Citation Nr: 21015859 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-39 298 DATE: March 18, 2021 ORDER Service connection for a cervical neck disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s current cervical neck disability is due to a disease or injury in service or secondary to any service-connected disability. CONCLUSION OF LAW The criteria for service connection for a cervical neck disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.102, 3.303(b), 3.307, 3.309(a), 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from March 1988 to April 1989. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a travel Board hearing in March 2020 in Portland, Oregon. A transcript of that hearing is of record. This matter was subsequently remanded by the Board in May 2020 for additional development to include an addendum opinion. It has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). An addendum opinion was obtained that addressed the Veteran’s contentions. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). Service connection for certain diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Arthritis is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Entitlement to service connection for a cervical neck disability, to include as secondary to service-connected disabilities. The Veteran asserts entitlement to service connection for a cervical neck disability, to include as secondary to service-connected disabilities. Specifically, he contends his disability is due to service (hiking and running while carrying gear weighing approximately 75 pounds) or that his altered gait due to service-connected disabilities damaged his spine. The Board concludes that, while the Veteran has cervical neck disabilities during the period on appeal, the preponderance of the evidence is against finding they are related to service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), 3.309(a). He has current diagnoses of cervical strain, degenerative arthritis of the spine, and intervertebral disc syndrome, to include as reported at the May 2017 VA examination. As such, the first element of service connection is met. His service treatment records show cervical muscle spasms in March 1988. He testified at a Board hearing in March 2020. He reasserted that he believed that his disability was due to in-service hiking and helping/carrying other service members on the hike. Alternatively, he believes his disabilities are from falls and/or an altered gait due to his service-connected disabilities. In this regard, the Board acknowledges the Veteran’s belief that his disability is due to repetitive hiking and helping to carry others during service, an altered gait due to service-connected disabilities, or falls from his service-connected disabilities, but he is not competent to opine on the nexus as it requires specialized knowledge of the orthopedic system. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such evidence regarding the etiology of his current neck disability is not competent, the Board does not find that it is relevant or probative of the matter on appeal. He underwent an examination in August 2014. A negative nexus was provided. In support, the examiner stated that he did not find a nexus between service and neck complaints that started a decade later. Additionally, the Veteran’s multiple falls are not consistent with trauma on the Veteran’s x-rays but degenerative breakdown overtime. Therefore, his disability was not at least as likely as not secondary to his service-connected achilles disability. A negative opinion was provided in May 2017. The examiner stated that disability was not due to service as the Veteran had not established a chronic neck condition since service in 1989 as he did not seek treatment until 2013. The Board previously found that these opinions insufficiently addressed the Veteran’s contentions and to have some probative value. An opinion was obtained in July 2020. The examiner determined that the Veteran’s disabilities were not due to service, to include repetitive hiking. The examiner explained that the Veteran’s service treatment records documented a cervical injury, but that it was muscular in nature and it had resolved. His exit examination was negative for neck related complaints. Additionally, the examiner reported that a review of medical records showed that in 2004, the Veteran reported neck pain that began 5 years prior. The Veteran’s neck pain therefore appeared to begin around 1999 – ten years after exiting service. It was reported that the Veteran had an injury around that time frame. In support, the Veteran’s medical records showed that he injured his neck while turning his head in the late 1990s or early 2000s. Alternatively, the Veteran had reported in his medical records that he injured his neck approximately in 1995 when he turned his head at dinner. In 2003, he reported neck pain that began approximately four years after service. Additionally, the 2020 examiner found that his disabilities were not due to his service-connected disabilities. The examiner explained that his disabilities were not due to his achilles tendon, but rather his symptoms began when he had a turning episode of his neck in 1999/2000. The examiner further reported that medical records in 2003 stated that his cervical neck pain began two years prior and the Veteran did not mention a compensatory mechanism or altered gait. The examiner determined that on review of the medical evidence, the Veteran’s cervical neck complaints and history, that he likely had degenerative changes that began between 1995 and 1999 even though mild to moderate degenerative changes were not diagnosed until the 2000s. Furthermore, the examiner found the Veteran’s rotational neck turning, which occurred after service, started his current disabilities. He explained that the rotation of the neck is not a compensatory mechanism from achilles tendon. Additionally, medical literature supports that the Veteran’s current disabilities are due to rotational turning and not from compensation from his achilles tendon. The examiner also explained that the Veteran falling from his achilles tendon were not consistent with his symptoms because a head turning mechanism is not related to falls. The Board finds this 2020 opinion to have great probative value. The Board acknowledges that the examiner does not specifically word his opinion in “proximately due to” terms. However, he explains that the Veteran’s current disabilities are not due to a compensatory mechanism from the Veteran’s service-connected achilles tendon, nor from falls, and that the disabilities are not aggravated by his service-connected disabilities or falls. Rather, the examiner clearly finds that the Veteran’s disabilities, which likely began in the mid-1990s, were due to head turning/rotational injuries as reported in the Veteran’s medical records. The Veteran’s private medical records from 2016 show a 30 year history of cervical neck pain. However, this medical history is not consistent with the Veteran’s VA medical records showing neck pain beginning in the mid-1990s. The Board places more weight on the longer period of history from the decades of VA treatment over the statement in the private record that did not discuss origins or refer to the Veteran’s duties during his active service. After review of the competent and probative evidence, the Board finds that the preponderance of the evidence is against service connection for a cervical neck disability. The competent and highly probative 2020 medical opinion provides an alternative cause (neck turning incidents). The 2020 opinion also explained why his cervical neck disability was not proximately due or aggravated by his service-connected disabilities, to include an altered gait and falling. It explained that the Veteran likely had degenerative joint disease in the mid-1990s, several years after his 1989 discharge from service. Also, the record lacks a positive nexus opinion for service connection. 38 U.S.C. § 5107(a). The Board acknowledges the Veteran’s private medical treatment records show neck pain for approximately the past 30 years in 2016. However, this statement is outweighed by other evidence of record, such as contemporaneous medical records that show the Veteran’s neck pain began at the earliest in the mid-1990s. Additionally, the Board recognizes the Veteran’s belief that his current cervical neck disabilities are related to service or secondary to his service-connected disabilities, but he is not competent to provide a nexus statement in a matter involving a disease process like arthritis and to interpret imaging studies. As such, statements in this regard lack weight as they are not competent. The evidence also does not tend to show that a neck disability manifested within one year after exiting service and continued. Rather, arthritis was diagnosed in the 2000s and the 2020 examiner opined that it likely began in the mid-1990s – years after discharge in 1989. (Continued on the next page)   Therefore, the preponderance of the evidence is against a finding that the Veteran’s disability is related to his service or secondary to his service-connected disabilities. The available competent and probative evidence weighs against a nexus to service. As such, reasonable doubt does not arise, and the appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Morales, 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.