Citation Nr: 21024357 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 08-13 621 DATE: April 22, 2021 ORDER Entitlement to service connection for residuals of a neck injury is denied. FINDING OF FACT A preponderance of the evidence is against finding that the Veteran’s preexisting neck injury was aggravated by his active service and is also against finding that his current cervical spine spondylosis manifested in or within one year of his separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a neck disorder have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from September 1969 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2007 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran appeared at a June 2009 hearing before the Veterans Law Judge who issued the August 2010 decision finding new and material evidence to reopen the claim and remanding it for further development, as well as an additional remand in March 2014. An August 2017 decision authored by the same Judge denying the claim was vacated by the Court of Appeals for Veterans Claims (Court) in a Joint Motion for Remand (JMR) agreed to by the parties. The Board remanded the claim for further development in March 2019 and November 2020. Both of these decisions were authored by different Veterans Law Judges, as the Judge who conducted the hearing was and is currently unavailable. The Veteran was previously notified of his right to a new hearing before a different Veterans Law Judge but did not respond. Entitlement to service connection for residuals of a neck injury The Veteran asserts that his preexisting neck condition was aggravated by his active service. Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence must show (1) a present disability, (2) an inservice incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000), however, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, service connection for certain chronic disorders, such as arthritis, may be presumed where demonstrated to a compensable degree within 1 year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For an enumerated “chronic disease” shown in service (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C. § 1153). Aggravation by service is presumed where there is an increase in disability during service, unless there is a specific finding that the increase is due to the natural progress of the disease. However, temporary or intermittent flareups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski,1 Vet. App. 320, 323 (1991). Preservice private treatment records indicate the Veteran was in an August 1965 car accident that resulted in cervical vertebrae subluxation of C3 and C4, a fracture of the twelfth dorsal vertebrae and dislocated cervical vertebrae. He was placed in traction for five days, had his neck immobilized for several months and then wore a soft cervical collar and was prescribed pain medication. April 1966 private x-rays revealed no significant change since his original treatment. During his August 1969 entry examination, the Veteran reported a compression fracture of T11-T12, subluxation of C3 and C4, and fracture of C3 in the August 1965 car accident, as well as back trouble. The examiner noted these conditions and recorded that the Veteran exhibited full range of motion with no neurological abnormalities. October 1971 service treatment records from an on-base orthopedic clinic indicate the Veteran was referred due to ongoing and worsening back and neck pain for the past two and a half years. The orthopedic clinician noted the Veteran’s report of back and neck pain since the accident and, after conducting imaging, pronounced the Veteran fit for duty. On his February 1972 separation examination, the Veteran’s spine and other musculoskeletal faculties were marked “normal,” although he reported “I have a back problem, also neck trouble.” In April 1972, the Veteran applied for compensation, claiming his neck disorder was aggravated by his service. He was afforded a June 1972 VA examination, which included imaging revealing minimal changes of the cervical spine with very slight subluxation of the C3 vertical body and fusion of the C3-C4 joint, described as secondary to old trauma. The Veteran reported mostly lower back pain inservice, treated with prescribed pain medications, but also complained of a current grating sensation and stiffness in his neck. On examination, his neck appeared normal, with standard range of motion except for a slight limitation in lateral bending, which the examiner described as residuals of a previous neck injury. The claim was denied in a July 1972 rating decision. The Veteran filed an additional claim in January 1988, stating he aggravated his neck injury during service and was having increased trouble with the condition. July 1988 treatment records indicate he reported increasing numbness nad tingling in both arms, as well as worsening neck stiffness over the prior year. VA treatment records note he participated in physical therapy for his neck from July to December 1988, and that by December his condition had dramatically improved, with no further evidence of neuropathy or muscle spasms. The Veteran filed the current claim in April 2007, stating he could prove aggravation based on inservice treatment and produce a pill bottle of medicine prescribed to him during service. The pill bottle is Valium, prescribed to the Veteran inservice shortly before separation. He also claimed that wearing his military-issue helmet during training aggravated his neck disorder and submitted a medical treatise entitled “The Effects of a Variable Helmet Weight and Subject Bracing on Neck Loading During Frontal -GX Impact.” At the May 2009 hearing, the Veteran stated that he felt that when he put the helmet on every day during basic training he felt his “neck was bothering me after that,” and that it aggravated his neck condition, from which he has never been pain-free. He stated that after his preservice accident his only lingering symptom was reduced range of motion. The Veteran also reported receiving prescription medication, Valium and Darvon, during basic training, which he described as traumatic, causing him to lose 25 pounds. He indicated receiving helpful treatment in the 1980s with exercises he continues to do during periods of neck exacerbation but denied any regular treatment or surgeries since service. VA treatment records indicate the Veteran reported flareups of neck pain in December 2009 as well as January and February 2010, while in August 2010 he reported relief due to neck exercises and changing his daily activities. The Veteran was afforded a VA examination in September 2010, at which the Veteran reported his back and neck were aggravated during basic training but that he was able to pass. Imaging revealed multilevel degenerative disc disease throughout the mid-cervical spine, more pronounced on the right than the left, and most pronounced at C5-C6, with neuroforaminal narrowing at C4-C5 and C5-C6 bilaterally. The examiner opined that his neck issues were less likely than not increased beyond their natural progression during service, as his service treatment records contain no complaints of neck pain during service and he did not manifest a current neck disability. In an addendum opinion, the examiner opined that while the Veteran’s neck injuries preexisted service, as he reported neck pain inservice, the condition was aggravated by service. However, the examiner stated he could not provide a baseline prior to the Veteran’s entry to service without resorting to mere speculation. The Veteran was afforded an additional VA examination in June 2014. The Veteran reiterated his statements regarding the worsening of his neck condition during basic training and reported that while no x-rays were taken, he was given pain medication and a muscle relaxant. The examiner noted no functional loss due to reduced range of motion of the neck, and all other testing results were normal. Concurrent imaging revealed moderate spondylosis of the cervical spine. The examiner opined that the Veteran’s condition was less likely than not aggravated by his service. The examiner refuted the Veteran’s assertion that his helmet created a worsening of his neck condition, noting that the Veteran only wore it during basic training and in very limited circumstances thereafter. After reviewing imaging from the time of the preservice accident through the current examination, the examiner stated “the most recent x-rays suggest the normal aging process is occurring regarding his neck condition,” and indicated he could not opine anything else without resorting to mere speculation. The Board requested an advisory opinion on the matter from the Veterans Health Administration (VHA), which was completed in September 2016. A board-certified neurosurgeon noted that the Veteran’s cervical spine condition clearly and unmistakably preexisted his military service and opined that only temporary aggravation occurred during service, without acceleration of the underlying condition. The VHA neurosurgeon reasoned that the initial injury was severe in nature and that no permanent increase in disability since the initial incident was evident based on the evidence of record, although she conceded that wearing a heavy helmet during basic training could have temporarily aggravated the condition. However, the neurosurgeon also opined that the Veteran did not have a current cervical spine disability. March 2018 VA treatment records indicate the Veteran complained of worsening neck pain. April 2014 records record ongoing neck pain and restriction, with the treating clinician noting “he has a very remote history of neck pain as a teenager, recovered well with no residuals, he now complains of end range pain with motion.” The Board denied the Veteran’s claim in an August 2017 decision. In a June 2018 JMR, the parties agreed that the September 2016 VHA opinion, used as a basis for the August 2017 denial, was inadequate. Notably, the JMR observed that the opinion indicated the Veteran did not have a current cervical spine disability while simultaneously starting his cervical spondylosis was due to natural progression. March 2019 and November 2020 Board decisions remanded the claim to the AOJ for further development in accordance with the terms of the JMR, to include addressing the medical treatise article submitted by the Veteran as well as his contention that wearing his helmet during basic training aggravated his preexisting neck condition. The Veteran was afforded an additional VA examination in December 2020. The examiner noted the Veteran’s preservice motor vehicle accident and resultant cervical spine injury as well as the fact that he was asymptomatic at entry. The examiner catalogued the Veteran’s reports of extended marching, strenuous activities, wearing a 13-pound helmet and being given pain medication and muscle relaxants during basic training. The Veteran reported chronic neck pain since service, although he denied hospitalization or surgery, describing his current neck pain as one out of 10 on average, aggravated by turning or twisting, with occasional sharp pain and “snapping and cracking” sounds. On examination the Veteran exhibited reduced range of motion with pain constituting a functional loss. He demonstrated full muscle strength and normal reflexes and sensation during testing, with no radiculopathy demonstrated or walking aides required. Concurrent imaging revealed cervical spine arthritis without IVDS. The December 2020 examiner opined that the Veteran’s neck injury clearly and unmistakably preexisted service but was not aggravated beyond its natural progression by service. After reviewing the medical treatise article submitted by the Veteran, the examiner noted that it was not applicable to the Veteran, as it was based on a study of Air Force pilots and concerned the potential risk of neck injury during ejection or frontal impact. The examiner reasoned that the Veteran’s current neck condition was a result of the progression of his preservice cervical fracture progressing due to natural body habitus and age. She opined that while the Veteran reported “neck trouble” on his separation examination, his separation examination noted no functional loss and she observed he did not begin to seek treatment until many years after discharge. The examiner opined that while temporary aggravation of the Veteran’s preexisting neck condition was plausible, there was no medical evidence to support permanent aggravation of the underlying cervical fracture during service, and a review of medical literature failed to support the Veteran’s theory regarding aggravation. At the outset, the Board finds that the Veteran’s cervical spine disorder, including subluxation of the C3 and C4 vertebrae with fracture of the C3 clearly and unmistakably preexisted his service, as they were noted on his entry examination. The Board acknowledges the Veteran’s report of increased neck pain during service, which he attributes to wearing a 13-pound helmet during basic training, and notes that records confirm he was prescribed Valium during service. However, the Board finds that he is not competent to differentiate between a temporary flareup and a permanent worsening of his underlying cervical spine disorder during service. This issue is medically complex, as it requires medical training and knowledges of the internal workings of the human body. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board also finds the medical treatise article submitted by the Veteran to be of little probative value, as it is a study based on possible neck injuries to helmeted Air Force pilots during high speed collisions or ejections, and does not deal with the aggravation of preexisting disorders or the wearing of a helmet for prolonged periods during activities such as basic training. Finally, as previously documented by the June 2018 JMR, the Board finds the September 2010 and September 2016 VA examiner opinions to possess little probative value, as both examiners stated the Veteran did not have a current cervical spine disability despite the fact that the x-ray evidence available at the time clearly demonstrated cervical spondylosis. Conversely, the Board finds the December 2020 examiner opinion to be highly probative, as it considers the Veteran’s entire claims file and provides a supporting rationale for the conclusion furnished based on objective medical evidence while also acknowledging the lay statements of the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“most of the probative value of a medical opinion comes from its reasoning”). The examiner noted that while the Veteran complained of neck pain inservice and noted “neck trouble” on his separation examination, his neck was functionally normal, and there was no evidence to support aggravation of his underlying cervical fracture. The Board additionally observes that x-rays taken one month after separation revealed only minimal changes of the cervical spine, with fusion at C3-C4 and slight subluxation at the C3 vertebra, both of which were noted on the Veteran’s entry examination. The only symptom noted by the immediate post-service examination was slightly limited range of motion, which, according to the June 2009 Board hearing transcript, the Veteran reported had been present since his preservice accident. With regard to chronicity, there is competent no lay or medical evidence to indicate the Veteran’s current cervical spine spondylosis first manifested inservice or within one year of his separation. X-ray imaging conducted prior to, during and immediately after separation is negative for cervical spondylosis, and he was not diagnosed with this disorder until 2010, when imaging revealed spondylosis throughout the cervical spine but noted the worst symptomatology at different cervical vertebrae than those affected by his preservice accident. As noted above, although the Veteran is competent to report increased pain during service, he does not have the medical training to diagnose cervical spondylosis inservice; while immediate post-service imaging is silent for the condition and a trained medical clinician has opined that it is a result of natural body habitus and age. See Jandreau, 492 F.3d at 1377 n.4. As such, the Board finds that the Veteran’s current cervical spine disorder, although an enumerated chronic condition, was not present during service or within one year of separation. 38 C.F.R. §§ 3.307, 3.309. Overall, the probative value of the objective medical and expert opinion evidence outweighs the Veteran’s lay perception of inservice aggravation. The Veteran’s cervical fracture clearly pre-existed service and was noted on his entry examination. Without a finding of aggravation, a preexisting condition cannot be granted service-connection. The Board finds that the preponderance of the evidence establishes that there was no increase in the severity of the Veteran’s preexisting cervical spine disorder during service, and that his current cervical spondylosis did not manifest in and is not otherwise due to service. As such, the claim must be denied. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). As a preponderance of evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.