Citation Nr: 21023159 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-10 841 DATE: April 20, 2021 ORDER Service connection for a cervical spine disability is denied. REMANDED Entitlement to service connection for a respiratory disorder is remanded. FINDING OF FACT The Veteran's current neck disability, to include cervical arthritis, is not shown to have been present in service, was not compensably disabling within the one year presumptive period or for many years thereafter, was not related to or caused by service, and the symptoms have not been continuous since service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from December 1971 until March 1973, and was discharged under honorable conditions. He also served on active duty from March 1974 until December 1975, but received a discharge under conditions other than honorable for this period. Therefore, he is a veteran based on his first period of active service only, and an award of service connection cannot be based on his second period of active service. See generally 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.1, 3.12. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to addressing the specific contentions regarding made directly by the appellant and reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical 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) medical 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). Congress specifically limited entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Arthritis is considered by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 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). This rule does not mean that any manifestation in service will permit service connection. 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. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical disability, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Cervical Spine Disability The Veteran seeks service connection for a cervical spine disability. The Veteran’s service treatment records are silent for complaints or treatment for any neck disability. Turning to the evidence, post-service treatment notes show an April 1994 VA General Medical examination report that notes that no cervical spine pain was noted. A February 2008 CT scan of the Veteran’s neck showed prominent anterior cervical spondylosis, calcification of the anterior longitudinal ligament components, and possible cervical canal spinal stenosis on a developmental basis. The findings were generally interpreted as cervical arthritis. An August 2008 VA treatment note shows that the Veteran complained of neck pain. A September 2012 VA treatment note shows that the Veteran reported experiencing neck pain for many years. MRI results showed significant multileveled degenerative disc disease at the C3 to C7 discs. Moderate posterior subligamentous disc bulging and moderate severe hypertrophy of the facets were found. An assessment of neck pain was provided. A private September 2012 MRI report shows that an impression of significant multilevel degenerative disc and joint disease was found. A private June 2013 medical note indicates that the Veteran experienced pain in his neck that radiated into his bilateral upper extremities. The private examiner opined that the Veteran’s injury to his neck was due to a work related accident. In June 2013, a private examiner, regarding the Veteran’s complaints of cervical spine pain, noted that the Veteran’s condition was due to a work related accident. This opinion is both adequate and probative, as it was based on examination of the Veteran and knowledge of the Veteran’s medical history. The Veteran was afforded a VA examination in October 2014. The Veteran reported that while on active duty, a lieutenant had hit him in the neck and that he had on and off neck pain. Additionally, he reported that while working at a fiberglass plant two years ago, he slipped and fell. He heard his neck “pop” and felt intense neck pain. Since the injury, he experienced constant neck pain with reduced range of motion. A diagnosis of degenerative arthritis of the spine was provided. While an opinion and rationale were provided, in its December 2018 decision and remand, the Board indicated that they were inadequate. A VA medical opinion was obtained in August 2019. The medical opinion report shows that the VA examiner noted a review of the record, to include the February 2008 private cervical spine imaging and August and September 2008 VA treatment records. The VA examiner noted that upon a review of medical records, the Veteran was currently diagnosed with degenerative arthritis of the cervical spine. A CT scan of the neck performed in February 2008 indicated symptoms of hoarseness and suspicion of a vocal cord tumor, incidentally discovered findings consistent with arthritis of the neck. Subsequent imaging from 2012 and onwards have shown the same findings of the condition. Although the Veteran reported during an examination conducted in October 2014 that he was struck in the neck by a lieutenant while in service, a service treatment record dated in December 1974 indicated that the Veteran was seen for neck pain without history of trauma and the findings on examination were normal. Both separation examinations were silent for any ongoing neck pain or issues at time of discharge. The records were silent for any neck issue after discharge until he was seen in 2012 when he experienced neck pain after being involved in an MVA. The VA examiner stated that although the Veteran reported that he had continuous neck pain since service, records were silent for any chronic neck condition from discharge up until the imaging done in 2008 that showed arthritis. With over 30 years gap in care, from discharge until 2008, chronicity and persistence of the current neck condition could not be established and substantiated as being incurred or caused from/by service. Therefore, it was the VA examiner’s opinion that the Veteran’s cervical spine condition of arthritis was less likely than not incurred in or caused by active duty military service. The Board finds this opinion to be adequate and highly probative, as it was based upon a comprehensive review of the claims file and examination of the Veteran, and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). As an initial matter, the Board finds that the Veteran has current diagnoses of degenerative arthritis of the cervical spine and cervical degenerative disc disease (DDD). Next, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran incurred a neck injury during service, specifically being struck in the neck by a lieutenant. See October 2014 VA examination report. After a review of the record, the Board finds that the Veteran’s current neck disability, to include cervical arthritis, did not initially manifest during service, has not been continuous since service, and did not manifest within one year after service. Under 38 C.F.R. §§ 3.307 and 3.309, arthritis must manifest to a compensable degree within one year of separation from service or show a continuity of symptomatology from service. That is not the case here. While the Veteran has reported experiencing continuous neck pain since service, and is competent to report experiencing neck pain, the weight of the evidence is against a finding of continuity of symptoms since service. There are no documented complaints of neck pain in his service treatment records or separation examinations for his period of honorable service. Such absence of complaints, findings, or treatment during service or at separation from service, in this context, is highly probative, contemporaneous evidence that the Veteran did not experience neck symptoms at any time during his period of honorable service. Furthermore, he was not diagnosed with a neck disability until 2008, more than 30 years after his period of honorable service. While not dispositive, this lapse of time between service separation and diagnosis is one factor that weighs against a finding of continuous symptoms since service. In addition, the 1994 VAX for his lumbar spine disability notes that he did not describe any pain in the cervical spine, and this inconsistency weighs against a finding of that the Veteran’s reports of continuous neck pain during and since service are credible. For these reasons, the weight of the evidence supports a finding that the Veteran's current cervical disabilities, including arthritis, did not manifest during service or within one year after separation from service and has not been continuous since service. Finally, the Board finds that the Veteran's current cervical disabilities, including arthritis and DDD, are not etiologically related to service. To the extent that the Veteran has asserted that his cervical disabilities are related to or caused by service, this is testimony as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d 1372, 1377 n.4. Thus, his opinion has no probative value. Therefore, the only competent nexus opinions of record are the August 2019 VA examiner's negative nexus opinion and the June 2013 private examiner’s opinion that the Veteran’s cervical condition is due to a work-related accident and, as discussed above, these opinions are adequate and highly probative. As these are the only competent nexus opinions of record, the Board finds that the weight of the evidence supports a finding that the Veteran's current neck disabilities, to include cervical arthritis, are not etiologically related to service. In summary, the Board finds that the weight of the evidence does not support an award of service connection for a cervical spine disability, to include arthritis and DDD, as the cervical spine disabilities did not manifest during service or within one year after service, have not been continuous since service, and are not etiologically related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Respiratory Disorder Unfortunately, a remand to assist in fully and fairly evaluating the Veteran’s claims is again required in this case. In its December 2018 remand, the Board noted that the Veteran had reported being treated for a respiratory disorder while in service, and that a service treatment record, dated in January 1973, showed that the Veteran was treated with cough medication. The Board also indicated that post service private and VA treatment records showed several respiratory disorders, to include sleep apnea, chronic obstructive pulmonary disease (COPD), right middle lobe nodule, bronchiectasis likely related to chronic post infections process, emphysematous changes, and a pulmonary nodule. Pursuant to remand directives, the VA examiner was requested to clarify all currently diagnosed respiratory disorders. However, while the July 2019 VA examiner provided diagnoses and opinions regarding current COPD and chronic bronchitis conditions, the VA examiner failed to address each of the diagnoses of record, as noted above, to include any that may have resolved during the appeal period. Therefore, a remand is required to obtain nexus opinions for all of the diagnosed respiratory disorders, to include any that may have resolved during the pendency of the appeal. The matters are REMANDED for the following action: 1. Return the Veteran’s claims folder to the examiner who conducted the August 2019 VA respiratory conditions examination, or a suitable substitute, for an addendum opinion. If an additional examination is deemed necessary, one should be scheduled. **The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination, if one is deemed necessary. After review of the record, the examiner should address the following: a. Clarify all currently diagnosed respiratory disorders, to include any that may have resolved during the appeals period (including sleep apnea, COPD, right middle lobe nodule, bronchiectasis likely related to chronic post infections process, emphysematous changes, and a pulmonary nodule). b. For EACH identified respiratory disorder, the examiner provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such currently diagnosed respiratory disorder had onset in, or is otherwise related to, his period of honorable active service (from December 1971 to March 1973). **In rendering his or her decision, the VA must specifically address the Veteran’s assertions of an in-service treatment for a respiratory disorder, and the January 1973 service treatment record documenting that the Veteran was treated with cough medication. A complete rationale must be provided for all opinions expressed and conclusions reached. 2. Then, readjudicate the remaining issue on appeal. Megan Thomas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.