Citation Nr: 21022757 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-01 471 DATE: April 19, 2021 ORDER Service connection for cervical spine disability (claimed as neck pain) is denied. FINDING OF FACT The Veteran’s cervical spine disability was not shown as chronic in service, nor was cervical spine arthritis noted within one year from service discharge, and the disability is not otherwise etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1976 until his honorable retirement in June 1998. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 decision by the St. Louis, Missouri, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for cervical pain (diagnosed as cervical strain). This case was previously before the Board in July 2014. The Board remanded the case to afford the Veteran a Board hearing. In March 2015, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). In September 2015, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to make reasonable attempts to obtain outstanding VA medical records and any additional medical records identified by the Veteran. Thereafter, the Board directed the RO to obtain a VA medical examination and opinion addressing the Veteran’s cervical spine disability. The RO accomplished the Board’s directives, associating with the Veteran’s claims file outstanding VA medical records, documenting attempts made to obtain identified private medical records, and obtaining a VA examination and medical opinion. Following the case’s return to the Board, the Board again remanded the case in March 2018 for further development. Specifically, the Board directed the RO to obtain medical records from Barksdale Air Force Base (AFB) Medical Group and to document attempts that were made. The Board notes that in September 2018, the RO sent a request to Barksdale AFB requesting the Veteran’s medical records. His claim file shows that on October 24, 2018, multiple medical records from Barksdale AFB were associated with his file. Yet, the RO apparently overlooked the medical records and continued to make requests for these medical records. After multiple requests, the RO sent the Veteran a letter informing him that it was unable to obtain any medical records from Barksdale AFB and any further attempts were futile. The Board finds no prejudice occurred to the Veteran due to this mistake because within the RO’s September 2020 supplemental statement of the case the RO explicitly acknowledged the Barksdale AFB medical records as part of the evidence that was considered in its adjudication. The Board also directed the RO to obtain a new VA medical examination and opinion from an orthopedist to address the nature and etiology of the Veteran’s cervical spine disability, which the RO accomplished. The case now returns to the Board. In a February 2021 correspondence, the Board informed the Veteran that the VLJ who heard his case was no longer employed by the Board. The Veteran was offered the opportunity to request another hearing within thirty days of from the date of the correspondence. The Veteran did not respond to that letter within thirty days as requested. By not responding, he declined a new hearing. The Board will adjudicate his appeal based on the evidence of record. See 38 U.S.C. § 7107(c); 38 C.F.R. §§ 19.3(b), 20.707. Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 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). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. In addition, service connection may be established on a presumptive basis for certain “chronic diseases”—to include arthritis—that manifest in service or within the presumptive period following separation from service (such that their existence in service is presumed). 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term “chronic disease” refers to those diseases in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a). “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.’ ” 38 C.F.R. § 3.303(b). Where a chronic disease is shown in service so as to permit a finding of service connection, 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). In cases where a chronic disease is “shown as such in service,” the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought.” Walker, 708 F.3d at 1336. In other words, “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.” Id. Where the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Id. Continuity of symptomatology is established if a claimant demonstrates that a condition was “noted” during service or during the presumptive period, there is evidence of post-service continuity of the same symptoms, and there is evidence of a nexus between the present disability and those symptoms. 38 C.F.R. § 3.303(b). A condition is “noted” where evidence is “indicative of but not dispositive of a chronic disease.” Walker, 708 F.3d at 1336. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed. Id. at 1339. Analysis First element: A current disability As to the first element of service connection, a current disability, the Veteran was diagnosed by a VA medical examiner in April 2010 and a VA-contracted medical examiner, an orthopedist, in September 2020 with degenerative disc disease (arthritis) of the cervical spine. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof As to the second element of service connection, an in-service event, injury, or illness that occurred while on active duty, the Veteran has denied in-service trauma related to his cervical spine. Rather, he asserts an onset of neck pain in service due to carrying/wearing a backpack while on active duty. The Veteran’s military service treatment records (STRs) do indicate complaints and treatment for neck issues. A July 1981 STR documented “tender cervical muscles,” and a diagnosis of “muscle contraction headache.” A September 1986 STR documented “some degenerative changes in c-spine” based on X-ray results. An April 1988 STR documented a complaint of neck pain, with a diagnosis of left post-cervical spasm. The Board finds the Veteran’s STRs sufficiently document in-service cervical spine issues that may be reasonably related to his current cervical spine disability. Therefore, the second element is satisfied. Third element: A causal link As to the third element of service connection, a causal link between the Veteran’s current cervical spine disability and in-service incurrences, the Board concludes the weight of the evidence is against finding such a causal link. VA has provided the Veteran with three medical examinations and obtained three separate medical opinions from different examiners. Each examiner opined that the Veteran’s cervical spine disability was less likely than not incurred in service. Of these opinions, the most recent, September 2020 VA-contracted medical opinion is the most probative evidence of record as to the etiology of the Veteran’s cervical spine disability. The September 2020 VA-contracted examiner was a specialist in orthopedics, whereas the other examiners were not. Orthopedics is “a branch of medicine concerned with the correction or prevention of deformities, disorders, or injuries of the skeleton and associated structures (such as tendons and ligaments).” Orthopedics, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/orthopedics, (last accessed Apr. 5, 2021). The September 2020 VA-contracted examiner concluded that the Veteran’s in-service cervical spine issues were “acute only.” An “acute” condition is characterized “having a sudden onset, sharp rise, and short course.” Acute, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/acute, Medical definition 2.b.(1)., (last accessed Apr. 5, 2021). The orthopedist explained that the Veteran’s STRs documented several brief episodes of treatment for neck pain in the 1980s but no subsequent documentation of neck pain occurred until 2007, about 20 years later. The orthopedist observed that throughout the 1990s, while the Veteran was a military recruiter at more remote locations, he received ongoing treatment for other, various medical conditions. His STRs documented his treatment. Significantly, the orthopedist observed that the Veteran’s STRs were “silent for treatment of the neck or symptoms related to the neck.” The orthopedist concluded that “in absence of medical records documenting ongoing neck pain during this nearly 20-year time period, there is no nexus to connect the episodic treatment in the 1980s with the Veteran’s current mild neck arthritis.” Absent evidence to the contrary, the Board finds the September 2020 VA-contracted orthopedist was competent to exam and diagnose the Veteran and to provide a medical opinion as to the etiology of the Veteran’s cervical spine disability. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board finds the examiner’s overall examination, medical findings, and medical opinion credible and probative. The examiner conducted a thorough in-person examination, relied on accurate facts, considered the Veteran’s relevant medical records, medical history, and lay statements—as documented within her examination and opinion—and provided a well-reasoned medical judgment that connected the facts to her ultimate conclusion. The orthopedist’s reliance on the absence of medical documentation between the 1980s and 2007 is notable. Buczynski v. Shinseki, 24 Vet. App. 221, 226‒27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). The Veteran’s STRs and general medical records documented multiple medical issues between the 1980s and 2007, but no such complaints or treatment for his neck. This reasonably suggests that he did not experience cervical spine issue because such issues would have been documented, just as they were in-service and from 2007 onward. Thus, the orthopedist’s reliance on the absence of such medical evidence to support her opinion was proper. The Board finds the orthopedist’s opinion is further supported by the other VA examiners’ respective opinions, each of whom came to the same conclusion as the orthopedist for substantially similar reasons. The April 2010 VA examiner also relied on the absence of documented complaints of or treatment for neck pain during the 20-year timespan. Likewise, the February 2016 VA examiner relied on the lack of complaints of or medical treatment for the Veteran’s neck during the 20-year timespan as a basis to conclude the Veteran’s current cervical spine disability was less likely than not related to his active military service. Absent evidence to the contrary, the Board finds the April 2010 and February 2016 VA examiners were each competent to exam and diagnose the Veteran and to provide medical judgments related to his cervical spine disability. Cox, 20 Vet. App. at 569. The Board finds the medical professionals’ respective examinations, medical findings, and medical opinions are credible and probative. The medical professionals conducted thorough examinations, relied on accurate facts, considered the Veteran’s relevant medical records, medical history, and lay statements, and provided well-reasoned medical judgments. Their respective opinions provide support for the Board’s reliance on the September 2020 VA-contracted orthopedist’s medical opinion who came to a substantially similar conclusion based on substantially similar rationale as the prior examiners. The Board finds no other medical evidence of record addressing the etiology of the Veteran’s cervical spine disability. The Board observes the Veteran provided a physician’s letter in October 2011 from the Spine Institute of Louisiana, but that letter specifically addresses the Veteran’s “low back and bilateral legs,” and does not mention his cervical spine disability. Therefore, it is of no relevance. The Board recognizes that the Veteran has submitted various statements from himself, friends, and family. The Veteran has explained his onset and post-service symptoms associated with his neck. His friends and family have also provided their observations of and interactions with the Veteran. They have explained how he has complained of neck stiffness and pain during and following his active service. The Board finds the Veteran, his friends, and family are competent to report their respective lay observations and experiences associated with the Veteran’s cervical spine disability. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). The Board finds their respective statements credible and probative. But their respective statements do not sufficiently discuss the severity, duration, or frequency of the Veteran’s neck issues. Nor do they offer reasonably sufficient timeframes when discussing their lay observations. For example, the Board is unable to determine if the Veteran continuously experienced neck pain following service or if it was an isolated instance of neck pain. Thus, the Board only affords their respective statements minimal probative value. The Board acknowledges the Federal Circuit has held that lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson, 581 F.3d at 1316. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran if the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). While the Board finds the Veteran, his friends, and his family competent to report their lay observations, without evidence showing that any of them have the necessary medical training or expertise, they cannot competently opine that the Veteran’s current cervical spine disability is related to his neck symptoms he experienced during active military service in this particular case. See 38 C.F.R. §§ 3.159(a)(1), (2); Jandreau, 492 F.3d at 1377. Based on the evidence of record, the Board finds that the probative value of their respective statements is outweighed by the lack of medical documentation of such issues in light of the various medical issues for which the Veteran did seek treatment and that were documented. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The September 2020 VA-contracted orthopedist’s medical opinion, which is also supported by the prior VA examiners’ respective opinions, thus, outweighs their respective lay statements. Therefore, the Board concludes the evidence weighs against finding a causal link. The Board has considered whether the Veteran is entitled to presumptive service connection under 38 C.F.R. § 3.309(a) (chronicity/continuity of symptomatology). The Board finds he is not. First, the Veteran’s STRs are silent for a diagnosis of cervical spine arthritis in service. As noted by the September 2020 VA-contracted orthopedist, the Veteran’s neck issues in service were acute. “A chronic condition, by contrast[,] is a long-developing syndrome, such as osteoporosis or asthma.” Acute vs. chronic conditions, Nat’l Insts. Of Health, Medline Plus Medical Encyclopedia, https://medlineplus.gov/ency/imagepages/18126.htm#:~:text=Acute%20conditions%20are%20severe%20and,broken%20bone%2C%20an%20acute%20condition (last visited Apr. 5, 2021). Therefore, as arthritis was not noted nor suspected during service, chronicity is not established. Second, even if chronicity were established, there is an absence of continuity of symptomatology. As explained above, the lack of medical documentation of neck issues between the 1980s and 2007 reasonably indicates no such issues were present. Again, the Board recognizes and has considered the Veteran’s, his friends’, and his family’s statements about his neck issues during and following military service, but the Board finds the lack of discussion about the severity, during, frequency, and timespan of his neck issues makes their respective statements minimally probative. The Board finds the September 2020 VA-contracted orthopedist’s medical opinion, which is also supported by the prior VA examiners’ respect opinions, thus, outweighs their respective lay statements. Therefore, continuity of symptomatology has not been established. Therefore, the third element is not satisfied. Accordingly, service connection for cervical spine disability is not warranted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.