Citation Nr: 21011284 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 10-27 855 DATE: March 1, 2021 ORDER Service connection for a cervical spine (neck) disability is denied. FINDINGS OF FACT 1. The Veteran did not experience chronic symptoms of a cervical spine or neck disability in service, but had several acute and transitory episodes of neck pain during his first period of service that resolved without residuals; any currently diagnosed cervical spine disability, did not have its onset in service and has not been etiologically linked to the Veteran’s first period of service or any incident therein. 2. Displacement of cervical intervertebral disc, as well as cervical disc disease, was diagnosed in December 1998 and the Veteran underwent cervical spine fusion and excision of intervertebral disc. 3. A cervical spine disability clearly and unmistakably existed prior to the Veteran’s second and third periods of active duty service (October 2002 to August 2003 and August 2006 to January 2008). 4. Preexisting C6-C7 fusion clearly and unmistakably was not aggravated by the Veteran’s second and third periods of active duty service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 1985 to August 1993, from October 2002 to August 2003, and from August 2006 to January 2008, to include service in Iraq. He also had service in reserve components of the military, to include a period of active duty for training (ACDUTRA) from May 1984 to August 1984. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas which, in part, continued a previous denial of service connection for a neck disorder. The Veteran requested a hearing before the Board in a June 2010 substantive appeal, and later requested a Board video conference hearing in October 2012. However, in subsequent correspondence received in May 2015, he withdrew his request for a Board hearing. Under these circumstances, the Board finds that the Veteran has been afforded his opportunity for a hearing and that his request to testify before the Board has been withdrawn. 38 C.F.R. § 20.704 (e). In an August 2016 decision/remand, the Board reopened the previously denied claim and remanded it to the agency of original jurisdiction (AOJ) for additional development. In a July 2017 decision, the Board denied service connection for a cervical spine disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2018, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s July 2017 decision and remanding the matter for readjudication. In March 2019 and April 2020, the Board remanded the case again for additional development. Service connection for a cervical spine disability is denied. The Veteran contends that his current cervical spine disability is a result of multiple complaints involving a head injury, both shoulders and his neck during his first period of active duty service. He believes that his diagnosed possible pinched nerve during his first period of service was the initial onset of his subsequent cervical disc disease. Evidence of record further raises the possibility of the aggravation of a preexisting cervical spine disability during the Veteran’s second and third periods of active duty service. The Veteran has not claimed and the record does not raise a question of whether a cervical spine disability was incurred or aggravated during a period of ACDUTRA. Therefore, the Board will not further discuss those periods of service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(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 disease or injury incurred or aggravated during service’-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. 38 U.S.C. § 1111 ; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111 ; 38 C.F.R. § 3.304 (b). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 ; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the evidence reflects the Veteran has current diagnosed disabilities of status post C6-C7 fusion with residual altered sensation of the skin of the right lateral neck, cervical strain, intervertebral disc syndrome (IVDS), spinal fusion, and segmental instability; as such the first element of the claim of service connection has been met. See, e.g., February 2010, September 2019, and September 2020 VA examination reports. As noted in the Introduction, the Veteran had three separate periods of active duty service. As will be explained below, the record clearly and unmistakably reflects that the cervical spine fusion preexisted his second and third periods of service. Therefore, for ease and clarity of discussion, the Board will first address the relationship between a cervical spine disability and the Veteran’s first period of service, and then discuss the relationship between a cervical spine disability, to include status post C6-C7 fusion, and his second and third periods of service. First Period of Service Service treatment records (STRs) for the Veteran’s first period of service show he complained of right shoulder pain without trauma in March 1985. A May 1987 emergency room record shows he was treated for soft tissue contusions after hitting his face in a vehicular accident. He denied any loss of consciousness at that time. In June 1988, the Veteran complained of non-traumatic pain under the left shoulder blade. He again complained of left shoulder pain in September 1992 after a bicycle accident and was assessed with a muscle ache. The STRs show the Veteran first complained of neck pain of one week’s duration in June 1990. The assessment was of a possible wrenched neck during jungle training. He was given aspirin and Bengay for pain and was instructed regarding warm soaks. In December 1992, the Veteran complained of being unable to move his neck and believed he had pinched a nerve in his back. The assessment was possible pinched nerve and the Veteran was placed on a physical profile for a neck strain. A June 1993 medical history report shows the Veteran gave a history of a head injury in 1987 with a fractured tip of the nasal bone that healed without sequelae or complications. There was no history of any neck or cervical spine symptoms. The accompanying discharge examination report shows that clinical evaluations of the neck and spine were normal. The Veteran’s STRs do contain complaints and treatment for neck pain, diagnosed as a possible pinched nerve and neck strain. Therefore, the record reflects there are in-service events for the Veteran’s first period of active duty service, and the second element of the claim of service connection has been established for this period of service. What remains to be established is that the Veteran’s current cervical spine disability is related to his first period of active service. A preponderance of the evidence is against such a finding. An October 1993 VA examination report shows that physical examination of the neck was grossly unremarkable and accompanying X-ray studies of the cervical spine showed no identified significant bony or soft tissue abnormalities. A December 1998 private treatment records show the Veteran underwent cervical fusion and excision of intervertebral disc for diagnosed cervical disc disease for symptoms that had begun in October 1998. In connection with the Veteran’s claim, he was afforded a VA neck examination in February 2010. Significantly, the examiner opined that it was less likely than not that the Veteran’s current cervical spine disability was the result of the inservice incidents or events, including the head injury, bilateral shoulder pain and neck pain treated during service in the 1980s and 1990s. The examiner further opined that it was at least as likely as not that the current cervical spine disability was the result of his worker’s compensation injury in 1997 or 1998. The physician based his conclusion on the Veteran’s medical history and explained that the pain pattern that led to the cervical spine fusion was different from the pattern described after the Veteran’s in-service incident. Significantly, the August 2018 JMR found that the February 2010 VA medical opinion was inconsistent and finding that 1) the “pain pattern” that led to a cervical spine fusion in December 1998 was “different from the pattern described after in-service incident” and 2) that the Veteran had a head injury during service in 1987/1988 and that after service in 1996 he had “neck pain in the same region as before with more severe pain.” As such, another VA medical opinion was obtained in September 2019. The September 2019 VA examiner also opined that it was less likely than not that the Veteran’s current cervical spine disability was the result of the Veteran’s active service. As rationale for this opinion, the examiner wrote that multiple service periods and worker’s compensation materials were all taken into account, and found that it was more likely than not that the Veteran’s complaints of neck pain, which began in 1987 after a service related MVA (motor vehicle accident) are related to the Veteran’s post-service job injury in 1996 while working for Kingsdown Mattress Company. Therefore, the Veteran’s medical records do not support that the currently diagnosed cervical strain, IVDS, spinal fusion, and segmental instability are at least as likely as not (50 percent or greater probability) incurred in or caused by the cervical spine disability noted during service. Unfortunately, as was noted in the April 2020 Board remand, the September 2019 VA opinion is also inadequate as the rationale for the opinion appears to suggest that the Veteran’s complaints of neck pain prior to 1996 were due to an on-the-job injury that occurred afterwards; which does not support the examiner’s ultimate opinion. As such, another VA medical opinion was obtained in September 2020. The September 2020 VA examiner also opined that it was less likely than not that the Veteran’s current cervical spine disability was the result of the Veteran’s active service. As rationale for this opinion, the examiner wrote that the cervical spine disability occurred on a private job injury while loading and unloading mattresses in 1996. No injury was noted that is service connected. The examiner noted that while service treatment records pertaining to the period of service from 1985 to 1993, show that the Veteran was treated for a neck pain in 1990 and neck strain in 1992, no chronic disability was shown at separation from the first period of service. The Board places substantial weight of probative value on the collective opinions of the February 2010, September 2019, and September 2020 VA examiners, particularly the September 2020 VA opinion, as it provides a rationale that reflects knowledge of the Veteran’s pertinent history and medical records – to include both in service and after – and explains the disability in sufficient detail. There is also no contrary opinion of record on this aspect of the claim. The fact remains that the Veteran left service in 1993 with no chronic issues with his neck, and had a significant injury several years after. The Board has considered the Veteran’s lay statements that his current cervical spine disability is related to the injuries that occurred during his first period of active service. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the disability at issue in this case could have multiple possible causes and thus, falls outside the realm of the common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places the most weight of probative value on the September 2020 VA physician’s opinion and finds it persuasive of a conclusion that a current cervical spine disability was not incurred in or otherwise related to the Veteran’s first period of active duty service. Second and Third Periods of Service With regard to the Veteran’s second and third periods of service, the evidence of record raises the theory that the Veteran’s residuals of a cervical spine fusion preexisted his second and third periods of active duty service and was aggravated by these periods of service. The service entrance examinations for the Veteran’s second and third periods of active service are not of record. Therefore, the Veteran is presumed sound as to a cervical spine disability at entrance into his periods of active duty service that began in October 2002 and August 2006 respectively. See Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a Veteran’s entrance examination has been lost or destroyed)). In order to rebut the presumption of soundness, VA must first prove that there is clear and unmistakable evidence that the disability existed prior to acceptance and enlistment into service. Here, the Board finds that there is such clear and unmistakable evidence as private treatment records show that the Veteran underwent cervical spine fusion at level C6-C7 in December 1998, prior to his second and third periods of service. Likewise, the cervical spine fusion was noted in histories taken in VA treatment records and examinations as early as 2004. This evidence clearly and unmistakably establishes that the Veteran’s cervical spine fusion existed before the Veteran’s second and third periods of service. VA must further prove by clear and unmistakable evidence that the Veteran’s preexisting status post cervical spine fusion was not aggravated by service during his second and third periods of service. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Quirin, 22 Vet. App. at 397. Service treatment records for the Veteran’s second period of service from October 2002 to August 2003 and for his third period of service from August 2006 to January 2008 show no relevant complaints, findings, treatment or diagnoses for a cervical spine or neck disability. A January 2009 VA examiner found that the Veteran’s occasional cervical pain was the result of his prior cervical fusion surgery and opined that there was not objective evidence that there was any permanent aggravation of any preexisting condition caused by recent active duty service. Unfortunately, the January 2009 VA examiner did not provide rationale for this opinion. The February 2010 VA opinion also concluded that the Veteran’s preexisting status post cervical spine fusion was not aggravated by his more recent service. The physician provided a rationale that at the time of the examination the Veteran reported no neck complaints with his post-operative deployments. Similarly, the September 2020 VA examiner found that the Veteran’s preexisting status post cervical spine fusion was not aggravated by his more recent service as STRs pertaining to the two most recent periods of active duty service are silent for complaints of, or diagnosis for a chronic neck condition, to include there being no history of injury. Furthermore, the September 2020 VA examiner noted review of an August 2005 VA treatment record showing a history of the Veteran sustaining an on-the-job neck injury that required him to undergo a diskectomy in 199[8], which was not during a qualifying period of active service. As such, the September 2020 VA examiner found that it was necessary to consider any residual disability as a pre-existing condition. In order to establish service connection for a pre-existing condition, the medical evidence must show that the disability was permanently worsened as result of service. After August 2005, the Veteran was not seen again at VA until July 2008. A review of more recent clinical records only disclosed complaints of cervical pain. The most recent VA neck examination in September 2020 continues the diagnosis for status post cervical fusion with cervical strain and scar and confirmed the presence of the cervical fusion without evidence of compression deformities, fractures, degenerative changes, or disc space narrowing. In the absence of evidence showing re-injury or the permanent worsening of this disability during service, there is no indication that the Veteran’s current cervical spine disabilities were incurred in or aggravated by his military service. Although each of these opinions only find that it was less likely than not that the Veteran’s cervical spine condition was aggravated, and do not provide clear and unmistakable evidence that the condition was not aggravated by the Veteran’s service, the Board finds that these opinions, in conjunction with evidence that the Veteran had no complaints of neck pain during either his second or third period of service represents clear and unmistakable evidence that the Veteran’s preexisting status post cervical spine fusion was not aggravated by service during his second and third periods of service as there was no increase in the disability during either period of service. In reaching this determination, the Board also finds probative that the Veteran has not alleged that there was any increase in his disability during these periods of active duty service. He has repeatedly argued that his current cervical spine disability is a result of an injury during his first period of active duty. The record does not contain any other evidence addressing whether the Veteran’s cervical spine disability was aggravated by service. Hence, the Board concludes that the September 2020 opinion, in particular, in conjunction with review of the service treatment records, provides clear and unmistakable evidence that the Veteran’s cervical spine fusion was not aggravated by his second and third periods of service, as it is stated in conclusive terms, reflects complete consideration of the competent evidence of record, and provides a detailed rationale for the conclusion reached. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). In this case, the evidence clearly and unmistakably establishes that the Veteran’s cervical spine fusion preexisted his second and third periods of active duty service and that it was not aggravated by those periods of service. Hence, the presumption of soundness is rebutted and the second element of the claim for service connection based on the Veteran’s second and third periods of service is not established. As such, the Veteran’s cervical spine disabilities cannot be found to have been incurred or aggravated during any period of active duty service, and a preponderance of the evidence is against all theories of entitlement alleged by the Veteran or raised by the record. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, service connection for a cervical spine disability is not warranted. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.