Citation Nr: 21021164 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 14-34 399 DATE: April 12, 2021 ORDER Service connection for cervical spine disability is denied. FINDING OF FACT The Veteran’s cervical spine disability was not shown in service, was not manifested within a year from service or for many years thereafter; and has not been found to be etiologically related to service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1956 to June 1976. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a February 2013 rating decision issued by the Agency of Original Jurisdiction (AOJ). In June 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. The matter was previously remanded by the Board in September 2018 and most recently in October 2020 for additional evidentiary development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, 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 be established 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(a). Establishing service connection on a secondary basis requires evidence showing that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Entitlement to service connection for cervical spine disability. The Veteran contends that his cervical spine disability is related to an injury of his back while in service, or otherwise, secondary to his now service-connected lumbar spine disability. He filed a claim in December 2011 which was denied by rating action of February 2013. While the record shows a current diagnosed cervical spine disability, the Board concludes that the preponderance of the evidence weighs against finding that the Veteran’s diagnosis began during service or is otherwise related to an in-service injury, event, or disease, or secondary to a service-connected disability. Meaning, there is no probative evidence to show a medical link between the current claimed disabilities to a service-connected disability. In this regard and to specifically address this complex medical question, the Board remanded the matter in October 2020 to obtain adequate medical opinions. In compliance with the Board’s remand, the evidence shows VA medical opinions and addendum opinions were obtained in October 2020 and January 2021, which, taken in total, constitutes the most probative medical evidence of record. As for direct service connection, the record shows an October 2020 VA contract opinion where the physician found the claimed cervical spine disability less likely as not related to an in-service injury, event, or disease. In support of this conclusion, the physician indicated that “report of medical history and exam on 4/18/1974 and 1/12/1976 did not reveal history or findings for ongoing acute or chronic treatment of cervical spine condition.” The physician added that medical record review also “did not reveal continuous ongoing medical treatment or aggravation of acute or chronic cervical spine conditions during time of discharge from active military service to present day.” The physician specifically acknowledged review of January 2013 x-rays, which he noted was 37 years after service. The images revealed spondylosis and disc degeneration in the lumbar spine, which the physician also found had “no changes from [x-rays taken in December] 2009.” See VA contract medical opinion of October 2020. The same VA contract physician rendered an opinion addressing secondary service connection opining that, “It is less likely than not that the Veteran’s cervical spine disability is proximately due to or the result of another service-connected posttraumatic stress disorder, left shoulder recurrent dislocation, lumbar spine degenerative arthritis with degenerative disc disease, bilateral hearing loss and tinnitus.” In the rationale, the physician explained that cervical spine strain is secondary to joint aging and chronic overuse of the cervical spine over duration of many years and is independent from the veteran’s active military career and other musculoskeletal conditions. The physician noted review of January 2013 x-rays taken of the cervical spine but indicated “cervical spine scoliosis, degenerative joint disease and mild to moderate neuroforaminal narrow bilaterally at C5-C6 is secondary to aging and chronic overuse of the cervical spine over duration of many years and is independent from the veteran’s active military career.” Id. The October 2020 VA contract physician also addressed secondary aggravation finding “It is less likely than not that the Veteran’s cervical spine disability was aggravated beyond the natural progression of the disease by another service-connected post that COPD and bronchial issues are aggravated posttraumatic stress disorder, left shoulder recurrent dislocation, lumbar spine degenerative arthritis with degenerative disc disease, bilateral hearing loss and tinnitus.” A similar rationale was provided for this opinion. Id. In January 2021, the AOJ obtained addendum opinions from the same physician that provided the October 2020 VA contract opinions where the physician specifically acknowledged review of lay evidence of record including the June 2018 hearing testimony of the Veteran and his wife. The physician stated review of lay statements “provided by the Veteran and his wife concerning his neck and back condition including subjective testimony of pain in the left side of the neck, a right head tilt, and decreased range of motion of the neck. Medical records review was negative for consistent and current objective clinical evidence for diagnosis and treatment of neck pain and condition to validate [veteran’s] subjective testimony of having neck pain incurred from active military service. The evidence of record does not support the claimed neck condition.” Based on consideration of the above evidence, the physician reiterated his opinion, “The neck condition was less likely than not incurred during military service and was less likely than not proximately due to or aggravated by a service-connected disability.” See Addendum opinion dated January 2021. After weighing all the evidence of record, the Board observes that the objective medical evidence stands uncontradicted by any other evidence found in the record and is significantly probative in determining whether the Veteran has substantiated the claim for service connection. In so finding, the Board assigns significant probative value to the collective October 2020 and January 2021 medical opinions. The Board observes that the VA physician’s October 2020 and January 2021 medical opinions are based on a comprehensive review of the Veteran’s claims file, consideration of lay evidence of record, cite supporting medical literature, and provide sufficient rationale to support the examiner’s conclusions. The opinions provide substantial reasoning and explanation as to why the Veteran’s claimed cervical spine disabilities are not related to service or aggravated by his service-connected disability. The opinions are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appear to support the Veteran’s position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Accordingly, the Board finds great probative value in the collective VA medical opinions of October 2020 and January 2021. The Board has also considered whether the presumption of service connection has been established under 38 C.F.R. § 3.303(b). Although arthritis may be considered a chronic disease for VA purposes, arthritis was not clinically shown to a compensable degree within one year following the Veteran’s 1976 discharge from service. 38 C.F.R. § 3.307(a)(3). Here, arthritis of the lumbosacral spine was noted in X-rays taken in January 2013, approximately 37 years after service. Medical records within one year of following service do not reflect any problems related to arthritis or affecting his bones or joints. There is also no persuasive credible lay evidence that arthritis manifested to a compensable degree within one year following the Veteran’s discharge from service. Accordingly, service connection on a presumptive basis has not been shown and therefore, not warranted. 38 C.F.R. §§ 3.303(b), 3.307. Further, the Board notes that the Veteran, as a layperson, is not competent to independently opine as to the specific etiology or render a medical nexus of a disability to a service-connected disability, as such requires medical expertise and the ability to interpret diagnostic medical testing, including radiographic studies. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Veteran’s assertions do not constitute competent medical evidence and the Board assigns more weight to the VA opinions provided by a medical professional. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for cervical spine disability. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.