Citation Nr: 21013646 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-43 781 DATE: March 10, 2021 ORDER Entitlement to service connection for a cervical spine disability, to include as secondary to lumbago, is denied. FINDING OF FACT The competent and credible evidence does not demonstrate that the Veteran’s currently diagnosed cervical spine degenerative disc disease had its onset during active duty service, manifested within one year of separation, was caused or aggravated by a service-connected disability, or was otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability, to include as secondary to lumbago, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1990 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Jurisdiction of the case is now before the RO in Salt Lake City, Utah. In September 2018 and May 2020, the Board remanded the issue on appeal for additional development. As the actions specified in the remands have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. Entitlement to service connection for a cervical spine disability, to include as secondary to lumbago The Veteran asserts that her current cervical spine disability developed due to her lumbago. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The question before the Board is whether the Veteran’s cervical spine disability is etiologically related to her active duty service, or a service-connected disability. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for a cervical spine disability is warranted. The Veteran has a current diagnosis for cervical spine degenerative disc disease. See January 2014 VA examination. The Board recognizes that there are conflicting medical opinions regarding whether the Veteran had cervical spine arthritis in 2014 or whether the clinical evidence did not support a diagnosis for arthritis until 2019. At a January 2014 VA examination, the VA examiner diagnosed the Veteran with cervical spine degenerative disc disease and found that the radiological evidence documented arthritis. However, a July 2020 VA examiner found that the Veteran’s medical records did not substantiate a finding of cervical spine arthritis until 2019. Despite the contradictory findings, for the purpose of adjudicating the Veteran’s claim, and viewing the evidence in the light most favorable to the Veteran, the Board will assume that the Veteran’s diagnosis for degenerative disc disease qualifies as arthritis. First, the Board notes that arthritis is a chronic disease under 38 C.F.R. 3.309(a). As discussed above, the Board, in this decision, has considered degenerative disc disease as a form of arthritis. The Board has considered whether the Veteran is entitled to presumptive service connection under 38 C.F.R. § 3.307(a)(3). However, the earliest diagnosis for the Veteran’s arthritis was in July 2012, more than 18 years after the Veteran’s separation from service. See July 2012 private x-ray report. According to the Veteran’s service treatment records, there were no documented complaints, treatment, or diagnosis for any neck problems. At her April 1994 separation examination, the Veteran’s spine clinical evaluation and head, face, neck, and scalp clinical evaluation were normal. Her associated report of medical history did not identify any neck symptoms. There is no clinical evidence that the Veteran’s arthritis existed prior to 2012. Thus, the Board finds that the evidence does not show that her arthritis manifested within one year of separation from service; nor does it show that she had continuous symptoms of arthritis following service. Accordingly, the Veteran’s arthritis, as a chronic disease, is not entitled to presumptive service connection. Next, the Board considered whether the Veteran was entitled to service connection for a cervical spine disability on a secondary basis. However, the Veteran has not been service-connected for lumbago, or any other low back disability. The Veteran does not assert, and the evidence does not show, that the Veteran’s cervical spine disability was caused or aggravated by a service-connected disability. Therefore, the Veteran is also not entitled to service connection for a cervical spine disability on a secondary basis. Finally, the Board must still consider whether the Veteran’s cervical spine disability is directly related to her active duty service. On that basis, the Board finds that the July 2019 VA examiner’s opinion provides the most probative evidence as to the etiology of the Veteran’s cervical spine disability. After performing an objective evaluation, interviewing the Veteran, and reviewing the Veteran’s claims file, the July 2019 VA examiner opined that the Veteran’s cervical spine degenerative disc disease was less likely than not related to service. In making that determination, the July 2019 VA examiner found that the Veteran’s service medical records showed no neck condition in service, that there was no evidence of neck pain following a year after separation, and that there was an absence of any other supporting evidence or documentation of a chronic and continuous pattern of neck problems existing from service to the present. Citing medical literature, the July 2019 VA examiner explained how degenerative disc disease was a general term used to describe aging changes and that its risk factors included age, joint injury, obesity, and genetics. Overall, the July 2019 VA examiner concluded that given the lack of any supportive evidence, the Veteran’s cervical spine degenerative disc disease was not related to any specific issues in service, did not have its onset in service or within one year following separation, or was causally related to service. Based on the above, the Board finds that service connection for a cervical spine disability on a direct basis is also not warranted. The only evidence in support of the Veteran’s contentions is her own lay assertions. Lay evidence may be competent to establish medical etiology or nexus. However, given that the Veteran has not demonstrated that she has specialized medical training or expertise, the Board must find that she is not competent to provide a medical opinion as to the etiology of her cervical spine degenerative disc disease. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, her lay assertions have little probative value. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s claim for service connection for a cervical spine disability, to include as secondary to lumbago. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.