Citation Nr: 21024092 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-27 357A DATE: April 22, 2021 ORDER Service connection for cervical spine degenerative disc disease (DDD) and degenerative changes with stenosis is denied. FINDING OF FACT The Veteran’s cervical spine DDD and degenerative changes with stenosis is not linked to disease or injury incurred or aggravated in active service. CONCLUSION OF LAW The criteria for service connection for cervical spine DDD and degenerative changes with stenosis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1981 to July 2001. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision. In October 2018, the Veteran testified before a Veterans Law Judge (VLJ) at a live videoconference Board Hearing. A transcript of the hearing is of record. In February 2021, the Veteran was informed that the VLJ who conducted the October 2018 hearing was no longer at the Board, and he was afforded the opportunity to request another Board hearing. The Veteran did not respond to this correspondence, and it is presumed that he does not desire another Board hearing in place of the October 2018 hearing. This issue was previously before the Board in July 2018, October 2019, and August 2020, when it was remanded for further development. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the “nexus” element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). For conditions noted during service (or in the presumptive period) but not shown to be chronic at the time, a continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes). Id. In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for arthritis if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Service connection for cervical spine DDD and degenerative changes with stenosis is denied. The Veteran reports he experienced multiple injuries during active service and that he has experienced neck-related symptoms since active service as a result of those injuries. See October 2018 Board Hearing Transcript. He states his current cervical spine disability had an onset in service or is otherwise etiologically related to service to include his reported in-service neck injuries (1) while removing a transmission from a truck, in Vilseck, Germany; (2) after enduring a head collision with a truck tailgate door in Kissingen, Germany; (3) while performing in a war game operation in Germany; and (4) from moving 10,000 camouflage screens and poles at Fort Lewis. Id.; see also March 2014 Notice of Disagreement; and May 2019 VA Examination Report. Unfortunately, for the following reasons, the Board finds service connection cannot be granted. The Veteran’s service treatment records reflect a diagnosis of a right trapezius strain in July 1990. The Veteran reported complaints of pain on the right side of his neck along with headaches and dizziness for three days after lifting a transmission. His condition was treated with Motrin. The service treatment records do not otherwise show treatment or complaints with respect to the cervical spine. The October 2000 retirement examination report and medical history form do not mention neck problems and reflect a normal clinical evaluation of the neck and spine. Post-service VA medical records show the Veteran was seen as a new patient in January 2010, at which time no neck problems were noted in a review of his medical conditions. He reported ankle and left shoulder pain, but no neck pain. His neck examination was normal. The Veteran subsequently reported neck pain in February 2011, and some disc narrowing of the neck was noted. A May 2011 post-service treatment record characterized the Veteran’s neck pain as being chronic, and its causation was documented as being an “injury.” The exact injury was not documented, but the Veteran described his neck pain as “long-standing.” An MRI revealed cervical stenosis. The Veteran was first afforded a VA examination in connection with this appeal in January 2013. At that time, the Veteran described onset of his neck pain in about 2010, with gradually increasing pain since then. He described the pain as originating in his neck but gradually moving to his right hand and shoulder. Regarding in-service incidents, the Veteran reported a tailgate hitting him on his head and “multiple other small incidents involving neck trauma in service.” The examiner asked the Veteran about his documented July 1990 in-service injury, but he reported that he did not recall it. The examiner diagnosed the Veteran with DDD and degenerative changes to the cervical spine with stenosis, based on the 2011 MRI results and additional imaging studies conducted in conjunction with the examination. Following review of the record and examination of the Veteran, the 2013 VA examiner concluded that the Veteran’s current neck disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner noted the Veteran’s in-service treatment for right trapezius strain in 1990 but cited an absence of in-service treatment for cervical complaints, including at separation from service, in support of her negative opinion. The examiner also noted, however, that the Veteran had reported onset of neck symptoms in about 2010, or nine years after service. Additionally, she explained that the diffuse pattern of the Veteran’s cervical DDD and stenosis was not a pattern of disability related to cervical trauma, which generally shows degenerative changes associated with the specific area of injury. Finally, the examiner noted that the documented episode of trapezius strain was not severe enough, given the described objective and subjective findings, to be considered likely to contribute to cervical disease years later. In July 2018, based on the Veteran’s hearing testimony, the Board remanded this claim so that a new examination that fully addressed the Veteran’s reports of in-service injuries, and continuing symptoms thereafter, could be obtained. The requested examination was conducted in May 2019. During that examination, the Veteran reported that his current neck symptoms began in July 1990 while moving camouflage screens and poles. The examiner issued a negative opinion, but merely cited a lack of evidence of treatment both during and immediately after service in support of that opinion. In October 2019, the Board again remanded the claim to address the Veteran’s lay statements regarding his neck symptomatology, and, again, the examiner did not discuss them when issuing a negative opinion. A final VA examination was obtained in September 2020, following the Board’s August 2020 remand. The September 2020 examiner noted review of the entire claims file and cited specific records of interest but found no evidence of a chronic or recurrent neck problem that began during active service or that could be correlated with the Veteran’s current neck condition. Although the examiner cited lack of documented treatment for neck symptoms during and immediately after service, the examiner went on to explain that it was “not a simple case of lack of documentation of neck pain.” The examiner noted that the Veteran’s neck condition was currently advanced enough to cause significant radiculopathy; explained that the claims file did not suggest he had those symptoms during service; and noted that the Veteran worked in aircraft maintenance again for nearly a decade before reporting neck pain symptoms. Applying the relevant law and regulations to the foregoing facts, the Board initially notes that the evidence does not show that arthritis manifested or was noted during service or until many years after separation. Thus, service connection may not be established on that presumptive basis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Board has also considered whether the Veteran’s statements that he has experienced cervical spine symptoms since active service establish continuity of symptomatology such that his claim may be granted on that basis. However, weighing these statements against all the evidence, they are insufficient to establish service connection on the basis of continuity of symptomatology. Internal inconsistencies in the Veteran’s statements about both his in-service neck injuries and his symptoms thereafter call the accuracy of his recollections into question and, in turn, decrease the probative value of those recollections. For example, during his January 2013 examination, the Veteran stated he could not recall the documented July 1990 in-service injury to his right trapezius. In his 2014 notice of disagreement, the Veteran reported that he injured his neck in July 1990, while he was stationed in Germany, when a truck tailgate slammed down on his head. During his May 2019 VA examination, the Veteran reported that his neck condition began in July 1990, while he was stationed at Fort Lewis, after his unit was tasked to move camouflage screens and poles. At his October 2018 Board hearing, the Veteran testified that his neck condition began in approximately 1990 after a transmission hit the back of his neck. He also testified to participating in war games in Germany during the same time period, being struck in the head by a fellow serviceman’s foot and being brought to his knees by the blow. Regarding post-service treatment, the Veteran’s VA treatment records document a January 2010 new patient visit during which the Veteran reported multiple other medical problems, but not neck pain. During the January 2013 VA examination, the Veteran reported onset of his neck symptoms in about 2010. At other times, including in his notice of disagreement, he described a worsening, as opposed to onset, of symptoms around that time. In short, the Veteran’s own accounts of how he was injured, and how his symptoms progressed thereafter, have varied during the claim period. Additionally, in light of the Veteran’s own descriptions of those injuries and his subsequent reporting of other medical conditions, it is not unreasonable to expect to find reported cervical spine-related symptoms such as neck pain, or even a diagnosis, during active service, if only upon separation from service. However, his October 2000 retirement examination shows a normal clinical evaluation for the neck and spine. For the foregoing reasons, the Board finds the Veteran’s descriptions of his injuries and symptoms both during and after service lack the probative value necessary to award service connection on the basis of continuity of symptomatology alone. Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants’ observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran’s lay evidence). The Board turns, then, to the question of a medical nexus between the Veteran’s current neck disability and service. The only opinion of record linking the Veteran’s current disability to service is his own. However, the question of whether the Veteran’s reported in-service injuries could result in his current cervical DDD and degenerative changes to the cervical spine with stenosis is medically complex. As a lay person in the field of medicine, the Veteran’s statements that his current cervical spine disability is related to his in-service injury are not competent evidence. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). They are outweighed by the medical opinions of record, which the Board finds adequate, given the inconsistencies in the Veteran’s statements regarding his in-service injuries and the onset of his post-service symptoms, coupled with the 2013 examiner’s commentary on the significance of the diffuse pattern of the Veteran’s cervical DDD and stenosis. Accordingly, a nexus to service is also not established, and the criteria for service connection are not met. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. STEPANICK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Denton, Buck 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.