Citation Nr: 21009529 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-13 751 DATE: February 22, 2021 ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for cervical radiculopathy is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s current neck disability is related to service. 2. The most probative evidence indicates that the Veteran’s cervical radiculopathy is not related to service nor caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a neck disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for cervical radiculopathy have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1978 to August 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In April 2018, the Board denied the Veteran’s claim for service connection for cervical radiculopathy, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a December 2018 Joint Motion for Remand (Joint Motion), the parties agreed that the Board failed to properly construe the Veteran’s claim as including service connection for a neck disability. The Board recharacterized the claims as shown above and remanded them in August 2019 for additional development. The case was last before the Board in July 2020 and has returned to the Board for further appellate review. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (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). Where a veteran served continuously for 90 days or more during active service and certain chronic diseases, such as arthritis and organic diseases of the nervous system, become manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for a neck disability The Veteran seeks service connection for a neck disability, which he asserts is related to service. At his November 2016 Board hearing, the Veteran testified that he has had pain in his neck, shoulders, and back since falling from a ladder during service. As an initial matter, the Board notes that the Veteran has a diagnosis of cervical disc disease, as shown by a January 2020 VA examination. Accordingly, the first element of service connection, a current disability, is met. Thus, the remaining question becomes whether such condition is related to service. Service treatment records confirm that the Veteran suffered a fall from a ladder in July 1979, at which time he complained of a left shoulder and wrist injury. A February 1981 treatment record reveals the Veteran complained of soreness in his neck, right shoulder, and back. An x-ray of the Veteran’s cervical spine revealed no fractures, subluxation, or significant degenerative changes; however, the Veteran was instructed to wear a cervical collar and placed on temporary restricted duty. A May 1981 treatment record reveals the Veteran was involved in a motor vehicle accident and complained of pain in his neck and right shoulder. An x-ray showed no fractures, subluxation, or significant degenerative changes. Thereafter, despite seeking treatment for various other conditions, subsequent service treatment records show no complaints of neck, shoulder, or back pain until June 1983 when the Veteran indicated that he had neck pain or stiffness and lumps or swelling in the neck in a report of medical history. The Veteran declined to undergo a separation examination. Post-service treatment records are absent evidence of a cervical spine disability until the Veteran underwent a VA examination in January 2020, during which the examiner indicated the Veteran had a diagnosis of cervical disc disease. The examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by service. The examiner explained that the potential cervical spine injuries the Veteran suffered in 1981 demonstrated no cervical spine pathology. In an August 2020 addendum opinion, the examiner indicated that the Veteran’s “yes” answer to whether he had neck pain and stiffness and lumps and swelling on his June 1983 report of medical history is a subjective response only and can be due to any perceived neck discomfort. The examiner explained that cervical spine pain and stiffness can be secondary to any number of minor acute (cervical spine strain) which are not considered to be chronic conditions nor convey any ongoing sequala of cervical disc disease. Moreover, the examiner explained that the Veteran’s report of neck pain and stiffness and lumps and swelling does not rise to the level of a medically diagnosed condition to consider for service connection. As such, the examiner opined that the Veteran’s current condition was less likely than not incurred in or caused by service. There is no medical opinion of record linking his current cervical spine disability with service. To the extent the Veteran believes that his current cervical spine disability is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of cervical spine disabilities are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the onset and etiology of his current cervical spine disability is not competent medical evidence. In sum, the Board concludes that the most probative evidence of record is against finding that the Veteran’s current neck disability was incurred in or caused by service. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for cervical radiculopathy The Veteran seeks service connection for cervical radiculopathy, which he asserts was caused by chemical exposure to methyl-ethyl-ketone (MEK) during service, or alternatively is the result of his cervical spine disability. In an April 2014 statement, the Veteran asserted that following a fall from a ladder in service he began experiencing pain in his right shoulder, right arm, and neck, and that he still suffers from pain in those areas. Additionally, the Veteran asserted that he has had problems with shooting pain, tingling and numbness, and stiffness in his shoulder, hands, and elbows since the falling from the ladder in service. Upon review of the record, the Board finds that the most probative evidence of record is against a finding that the Veteran currently suffers from cervical radiculopathy. The Veteran’s service treatment records reveal that the Veteran complained of a left shoulder and wrist injury after he suffered a fall from a ladder in July 1979. In February 1981, the Veteran complained of soreness in his neck, right shoulder, and back and was assessed as having right C6 radiculopathy and right T2-T4 radiculopathy. Thereafter, subsequent service treatment records show no complaints of or treatment for upper extremity numbness or tingling. The Veteran declined to undergo a separation examination. In January 2016, the Veteran underwent a VA peripheral nerve conditions examination, during which he reported recurring numbness in both arms that does not correlate to any particular movement. The examiner found that the Veteran did not have a current peripheral nerve condition or peripheral neuropathy. The examiner explained that while the Veteran was diagnosed with cervical and thoracic radiculopathy in service, there are no medical records indicating a chronic or recurring problem with radiculopathy between discharge in 1983 and the Veteran’s forklift accident in 2001. As such, the examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by service and any current symptoms are at least as likely as not caused by the forklift accident. The Board also notes that during a January 2020 VA neck conditions examination, the examiner indicated that the Veteran did not have radicular pain or any signs or symptoms due to radiculopathy. Although the Veteran claims to have experienced continued upper extremity numbness and tingling since service, the Board finds that such assertions are not consistent with the evidence of record. Despite seeking treatment for various other conditions, service treatment records show no complaints of upper extremity numbness or tingling after March 1981. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). On a June 1983 report of medical history, the Veteran denied any symptoms of numbness, tingling, weakness, paralysis, or pain in the extremities upon his discharge from active duty. Thereafter, the record shows no complaints of or treatment for upper extremity numbness until the Veteran filed his service connection claim in August 2010. Thus, the Board finds the contemporaneous evidence to be significantly more credible and probative than statements made for purposes of seeking compensation. See Cartright, 2 Vet. App. at 25; see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants’ observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran’s lay evidence). Although the Veteran believes that he has cervical radiculopathy that is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1377. In this regard, the diagnosis and etiology of neurological disabilities are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the onset and etiology his claimed cervical radiculopathy is not competent medical evidence. Further, as service connection for a cervical spine disability has been denied, there is no basis upon which to grant secondary service connection for claimed cervical radiculopathy. In sum, the preponderance of the competent, credible, and probative evidence is against the claim, and service connection for cervical radiculopathy is denied. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, 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.