Citation Nr: 21011823 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-12 684 DATE: March 2, 2021 ORDER Entitlement to service connection for cervical-spine disorder, with left-arm numbness, to include as secondary to service-connected lumbar-spine disorder, is denied. FINDINGS OF FACT 1. The objective medical evidence shows that cervical-spine disorder, with numbness in the left arm, was not incurred during active service, it is not caused by an event, injury or illness during active service, nor is it proximately due to or the result of service-connected lumbar-spine disorder. 2. The objective medical evidence shows that arthritis, as associated with cervical-spine disorder, did not manifest to a compensable degree within one year of separation from active service. CONCLUSION OF LAW The criteria for service connection for cervical-spine disorder, with numbness in the left arm, to include as secondary to service-connected lumbar-spine disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from October 1972 to October 1974, from October 1974 to November 1979 and from November 1979 to November 1980. In October 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The matter was most recently remanded in May 2020. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Certain chronic diseases, including arthritis, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). 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. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing and in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). Entitlement to service connection for cervical-spine disorder, with left-arm numbness, to include as secondary to service-connected lumbar-spine disorder. The Veteran’s service treatment records (STRs) show that in in the June 1972 enlistment examination and the April 1976 periodic examination, categories pertaining to neck and arms were checked off as normal and the Veteran denied past or current related disorders in the enlistment examination. Although in March 1977 the Veteran reported numbness in his fingers, there were no further such reports or reports of neck pain or limitation of motion. In August 1977, the Veteran presented for treatment after being struck in the forehead with a brake pedal or “shoe” of a vehicle, when, during maintenance, it sprung back into place after being accidentally disengaged from its “on” position, resulting in a large hematoma at the frontal side of the head. X-rays were negative and neurological findings were negative. The post-service treatment record shows that, in April 2015, the Veteran underwent a VA examination for cervical spine. The VA examiner diagnosed cervical sprain/strain and intervertebral disc syndrome (IVDS). Testing revealed some reduced range of motion for lateral flexion and some reduced muscle strength in right-shoulder maneuvers, with otherwise normal findings. The April 2015 VA examiner identified some radicular symptoms in the upper extremities, with numbness. Additionally, he noted that no imaging studies had been performed. The April 2015 VA examiner opined that the Veteran’s cervical-spine disorder is less as likely as not related to the Veteran’s lumbar-spine disorder. He further opined that cervical-spine disorder is less as likely as not related to military service. In his rationale, he explained: “The lumbar spine DJD and laminectomy with residuals are likely to not be contribut[ing] to the claimed neck condition. The lumbar spine condition would not affect the upper body, but would only affect the lumbar spine and down. Additionally, at this time, the C file does not endorse any treatment records associating the claimed neck condition and the rated lumbar spine condition. Therefore, a nexus cannot be made between the two…. The C file review did not endorse any STRs relating to the claimed neck condition at this time. The Veteran’s history does report the onset of the neck injury in service. However, with insufficient evidence[,] a service connection is unremarkable for the time being.” In July 2016, the Veteran underwent an MRI of the brain. Findings revealed no masses, edema or hemorrhages. The report’s conclusion stated: “Partially empty sella, a finding which is commonly incidental and of no significance, but which has a reported association with pseudotumor cerebri. Otherwise unremarkable exam.” A July 2016 MRI of the cervical spine revealed “[t]he visible portions of the brain are normal. There is no malalignment, compression deformity, or concerning marrow signal. No concerning paraspinous soft tissue finding.” The conclusion was “[m]ultilevel degenerative changes, most prominent at C3[-]4 where there is a severe spinal stenosis. There is T2 signal abnormality within the compressed cord.” Following later in July 2016 was a private treatment anterior cervical discectomy for decompression and fusion at C3-4,with hardware at Alta Orthopedics. Between August 2016 and February 2018, the Veteran continued with follow-up treatment with his private treatment providers for cervical spondylosis with myelopathy. X-rays revealed the surgically installed hardware was stable and fusion was progressing. A December 2016 electromyography (EMG), conducted at VA, showed results which did not meet diagnostic criteria for cervical radiculopathy. In May 2020, following a decision of the Court of Appeals for Veterans Claims, the Board remanded this claim for an adequate VA examination for cervical-spine conditions, as the April 2015 VA examination did not contain a “reasoned medical explanation” connecting the supporting data and conclusions regarding the Veteran’s cervical-spine disorder necessary for an adequate opinion under 38 U.S.C. § 5103A. Additionally, the opinion for secondary service connection was determined to have been phrased in unclear and inconclusive language. A VA examination for cervical-spine conditions followed in September 2020, in which the VA examiner stated 2016 diagnoses for degenerative arthritis of the spine, IVDS and spinal fusion. In extensive testing on examination, the September 2020 VA examiner found moderate intermittent pain and numbness in the left-upper extremity and right-upper extremity, showing involvement of the C5/C6 nerve roots (upper radicular group) at a mild level of severity of radiculopathy. Although the September 2020 VA examiner found the Veteran has IVDS, he further found there had not been any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Additionally, he found available imaging studies documented arthritis (degenerative joint disease). The September 2020 VA examiner first opined that cervical-spine disorder is less likely due to a service injury. He noted the STRs showing the Veteran’s August 1977 injury to his head when struck by the brake shoe springing out of position when he was working on a vehicle wheel assembly, but also noted that, although exhibiting hematoma on his forehead, a neurological examination was normal and there was no further follow-up. He further noted from the record that the first documentation of pain was in a April 2013 VA clinic note. The September 2020 VA examiner explained in his rationale that the Veteran’s current cervical-spine condition cannot be related to one documentation of being hit on the forehead, but followed by a negative neurological examination and no documentation of neck pain. For his next opinion, the May 2020 Board Remand requested the September 2020 VA examiner to review the April 2015 VA examiner’s opinion, with its conclusion regarding secondary causation that the Veteran’s “lumbar spine condition would not affect the upper body, but would only affect the lumbar spine and down” and provide a rationale, by which this conclusion is supported with references to and discussion of findings in the April 2015 VA examination or a new VA examination, if deemed necessary by the examiner, or to clinical findings in the medical evidence of record and/or to accepted medical literature. The September 2020 VA examiner opined and explained, “I guess this opinion only to say what text book the physician in 4/2015 at that time used I cannot say without speculation what reference was used by the [D]r at that time [sic].” The Board finds the finding clear. The beginning of the September 2020 VA examiner’s sentence simply indicates he does not happen to know what particular medical text the April 2015 VA examiner might have referenced and he confirms this at the end of the sentence. However, the September 2020 VA examiner does not express disagreement with the April 2015 opinion for secondary service connection, due to the Veteran’s service-connected lumbar-spine disorder, nor does he offer an alternative opinion. Lastly, available imaging studies in the September 2020 examination documented arthritis, as well as the July 2016 MRI report having concluded there were “[m]ultilevel degenerative changes, most prominent at C3-4 where there is a severe spinal stenosis,” suggesting the possibility of arthritis as the cause of degenerative changes and stenosis. As noted,arthritis is included among chronic diseases eligible for presumptive service connection under 38 C.F.R. § 3.309 (a). However, the record offers no evidence of the manifestation of arthritis to a compensable degree within one year of separation from active service. Additionally, because it was never identified in service or directly after, and putting aside the lack of medical evidence of its treatment at that time, it would be otherwise impossible to establish continuity of symptomatology based on the identification of symptoms during, directly after or continuing for a longer period after active service. Consequently, the presumption of service connection for arthritis as a chronic disease, as associated with cervical-spine disorder, is not available to the Veteran. In carefully considering the Veteran’s October 2018 Board hearing testimony, as well as the October 2018 lay statement of R.M, who provided a detailed account of the Veteran’s in-service accident, the Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran and R.M. are competent to provide statements of symptoms which are observable to their senses and there is no reason to doubt their credibility. However, the lay evidence of the Veteran must in turn be weighed against other evidence, as all relevant evidence of varying kinds must be considered. Looking first to the October 2018 lay statement of R.M, who served with the Veteran, he recounts the accident while the Veteran was on duty in the motor pool, during which he was struck in the head when a brake pedal sprung suddenly back into place. R.M. reports the Veteran was disoriented and his legs “went limp.” He adds that the Veteran recovered quickly and continued to work. In looking to the Veteran’s testimony, the Board first notes that, after the motor-pool accident, the Veteran states he went to the Army base hospital in Frankfurt, West Germany, where he underwent a CAT scan of his head; however, he adds that “[t]he damage was the vertebrae—the… vertebrae in my neck.” Documentation of that examination is not in the record. The Board has noted the observation of the Veteran’s representative that STRs often do not show treatment records compiled at base medical facility unless the treatment provider goes to the base to retrieve the records. However, in his testimony, the Veteran himself stated the examiners in Frankfurt did not discuss a neck-vertebrae injury, “[t]hey just worried about my brain and the skull being cracked or something.” Concerning current treatment, the Veteran testified that he had been informed repeatedly that “there was nothing wrong with me, I just have a bit of arthritis” and his physician at Santa Barbara VA also repeatedly told him “there’s nothing –they can’t find anything wrong. You just have a little bit of arthritis.” The Veteran further testified that he was told in July 2016 by his private treatment physician, presumably at Alta Orthopedics, that the pain “was caused by an old injury, they didn’t want to speculate as to what the old injury was. But it was an old injury that caused the arthritis to grow in those two vertebrae.” The July 2016 records were eventually submitted by the Veteran to VA. The Board has reviewed MRI reports of the brain and the cervical spine, dated July 12, 2016. However, although the Board has read and re-read these reports, it does not discern in them any reference to a previous or “old” injury. At this point, the Board notes again that the April 2015 VA examination findings did not include a diagnosis indicating arthritis, but stated only cervical sprain/strain and IVDS. Moreover, the April 2015 VA examiner noted that imaging studies had not been performed and therefore arthritis had not been documented. The section of the examination headed Diagnostic Testing specifically requires that a diagnosis of degenerative arthritis (osteoarthritis) or traumatic arthritis must be confirmed by imaging studies. The Board is well aware that the Veteran has submitted hundreds of pages of imaging studies in October 2018. However, this is to no purpose. The studies contain no commentary or explanation by a medical professional. The Board does not have either the medical training or knowledge to interpret these studies. It is not permitted to intrude its own medical judgments into adjudicatory proceedings and declare what it “thinks” such evidence may signify. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As it is, it was not until the September 2020 VA examination that arthritis was identified in imaging studies by the medical professional conducting the examination. In first noting that the record gives no indication that the Veteran’s private treatment provider at Alta Orthopedics in July 2016 reviewed and considered the Veteran’s STRs or his post-service record at VA or that she provided any rationale or explanation for what amounts to an opinion that the Veteran’s neck pain is directly related to an old injury, the Board has assigned greater probative value to the findings and opinions of the September 2020 VA examiner. The Board is aware that its own May 2020 Remand noted the deficiencies of the April 2015 opinions and remanded accordingly; however, the findings of that examination are consistent overall with the later September 2020 examination. Moreover, as discussed at length above, the findings were made by medical professionals after in-person examinations of the Veteran, their observations show a thorough review of the Veteran’s medical history and the opinions of the September 2020 VA examiner exhibit sound clinical conclusions. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). The summary of the record shows the STRs contain the August 1977 examination of the Veteran’s head injury after the motor-pool accident. However, the STRs do not show reports, complaints, treatment, or diagnoses of a cervical-spine disorder related to the motor pool accident and, according to the September 2020 VA examiner, the post-service treatment record does not provide a treatment history until April 2013, approximately 36 years after the event. Although told by his private treatment provider his neck pain is related to a previous injury, treatment providers at VA, after an examination revealed no findings of a neck-vertebrae disorder, assessed the Veteran’s neck pain as “just a little arthritis,” implying a predictable development, usually associated with aging. As a factual determination, the record overall indicates an injury which resolved prior to separation from active service. Significantly, both the Veteran in his testimony and R.M. in his statement say that, although briefly disoriented after the motor pool accident, the Veteran almost immediately returned to work. Additionally, nothing the medical evidence of record supports a secondary causal relation of that injury to service-connected lumbar-spine disorder. For these reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claim for service connection, direct, secondary or presumptive.   The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.