Citation Nr: 21016164 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 18-54 323 DATE: March 22, 2021 ORDER Service connection for a cervical spine disability is denied. FINDING OF FACT The Veteran’s cervical spine disability did not onset due to injury sustained during a period of service; nor was the cervical spine disability caused or aggravated by a service-connected disability. Degenerative arthritis of the cervical spine was not manifest during service or within one year of separation. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to August 1996. This matter came before the Board of Veteran’s Appeals (Board) on appeal from a May 2015 rating decision issued by the RO. In June 2020, the Board remanded the claim for further development of the record. The Board instructed the RO to obtain a VA medical opinion as to the etiology of the claimed cervical spine disability. A VA medical opinion regarding the etiology of the claimed cervical spine disability was obtained in July 2020. Thus, the requested development has been completed and the claim has been returned to the Board for appellate disposition. 1. Entitlement to service connection for a cervical spine disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of 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); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, arthritis is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). A June 1985 service treatment record documents the Veteran’s complaint of pain in his upper back between his shoulder blades. He reported that he fell down a flight of stairs and hit the back of his head. He wore a “C” collar and had tenderness over C7. However, he had full motion and no neurological deficiencies. X-ray findings were normal. The assessment was neck contusion. The April 1996 service retirement examination documents that clinical evaluation of the spine was abnormal as mild curvature of the thoracic spine; 2 scars on the cervical spine; and, herniated discs L5-S1 laminectomy was documented. After service, the June 1997 Report of VA General Medical examination documents assessment, in pertinent part, of recurrent upper back pain and chronic ongoing lower back pain with herniated nucleus pulposus of L5-S1, status post a laminectomy and discectomy. The Veteran’s lumbar disorder is service connected. A September 2012 treatment record reflects the Veteran’s complaint of back pain from an in-service motor vehicle accident (MVA) with radiation through his bilateral lower extremities and shooting pain that radiated upward causing headaches. The December 2012 x-ray findings showed mild multilevel degenerative changes of the cervical spine. The corresponding December 2012 treatment record documents that the Veteran had normal movement of all extremities. He had no muscle tenderness. The assessment, in pertinent part, was cervicalgia. A May 2013 treatment record documents the Veteran’s complain of chronic back pain, mostly in the neck. On examination, the assessment, in pertinent part, was cervicalgia. February 2013 MRI findings showed uncovertebral joint hypertrophy causing canal or neural foraminal stenosis, worse at C3-4 and C4-5. June 2015 cervical spine CT findings showed mild central canal stenosis C3-C5 and upper cervical mild to moderate multilevel foraminal stenosis without definitive foraminal nerve root impingement. An August 2015 surgical report documents that the Veteran underwent C3-4 and C4-5 anterior cervical fusion An October 2015 Report of private evaluation documents the Veteran’s complaint of neck pain (posterior cervical pain) that radiated into his shoulders and proximal upper extremities. The Veteran reported that he underwent C3-4 cervical fusion in August 2015. On examination the assessment was cervical spondylosis without myelopathy. The January 2016 Report of private evaluation reflects that the Veteran’s cervical spine disability had substantially improved from its preoperative state. He complained of some neck pain and intermittent spasm. On examination the assessment was cervical spondylosis without myelopathy. The September 2018 Report of VA neck (cervical spine) conditions examination documents diagnosis of degenerative arthritis of the cervical spine. The Veteran asserted that his cervical spine disability onset due to event or incident of service, namely carrying a lot of weight during service; crashing into a ditch while driving his tactical vehicle and sustaining impact type injury; and, being struck under the chin by a machine gun. He denied sustaining any traumatic injuries to his neck after service. The July 2020 VA medical opinion documents the physician’s review of the evidence of record. The physician concluded that the Veteran had a documented history of neck contusion during service in 1985; however, no residuals were noted for the remainder of service or within a year of discharge. The physician explained that it was not until 2012 that the Veteran was diagnosed with and received treatment for his current cervical spine disability (arthritis). The physician determined there was no nexus between injury in 1985 and disability diagnosed in 2012. The physician explained that ostearthritis was clearly related to aging and opined that the Veteran’s current cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In addition, the physician noted that there was a considerable amount of evidence of treatment for the Veteran’s service-connected lumbar spine disability. However, the physician explained that osteoarthritis was a global, multi-site phenomenon affecting all cartilaginous joints of the body, independently from one another. The physician determined that the Veteran’s cervical spine degenerative arthritis was not caused by his service-connected lumbar spine disability. The physician explained there was no evidence in research that suggested a back condition could cause or aggravate cervical spine degenerative osteoarthritis or that osteoarthritis in one joint could cause or aggravate osteoarthritis in any other joint. Finally, the physician explained that spine osteoarthritis (spondylosis) was a general term that applied to nonspecific, degenerative, age-related wear and tear of cartilage affecting the spinal discs. The physician reported it was a disease with a clear and specific etiology, pathology and diagnosis. Though the Veteran has a cervical spine disability, the preponderance of the evidence is against a finding of a linkage between the onset of the current cervical spine disability and a period of service. Rather, the most probative evidence shows that the Veteran’s current cervical spine disability (degenerative arthritis) was an age related disability that had onset many years after his discharge from service and was not due to due to disease or injury incurred during his period of service (See July 2020 VA medical opinion). See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). In addition, the Veteran’s cervical spine degenerative arthritis was not caused by his service-connected lumbar spine disability. The physician explained there was no evidence in research that suggested a back condition could cause or aggravate cervical spine degenerative osteoarthritis or that osteoarthritis in one joint could cause or aggravate osteoarthritis in any other joint (See July 2020 VA medical opinion). These conclusions are probative as they are based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examination. There is also no competent evidence or opinion that suggests that there exists a medical relationship, or nexus, between the current cervical spine degenerative arthritis and a period of the Veteran’s service or a service-connected disability. Additionally, there is no evidence of arthritis in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1339. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. In sum, characteristic manifestations sufficient to identify the disease (arthritis) entity were not noted. Further, there is no demonstration of continuity of symptomatology or evidence of arthritis within one year of separation from service. Thus, service connection cannot be awarded on a presumptive basis. 38 U.S.C. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303 (b), 3.307, 3.309. As cervical spine degenerative arthritis is a disease with a clear and specific etiology, pathology and diagnosis, service connection cannot be awarded pursuant to the provisions outlined in 38 C.F.R. § 3.317. The Veteran is not competent to link his cervical spine disability to service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran’s death). The Veteran is competent to state factual occurrences during service. However, he is a lay person and is not competent to establish that his current degenerative arthritis of the cervical spine onset as a result of these factual occurrences. The Veteran is not competent to offer opinion as to etiology of any current cervical spine disability. The question regarding the etiology of such disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. (Continued on the next page)   The claim of entitlement to service connection for a cervical spine disability must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.