Citation Nr: 21013894 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-06 634 DATE: March 10, 2021 ORDER Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar spine disability is denied. FINDING OF FACT The preponderance of the evidence is against a finding that any current cervical spine disability began during active service, is related to an in-service injury or disease, or is proximately due to his service-connected lumbar spine disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1975 to November 1978. This matter was initially before the Board in October 2019, where it was remanded for additional development. The Board concluded that the Veteran should be afforded a VA examination to determine the nature and etiology of his neck disability. The matter returned to the Board in August 2020, where it was remanded again. Specifically, the Board determined that the Veteran should be afforded a VA examination that provides an opinion for his cervical spine disability based on secondary service connection. Such development has been completed and the matter is once again before the Board for further appellate review. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar spine disability. Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted, on a secondary basis, for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, if a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  The Veteran appeals the denial of service connection for a cervical spine disability, to include as secondary to service-connected lumbar spine disability. Turning to the evidence, the Veteran’s service treatment records (STR) do not reflect that he reported complaints of neck pain or sought treatment for neck pain. Upon examination from discharge, his neck and upper extremities were deemed clinically normal. See July 1978 Report of Examination. The Veteran was afforded a VA examination in January 2020. The examiner opined that it is less than likely than not that his cervical spine disability was caused by service. The examiner reasoned that the Veteran’s earliest complaints of neck pain was in 2014, which is 36 years after active service. Citing a 2020 article from the Mayo Clinic, the examiner stated “[o]steoarthritis is a common form of arthritis that is associated with the breakdown of cartilage r/t the normal wear and tear associated with the aging process.” The Veteran was afforded a second examination in October 2020. After review of the claims file, including the September 2019 back exam which referred to the Veteran’s neck stiffness as part of the symptoms of the Veteran’s lumbar spine disability, the examiner opined that it is less than likely than not that his cervical spine disability was caused by service. The examiner reasoned that the earliest complaints of neck pain were 36 years after service. He concluded that “[d]ue to the time from service and the Veteran’s obesity, the diagnosed arthritis is not related to his service.” Regarding an opinion for secondary service connection, the examiner opined that his cervical spine disability is less likely than not caused or aggravated by the Veteran’s service connected lumbar spine condition. The examiner reasoned that although joints are congruous through the thoracic vertebrae, there is no anatomical, pathological, neuronal, or hormonal correlation of causation between his lumbar spine and cervical spine “because the joints function independently.” Additionally, the examiner concluded that it is more likely than not that his cervical spine disability is related to age. Upon review of the Veteran’s post-service treatment records, the Veteran first reported complaints of neck pain in April 2014, over 30 years after his separation from service. Prior to that, there was no evidence of manifestations or diagnosis of a neck disability. For the reasons detailed above, the probative evidence of record is against the claim, and service connection for a cervical spine disability on a direct basis, presumptive basis or as secondary to his service-connected lumbar spine disability is not warranted. The medical evidence indicates that there is no causal basis between the Veteran's cervical spine and lumbar spine disability nor is there a causal basis for causing an additional functional impairment. In rendering this decision, the Board has considered the Veteran’s lay statements and notes that he is competent to report his symptoms and the circumstances surrounding his cervical spine condition. Although lay persons are competent to provide opinions on observable lay symptoms or conditions, the specific issue in this case, the etiology of cervical spine arthritis falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Overall, the Board finds that the opinions of the VA examiners are probative and persuasive as to the etiology of the Veteran's disability. The January 2020 and October 2020 expert medical opinions were prepared by a skilled, neutral medical professional after review of the claims file and previous examinations of the Veteran. Furthermore, it is supported by a complete rationale. The Veteran has not disputed the expert medical opinion or provided a favorable medical opinion to weigh in this matter. In addition, the Board finds that service connection on the basis of continuity of symptomatology alone is not warranted under 38 C.F.R. § 3.303(b) as the most credible medical evidence establishes that chronicity first began many years after service. Similarly, there is also no credible lay or medical evidence establishing the onset of arthritis within one year of service discharge of either period of service. As such, service connection on a presumptive basis under 38 C.F.R. § 3.309(a) is also not warranted. Accordingly, the preponderance of the evidence is against the claims, and entitlement to service connection for a cervical spine disorder is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.