Citation Nr: 21015425 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-26 042 DATE: March 17, 2021 ORDER Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected left shoulder disability with arthritis, status-post shoulder separation (left shoulder disability) is denied. FINDING OF FACT The Veteran’s cervical spine disorder is not caused or aggravated by service-connected left shoulder disability and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a cervical spine disorder due to service or service-connected left shoulder disability are not met. 38 U.S.C. §§ 1110, 1112, 1131, 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 honorably on active duty from December 1969 to November 1971. The Veteran died in November 2020. Appellant is the surviving spouse and substitute claimant in this appeal. See 38 U.S.C. § 5121A. As such, she brings the current claim without the restrictions imposed by 38 U.S.C. § 5121. Appellant is a properly substituted claimant and is prosecuting this claim as such and not for accrued benefits purposes under older, less favorable laws. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter returns to the Board of Veterans’ Appeals (Board) following a third Board remand of an appeal of an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected left shoulder disability with arthritis, status-post shoulder separation (left shoulder disability) The Veteran seeks entitlement to service connection for a cervical spine disorder. To establish service connection, the evidence must generally show (1) a present disability, (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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).  In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Service connection on a secondary basis is warranted when it is shown that a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. This includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 3.310(a), when aggravation of a Veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See Allen, 7 Vet. App. at 448. The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) has noted that conditions may wax and wane in severity, and that a medically ascertainable incremental increase in disability, may meet the definition of ”disability” – ”the impairment of earning capacity due to disease, injury, or defect.” Ward v. Wilkie, 31 Vet. App. 233, 239-40 (2019). The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth at 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. 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 Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran’s service treatment records are silent for any complaints, treatment, or diagnoses of a neck injury/disability. Additionally, the Veteran’s separation exam was absent of any notations of a neck injury/condition. However, the Veteran’s service treatment records indicate that, while boxing, the Veteran fell on his outstretched arm causing his shoulder to dislocate, eventually leading to shoulder surgery. Prior to his death, the Veteran was service-connected for a left shoulder disability. Following active service, the Veteran’s treatment records note complaints/treatment for lower and upper back pain, including a diagnosis of a lower back strain following a work-related incident in July 1980. In 1992, the Veteran was diagnosed with degenerative changes to the lower back, and later complained of pain in the right side of his neck. Following the August 1992 complaint of neck pain, the Veteran provided inconsistent statements about the onset of his neck pain. In August 2008, the Veteran stated had experienced chronic neck pain for the last three years. In February 2010, he stated that he had experienced neck pain that radiated down his left shoulder for the last 10 years. And during the November 2008 VA examination, the Veteran stated that his neck pain began 5 years prior to the examination. Prior to the Veteran’s death, he was prescribed medication to manage his neck pain, as well as physical therapy. In connection with this claim, the Veteran was provided a VA examination in November 2008. During the examination, the Veteran stated he experienced neck pain that radiated down his arm and limited his range of motion, which began 5 years prior to the examination. Following the conclusion of the examination and review of a November 2008 cervical spine x-ray, the examiner determined that there was no evidence of a fracture or dislocation, no destructive lesion seen, and no abnormal periosteal reaction found in the Veteran’s neck. However, the examiner diagnosed the Veteran with multilevel cervical spine degenerative disc disease. In March 2009, the VA examiner provided an addendum opinion stating that the Veteran’s shoulder condition and neck condition were two separate entities with no correlation between one another. In May 2011, the Veteran submitted a lay statement further describing his in-service boxing and the injuries he sustained. The Veteran explained that he was knocked down by a more experienced boxer, and while getting back up in a daze he was punched again in the jaw causing him to fall and dislocate his shoulder. Additionally, the Veteran stated that when he completed his tour of duty, he started having muscle spasms in his neck and he would experience lock jaw whenever he yawned. And that presently his neck was in chronic pain and felt like it was going to break. Lastly, the Veteran claimed that his neck pain was related to the above in-service boxing event because the punches caused whiplash, which is confirmed by the October 2009 MRI examination. Following the April 2018 Board remand, the Veteran underwent a second VA examination in October 2019, where the examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination. During the examination, the Veteran stated that his neck pain was constant and severe, limited his ability to move his neck, radiated down his left arm, and had only increased as time has gone on. After review of the record, the examiner opined that service connection for degenerative changes of the cervical spine, to include as secondary to your service-connected left shoulder disability was not warranted. However, the examiner later indicated, by checking a box, that the claimed was at least as likely as not incurred in or caused by the claimed inservice injury, event, or illness, but provided a negative nexus rational. In the provided negative nexus rational, the examiner found the Veteran’s statements, in which the Veteran described his belief that the traumatic injuries he sustained while boxing caused his current neck condition, credible. However, the examiner could not establish a nexus between the Veteran’s service and his current cervical spine condition. The examiner stated that after review of the medical record the Veteran’s degenerative changes were not specific to any injury and occur often in the general population without any trauma, and there was no record of injury occurring during service and/or chronicity from the time of service to establish service connection. Following the May 2020 Board remand, the Veteran was provided a third VA examination in October 2020. Following review of the record, the examiner opined that a degenerative disease of the spine was considered a part of the natural aging process caused by normal wear and tear. And that the prevalence of cervical spine disease rises significantly after the age of 50 and increases dramatically with each decade. Additionally, the examiner determined that it was less likely than not that the Veteran’s cervical spine disease incurred in or is caused by the claimed in-service injury, event or illness because there were no in-service complaints/treatment, no evidence of care proximate to separation, and the first diagnosis of a neck condition occurred in 2008. The examiner noted the Veteran’s 1999 complaints of neck pain but stated that there is no x-ray imaging available to support a determination that the Veteran’s degenerative cervical spine changes began in 1999. Also, the examiner determined that the Veteran’s cervical spine disorder was less likely than not proximately due to, or the result of, or aggravated by the Veteran’s service-connected left shoulder disability. The examiner further opined that conditions of the shoulder, including the Veteran’s extensive left shoulder history, do not cause degenerative cervical spine disease, as established by medical knowledge and practice. And degenerative joint diseases do not transfer from one joint system to another, as the shoulder and cervical spine are considered separate anatomically. Lastly, the examiner stated there was no evidence of aggravation of the Veteran’s cervical spine disorder beyond its natural course, due to any cause, including the veteran’s diagnosed lumbar spine condition and service-connected left shoulder disability. The shoulder and lumbar spine are anatomically separate from the cervical spine and there was no anatomic or physiologic mechanism by which they could aggravate degenerative cervical spine conditions. On review of the record, the Board finds that the most probative evidence is the October 2020 VA opinion. The examiner considered the description of the Veteran’s symptoms and their onset in the context of the medical record and the lapse of time between service and the actual diagnosis of degenerative disc disease. The examiner accepted a history of boxing trauma, but also noted that the Veteran’s service treatment records were silent for any complaints, diagnosis, or treatment of any symptoms related to a neck disability. Also, the Veteran’s post service treatment records, proximate to separation, were silent for any complaints, diagnosis, or treatment related to a neck disability. The Board finds that the onset of neck symptoms many years after service relied on by the examiner is an accurate factual basis as determined by the Board below. The opinion of the VA examiner was rendered by a medical professional with the expertise to opine on the matter at issue in this case. The examiner addressed the Veteran’s contentions and based the opinions on a review of the claims folder to include consideration of the Veteran’s medical history, the nature of the current disabilities, and medical literature. The Board finds no factual inaccuracies. Rather, the examiner thoroughly considered the Veteran’s lay statements, treatment, and post-service diagnosis. Furthermore, the Board has reviewed the lay statements which are probative as to when the Veteran first experienced neck pain, but such symptoms in and of themselves alone do no establish the onset of a cervical spine disorder. Also, the Veteran was not shown to be competent himself to correlate such matters as establishing that his cervical spine disorder is related to his in-service boxing or has been caused or aggravated by his service-connected left shoulder disability. Additionally, the Veteran has provided significant inconsistent statements on when his chronic neck pain began which lowers the overall probative value of his recollections. See State v. Spadafore, 220 S.E.2d 655, 661 (W. Va. 1975) (observing that, when evaluating inconsistent or contradictory testimony, “[t]he fact that [a witness] has stated the matters differently on a previous occasion tends to demonstrate either a failure of memory, or a lack of integrity, and in either event it weakens and impairs the value of his testimony.”) In a May 2011 statement, the Veteran recalled experiencing neck spams and symptoms since service. This recollection is inconsistent with multiple prior statements August 2008, November 2008 and February 2010 wherein he reported the onset of neck pain many years after service which is most consistent with the first documented complaint of neck pain in 1992. The most credible recollection by the Veteran establishes the onset of neck pain, at its earliest, in the 1990s. Lastly, there is no competent evidence or opinion that the Veteran’s neck disability is related to an in-service incident or began in service, or evidence of degenerative changes within one year of service discharge. As such, the Board finds that service connection based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) or degenerative changes manifesting to a compensable degree within one year of service discharge under 38 C.F.R. § 3.309(a) is not warranted. For the reasons detailed above, the Board must find that the preponderance of the evidence is against the Veteran’s and Appellant’s claim for direct service connection for a cervical spine disorder. In making this decision, the Board notes that the Veteran is competent to report neck pain and the onset of such symptoms, which according to the Veteran, did not begin until several years after separation for active military service. Additionally, the Board finds that the VA examiner’s opinion far more probative and persuasive as to the etiology of the Veteran’s disabilities. As for the Veteran’s and Appellant’s claim for secondary service-connection, the Board focuses on the October 2020 VA examination report. There, the VA examiner opined that the shoulder and cervical spine are considered separate anatomically, degenerative joint diseases to not transfer from one joint to another, and that the medical literature does not support a left shoulder disability as a direct etiologic, causative, or aggravating factor for the development or permanent aggravation of a cervical spine disorder. This conclusion was expressed after the examiner had reviewed the Veteran’s claims file in detail. Additionally, the examiner determined that the Veteran’s cervical spine disorder is less likely than not proximately due to, or the result of, or aggravated by the Veteran’s service-connected left shoulder disability. See Allen, 7 Vet. App. 429. Lastly, the record does not contain any competent evidence or opinion that the Veteran’s cervical spine disorder is related to the Veteran’s service-connected left shoulder disability. In closing, the preponderance of the competent evidence, concerning etiology and aggravation, weighs against the Veteran’s and Appellant’s direct and secondary service-connection claims for the Veteran’s cervical spine disorder. As the evidence is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107; Gilbert, 1 Vet. App at 53. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.