Citation Nr: 21009626 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-09 502 DATE: February 23, 2021 ORDER Entitlement to service connection for cervical spine disorder is denied. FINDING OF FACT A chronic cervical spine disorder was not manifested in service; degenerative changes of the cervical spine were not manifested in the first post-service year; and any current cervical spine disorder is not shown to be related to the Veteran’s service or to have been caused or aggravated by a service-connected disability, including posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to April 1969. In May 2018, the Veteran testified at a Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Veteran waived RO consideration of any additional evidence added to his file. This appeal was previously before the Board August 2018, when an increased 70 percent rating for PTSD was granted throughout the appeal period and the claims for service connection for disorders of the cervical spine and both knees and hand tremors were remanded, and July 2020, when service connection for bilateral knee disorders was denied and the cervical spine and hand tremor service connection claims were remanded. Upon consideration of additional evidence obtained pursuant to the July 2020 Board remand, an interim November 2020 rating decision granted service connection for essential tremor, each upper extremity. As this rating decision represents a complete grant of the Veteran’s claim for service connection for hand tremors, the appeal as to this claim has been resolved and it is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). After review of the development accomplished by the Agency of Original Jurisdiction (AOJ), the Board concludes there has been substantial compliance with the August 2018 and July 2020 Board remand instructions and no further action is necessary as to the claim of service connection for a cervical spine disorder. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) (“It is substantial compliance, not absolute compliance, that is required” under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Notably, private treatment records, including in connection with cervical spine surgery at UCLA and from the Veteran’s primary care physician, have not been obtained and are not available for review (and, in July 2015, the AOJ certified that the Veteran’s treatment records from Palo Alto VAHCS (VA healthcare system) from January 1, 1974 to August 4, 2013 and Oak Knoll Naval Hospital from January 1, 1971 to December 13, 1973 are unavailable). Pursuant to the August 2018 Board remand, a July 2019 letter from the RO requested the Veteran authorize VA to obtain such records or he obtain and submit them himself. In addition, pursuant to the July 2020 Board remand, a July 2020 letter from the RO again requested authorization from the Veteran to obtain his private treatment records. However, the Veteran has not provided the requested authorization for VA to obtain his private treatment records and he has not submitted them himself. VA’s duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Given the Veteran’s failure to respond to the request for records that, if available, could substantiate his claim, the inference is that such records are either unavailable or that the Veteran declines to authorize their release because they do not support his claim. Regardless, VA is unable to obtain them without his authorization, and the Board finds that VA’s duty to assist is met. Accordingly, the Board will decide this claim based upon the available evidence. Turk v. Peake, 22 Vet. App. 565 (2008). Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). In addition, certain chronic diseases (including arthritis) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within a specified period of time post-service (one year for the aforementioned diseases). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking service connection for a cervical spine disorder. He contends that his current cervical spine disorder is the result of falling out of a helicopter while in Vietnam. See, e.g., February 2011 VA Form 21-526, Veteran’s Supplemental Claim, and May 2018 Board hearing transcript. Alternatively, he claims it is secondary to his service-connected PTSD. See October 2012 VA Form 21-4138, Statement in Support of Claim (Notice of Disagreement (NOD)), contending that the Veteran’s cervical spine stenosis is “caused by constant stress and anxiety” due to his PTSD and that he has experienced “pain and limited motion of [his] neck ever since suffering with PTSD.” As an initial matter, where it is established that a veteran served in combat and that veteran asserts service connection for injuries or disease incurred or aggravated in combat, not only is the combat injury presumed, but, absent evidence to the contrary, so is any disability incurred during the combat. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). See Reeves v. Shinseki, 682 F.3d 988, 998-1000 (Fed. Cir. 2012) (discussing the combat presumption under 38 U.S.C. § 1154(b)). Although service treatment records (STRs) are silent as to signs or symptoms that can be construed as related to impairment of the cervical spine, review of the STRs shows the Veteran served in combat (a November 1968 Clinical Record in connection with hospitalization for anxiety reaction notes the Veteran served in the Republic of Vietnam and was “unsuitable for return to combat”). As such, there is acceptable evidence in support of his assertion that his current cervical spine disorder is the result of duties required of him while serving in the military. Review of the record also shows the Veteran has a cervical spine disorder diagnosed during the appeal period. See, e.g., October 2019 VA cervical spine condition examination report showing a diagnosis of cervical strain status post cervical fusion with scar. In addition, January 2011 VA treatment records, when the Veteran presented to “establish care,” note the Veteran’s complaints of neck pain and history of 2005 “fusion surgery C2-6 due to disc collapse.” See also April 2011 VA examination (in connection with a psychiatric claim) noting the Veteran “had a fusion done to his neck in 2005,” VA cervical spine magnetic resonance imaging (MRI) reports dated in December 2012 (including findings of disc space narrowing C4/5 and C5/6 and slight degenerative central canal narrowing at C2/3) and February 2015 (noting an impression of artifact versus mild posterior impingement on the spinal canal at C2-3 and mild disc bulge at this level), October 2019 cervical spine X-ray noting orthopedic fusion C2 through C7, and recent VA treatment records noting “neck pain” on the Veteran’s active problem list. Accordingly, the remaining question for resolution is whether the Veteran’s current cervical spine disorder is etiologically related to his service or was caused or aggravated by his service-connected PTSD. The Veteran’s service treatment records (STRs) show his head, face, neck and scalp and musculoskeletal structure was clinically normal and he reported no history of back (or neck) pain on March 1968 enlistment examination. In addition, he had a normal physical examination in November 1968, in connection with mental health treatment. His DD Form 214, Armed Forces of the United States, Report of Transfer or Discharge, shows he was “[r]eleased from active duty on 20 March 1969 but retained on active duty in a retired status until 18 April 1969.” Subsequent STRs include March 1971 and March 1974 periodic physical examination reports which note physical examination was within “the limits of normal.” It is not in dispute that the Veteran has a cervical spine disorder, including degenerative disc disease. However, service connection for degenerative disc disease of the cervical spine on the basis that such disability became manifest in service and persisted is not warranted. The Veteran’s physical evaluations were normal in March 1974, 5 years after his discharge from active duty service, and he has reported undergoing cervical spine fusion in 2005, 36 years after his discharge from active duty service. Accordingly, the preponderance of the evidence is against a finding that arthritis may be presumed to have manifested within one year of service, or that service connection is warranted on the basis of continuity of symptomatology. As degenerative disc disease is not initially shown until many years after service (and the Veteran does not claim otherwise), service connection on a chronic disease presumptive basis (under 38 U.S.C. § 1112; 38 C.F.R. § 3.309(a)) is not warranted. While service connection may be shown by continuity of symptomatology post service, the record shows the Veteran’s earliest post-service cervical spine complaints was not until approximately 2005, when he reports having undergone cervical spine fusion. In addition, to the extent that the Veteran attempts to support his claim of service connection for a cervical spine disorder by his more recent accounts of continuity of symptoms since service, the Board finds such accounts to be inconsistent with contemporaneous clinical data, and not credible. In this regard, the Veteran’s March 1971 and March 1974 post-service periodic physical examination reports show normal physical examinations and his earliest report of post-service cervical spine treatment is not until 2005, approximately 36 years after service. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); see also Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding a declarant’s intent to speak the truth, the witness’s statement may lack credibility because of faulty memory due to passage of time). As such, the preponderance of the evidence is against a finding of continuity of cervical spine symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). [As noted above, the Veteran has neither provided VA with the treatment records associated with his 2005 surgery nor authorized VA to obtain these records on his behalf; thus, clinical evidence of the nature and initial onset of his cervical spine complaints is unclear. Notwithstanding, although the surgical records are not available for review, the fact that the Veteran has undergone such procedure has been confirmed by MRI and X-ray studies, which note postoperative changes.] What remains then is the question of whether, in the absence of a showing of onset in service and continuity since, the Veteran’s cervical spine disorder may otherwise be related to his service or his service-connected PTSD. Whether there is a nexus between his current cervical spine disorder and service (absent evidence of continuity) or his service-connected PTSD, is a medical question that requires medical expertise, which the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Veteran’s opinions that his current cervical spine disorder is related to injuries sustained during service or as a result of his service-connected PTSD are merely lay speculations and are not competent evidence. They are without probative value in this matter. The only medical opinions as to whether there is a nexus between the Veteran’s current cervical spine disorder and his active duty service or his service-connected PTSD are the opinions provided by the December 2019 and October 2020 VA examiners and they are against the Veteran’s claim. The December 2019 VA neck examination report shows a diagnosis of cervical strain status post cervical fusion with scar. After examination of the Veteran and review of the record, the examiner opined that the Veteran’s cervical spine disorder was less likely than not related to service. The explanation of rationale is that “there are no STRs that pertain to a neck or cervical spine condition during military service or in the years immediately following separation from military service. The Veteran underwent cervical spine fusion for spinal stenosis in 2006, approximately 37 years after discharge from military service. Furthermore, the November 1968 Narrative Summary for psychiatric treatment located in the Veteran’s STRs which notes the Veteran had been in the Republic of Vietnam for 2 months, had a normal physical examination. There was no neck condition noted.” The examiner also opined that it is less likely as not the Veteran’s cervical spine disorder is aggravated by his service-connected PTSD because “PTSD does not cause or aggravate cervical spine pathology beyond its natural progression.” [The Board has not relied on this negative opinion as it was without rationale]. Notably, although the examiner noted the Veteran’s cervical spine fusion was in 2006, the record shows the Veteran has indicated is surgery was in 2005 (April 2011 VA examination and 2006 (February 2011 VA Form 21-526b, Veteran’s Supplemental Claim). Pursuant to the July 2020 Board remand, which found the December 2019 opinion insufficient as to whether the Veteran’s PTSD aggravated his cervical spine disorder, an addendum opinion was obtained in October 2020. After review of the Veteran’s medical history and consideration of his contentions, the examiner opined that the Veteran’s cervical spine disorder is not due to his PTSD because “there is no pathophysiologic and anatomic association between the Veteran’s cervical spine condition and the service connected PTSD with depression. Veteran developed cervical stenosis in 2006 which is consistent with age related degenerative changes of the cervical spine and is not caused by a mental health condition. It is caused by wear and tear and age related degeneration of the cervical spine.” The examiner also opined that the Veteran’s cervical spine disorder was not aggravated by his PTSD because “[t]here is no anatomic or pathophysiologic association between the Veteran’s PTSD and the cervical degenerative disc disease with stenosis. There is no objective clinical evidence supporting any interaction between the PTSD, such that it would cause an aggravation of the Veteran’s degenerative disc disease of the cervical spine s/p fusion.” The December 2019 opinion with respect to the direct service connection opinion and the October 2020 VA opinions with respect to the secondary claims warrant substantial probative weight because they are based on examination of the Veteran and review of his claims file, are consistent with the evidence of record and are accompanied by a sufficient explanation of why the complaints and findings shown do not support a nexus between any currently diagnosed cervical spine disorder and his service or service-connected PTSD. Because the opinions include rationale that cite to factual data and the providers are medical professionals competent to offer the opinions, they are probative evidence in this matter. Because there is no competent (medical) evidence in the record which suggests that a disease, injury, or event in service or a service-connected disability may have been an etiological factor for the Veteran’s development of his current cervical spine disorder, the opinions against his claim are persuasive. The preponderance of the evidence is against the claim of service connection for a cervical spine disorder, including degenerative disc disease; therefore, the benefit of the doubt rule does not apply and the appeal as to this matter must be denied. Gilbert v. Derwinski, 1 Vet. App. at 54-56. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kshama Hughes 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.