and shoulder. See 2/1/2012 Third Party Correspondence; see also 7/10/2018 Hearing Testimony, at pages 3, 4, and 6. The Veteran is certainly competent to report symptoms, such as pain and swelling. See 7/10/2018 Hearing Testimony, at page 5. However, the Veteran is not competent to attribute her symptoms to aggravation by a service-connected disability as the record does not reflect that she has medical training and/or experience. See 1/02/2009 VA 21-8940. Therefore, the Veteran’s opinion on the etiology of the current cervical spine disorder is not competent and it lacks weight. The competent medical evidence, such as the September 2020 medical opinion, heavily outweighs the Veteran’s opinion and tends to show that the Veteran’s cervical spine disability was not aggravated by a service-connected disability. As discussed above, the Board finds this opinion to be probative and deserving weight as there is a supporting rationale why, to include reference to relevant facts in the record. The medical evidence clearly shows that the Veteran has had some form of cervical spine pathology since at least August 2001. A VA treatment note from that month states that a recent CT scan had found a small anterior osteophyte at C6-C7 but no foraminal stenosis. This predates her fall by approximately nine years. However, although the initial VA treatment records following the September 2010 fall do not show complaints regarding the cervical spine, they do show she began to experience cervical spine symptoms within a few months, and eventually had cervical fusion surgery in September 2011. Additionally, this competent evidence tends to show that the Veteran cervical spine problems began many years after her discharge from active service in 1989 breaking continuity of symptomatology of a chronic disease. (Continued on the next page)   In sum, service connection for a cervical spine disability, to include degenerative arthritis of the cervical spine, IVDS, anterior cervical discectomy and fusion, and cervical radiculopathy, is not warranted on any basis. As the preponderance of the evidence is against the claim, reasonable doubt does not arise, and the claim is denied. 38 U.S.C. § 5107(b). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.