Citation Nr: 21027977 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-36 057 DATE: May 10, 2021 ORDER Entitlement to service connection for a cervical spine disorder (claimed as residuals of a neck injury) is denied. REMANDED Entitlement to service connection for headaches is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a cervical spine disorder that is related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 1101, 1112, 5103A, 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 in the United States Army from April 1966 to April 1968, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In August 2017, April 2020, and November 2020, the Board remanded these matters to the RO for further development. Entitlement to service connection for a cervical spine disorder (claimed as residuals of a neck injury) The Veteran contends that his current cervical spine disorder is related to service. Specifically, he asserts that during training, a fellow serviceman fell on his head and neck and that he has continued to experience neck pain ever since. Service connection may be granted for a disability resulting from a 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 also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurrent in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, 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). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board finds that the Veteran has a diagnosis of cervical spondylosis. See September 2011 private magnetic resonance imaging (MRI) report. Therefore, the remaining questions are whether the Veteran experienced an in-service injury, event, or disease and whether there is a nexus or link between the Veteran's current disability and any in-service injury, event, or disease. Turning to the evidence of record, the Board notes that the Veteran's January 1964 pre-induction Report of Medical History reflects that he reported a spine injury and reflects a notation regarding his back. However, as both his January 1964 pre-induction and April 1966 induction Reports of Medical Examination are silent as to any cervical spine disabilities or neck conditions, the Veteran is presumed sound upon his entrance into service. Additionally, although the Veteran testified during the Board hearing that he was treated for neck pain in service after a fellow serviceman fell on his head and neck during training, the Veteran's active duty service treatment records (STRs) are silent as to any complaints, treatment, or diagnoses related to a neck injury or neck pain. See April 2017 Board hearing transcript, pp. 23-25. The Veteran's January 1968 separation examination is also silent as to any complaints, treatment, or diagnoses related to a neck injury or neck pain and, instead, reflects that clinical evaluation of his neck and spine were normal. As such, even accepting the Veteran's statements regarding an in-service neck injury, the evidence of record belies the conclusion that it resulted in a chronic condition to his cervical spine as no such condition was indicated on his separation examination and the other, available, post-service medical evidence does not reflect symptoms related to his disability until many years after separation from service. In this regard, after review of the evidence of record, the first post-service medical evidence concerning the Veteran's cervical spine disorder is a November 2003 private MRI report, reflecting that the Veteran underwent an MRI of his cervical spine in November 2003 after complaining of pain in his neck. See November 2003 MRI report. In March 2011, the Veteran's private treatment provider also wrote a letter where he stated that the Veteran "has been seen by me since 1980, and has also had issues relating to pains in the neck." The private treatment provider stated that the initial trauma to the Veteran's neck occurred while he was in basic training at which time a fellow servicemember fell on his head, hyperextending his neck. His private treatment provider further indicated that in 2003, the Veteran underwent an MRI of his spine and that over the years he has been treated with medications and has also seen several chiropractors over the years in an attempt to try to help with his head and neck pain. The Board notes that it is unclear whether the Veteran's private treatment provider reviewed the Veteran's STRs and whether, based on his letter, the Veteran had neck pains and issues since he started treatment with the private provider in the 1980s (over a decade after his discharge from service) or from 2003 (over three decades after his discharge from service), when he first underwent an MRI of his cervical spine. Additionally, the private treating physician did not explain why the Veteran's current neck condition was related to his reported trauma in service. As such, the Board assigns this opinion less probative weight. Thereafter, the evidence reflects that in September 2011, the Veteran underwent another private cervical spine MRI where he was assessed with moderate to advanced cervical spondylosis. See September 2011 MRI report. A November 2016 private treatment record further reflects that the Veteran's past medical history includes chronic back pain from a prior injury years ago while a December 2016 private treatment record indicates that the Veteran's medical problems included a cervical strain and sprain with a date of 1987. At the April 2017 Board hearing, the Veteran testified to seeking private treatment, to include chiropractic treatment, for his neck condition since service. See Board hearing transcript, pp. 11-31. On several occasions, VA has requested the Veteran submit an updated VA Form 21-4142 to obtain the identified records, including any additional private treatment records. See e.g., February 2019, August 2019, April 2020, July 2020, November 2020, and December 2020 development letters. The Veteran has not provided a VA Form 21-4142 necessary to obtain the private chiropractic records. He has also not otherwise submitted such records for consideration. Additionally, although the Veteran's spouse submitted a statement dated March 2011, and notarized in December 2013, noting that the Veteran has sought the help of a chiropractor, she did not indicate when he began seeking such treatment or the name of the chiropractor. As such, despite the Veteran's statements and VA's attempts to obtain additional medical records, the available medical evidence of record reflects that the Veteran sought treatment for his cervical spine disorder years after his separation from service. The record also contains two pertinent VA opinions of record. First, in July 2018, a VA examiner provided a negative nexus opinion noting that he had considered all the records, including the lay statements of record, and that the Veteran's STRs and medical records thereafter do not indicate continuous treatment for a neck injury. The examiner also noted that moderate to advanced spondylosis can be an age-related condition. In January 2020, another VA opinion was obtained concerning the Veteran's claim. The January 2020 VA examiner found, after documenting review of the medical and lay statements of record, that it was less likely than not that the Veteran's cervical spine disability was related to his active duty military service. As rationale, the VA examiner explained that there is no objective evidence that the Veteran sought medical care for a neck injury in service and there are no objective records that the Veteran sought care subsequent to the reported injury in service or in the years immediately following service. The VA examiner acknowledged the March 2011 letter from the Veteran's private treatment provider but found that such did not indicate that the Veteran's current neck condition was related to service. The VA examiner also noted that the Veteran's November 2003 and September 2011 cervical spine MRIs showed that the Veteran had degenerative, age-related changes that progressed from 2003 to 2011, which is consistent with the natural progression of the disease and with the wear and tear of the aging process. In light of the above evidence, the Board finds that the preponderance of the evidence is against finding that the Veteran's claimed condition was manifest during service, or was shown to have developed as a result of an in-service injury, event, or disease, despite the Veteran's contentions to the contrary. Specifically, the probative medical evidence of record does not indicate that his cervical spine disorder is related to his time in active service. The Board finds that the July 2018 and January 2020 VA opinions collectively constitute probative evidence of the medical nexus question as these opinions were based upon a review of the Veteran's documented medical history, assertions, and other examinations of records, and based upon rationale with clear conclusions and supporting evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, the January 2020 VA opinion sets forth, with detailed rationale, that the Veteran's cervical spine disorder was not caused by service while both the July 2018 and January 2020 opinions indicate that his current disability is age-related rather than related to his reported in-service incident. Although the Veteran's private treatment provider indicated that the Veteran's current neck symptoms may be related to an initial trauma in service, for the reasons discussed above, including a lack of rationale for that conclusion, the Board assigns this opinion less probative weight than the VA opinions of record. The Board acknowledges that the Veteran is competent to report the symptoms that he experienced. However, he is not competent to provide an opinion as to the nature and cause of his disability or to opine that the symptoms that he experienced are related to specific diagnoses. These issues are medically complex, as they require specialized medical education and interpretation of medical test results. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the Veteran is not shown to have appropriate training and expertise, he is not competent to render a persuasive opinion as to such matters. See id. Moreover, the Board finds the January 2020 VA opinion, which is supported by rationale, as well as the contemporaneous, available medical records to be of more probative weight than the general assertions of the Veteran. Further, the medical evidence of record does not show any complaints or symptoms related to the Veteran's cervical spine disability until several years after his active duty service. The Board notes that this delay, while not conclusive, weighs against the establishment of service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Although the Veteran has asserted that he has continued to experience neck pain and symptoms ever since his reported in-service incident during basic training, the Board finds that these reports, while competent, are insufficient to warrant service connection on the Veteran's statements alone. In this regard, continuity is not established based on the clinical evidence of record, which shows, a cervical spine diagnosis in 2003, over 30 years after the Veteran was discharged from active duty service. This, in conjunction with his failure to mention symptoms at separation from service, the lack of evidence of neck symptoms or diagnoses during active service, and the overall lack of corroborating medical evidence of treatment for his condition, approximate to, or within at least the years right after his discharge from service, despite multiple attempts by VA to obtain such medical evidence, belies his assertions of continuous symptoms. Specifically, these factors weigh against the credibility of the Veteran's lay assertions and the Board assigns less credible weight to the report of continuous neck pain since his reported in-service incident. See Caluza v. Brown, 7 Vet. App. 498 (1995) (giving factors to consider when assessing the credibility of lay evidence). Therefore, the Board finds that continuity is not established based on the evidence of record. Accordingly, when weighing the medical and lay evidence of record, including the contemporaneous medical records that do not reflect a diagnosis or symptoms of a cervical spine disability until years after active service and the probative opinions of record, the preponderance of the evidence shows that the Veteran's current disability is not related to service, or any in-service injury, event, or disease. Additionally, as noted above, the record does not reflect that the Veteran's current disability manifested during the Veteran's active duty service, or within one year after his separation from service. As such, presumptive service connection for this disability, on the basis of a chronic disease, is not warranted. Therefore, for the foregoing reasons, the Board finds that the weight of the competent and credible evidence does not reflect a nexus between the Veteran's cervical spine disorder and his military service. In reaching the above conclusion, the Board also considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable in this case and his claim is denied. 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for headaches Unfortunately, the Board finds that this matter must be remanded for further development. Most recently, in November 2020, the Board remanded this matter for a VA opinion where the Veteran would be considered presumed sound and without headaches at the time of his entry into active duty. In this regard, the Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. History provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In the present case, regardless of his pre-induction and induction Report of Medical Histories, as the Veteran's entrance Report of Medical Examination does not note any defects, infirmities, or disorders related to headaches, he is presumed to have been in sound condition unless clear and unmistakable evidence demonstrates that his headache disability existed before service AND was not aggravated by service. Here, however, the most recent VA examiner, in March 2021, opined that the Veteran's headaches were not related to service, and again found that the Veteran's headaches pre-dated service. Although the VA examiner listed the evidence she considered to reach this conclusion, including pre-induction and induction Report of Medical Histories, the VA examiner did not apply the correct standard (clear and unmistakable) in making the finding that the Veteran's condition pre-existed service. Additionally, the examiner did not apparently consider the Veteran's lay reports of headaches in service where he confirmed that he experienced headaches when he injured his neck. See April 2017 Board hearing transcript, p. 34. Once VA provides an examination, it must be adequate, or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board finds that a remand is again warranted for an addendum VA opinion of record that considers the evidence of record under the correct legal standards and complies with the prior Board remand directives. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated March 2021. 2. Provide the Veteran with another opportunity to identify and submit any outstanding private treatment records that are related to his claim. After securing the necessary releases, any identified outstanding records should be obtained and associated with the claims file. 3. Then, obtain an addendum medical opinion from an appropriate medical professional who has NOT previously provided an opinion in this case to determine the nature and origin of the Veteran's diagnosed headache condition. The claims file, to include a copy of this Remand, must be available to and be reviewed by the examiner. The examiner is asked to respond to the following: (a) Provide an opinion as to whether the Veteran's diagnosed headache condition clearly and unmistakably (obvious, manifest, undebatable) pre-existed his active duty service. Why or why not? In providing the above opinion, the examiner is advised that that the Veteran's claimed disability is NOT reported on his service entrance examination and that his reports of headaches on his pre-induction and induction Report of Medical Histories do not, alone, constitute clear and unmistakable evidence that his headaches pre-existed service, and, thus, are not, by itself, sufficient to overcome the presumption of soundness. (b) If the examiner determines that the Veteran's headache disability clearly and unmistakably pre-existed his active service, the examiner should opine as to whether such condition was clearly and unmistakably NOT aggravated (increased in severity) by service, i.e., did not undergo an increase in the underlying pathology during service. In other words, is it clear and unmistakable that any worsening of the disability was due to the natural progression of the disability? The examiner MUST ADDRESS the Veteran's reports of experiencing headaches in service. See April 2017 Board hearing transcript, p. 34 (confirming that he experienced headaches after injuring his neck in service). If it is found that there is clear and unmistakable evidence that the condition was NOT aggravated by service, the examiner should clearly indicate the clear and unmistakable evidence supporting his/her conclusions. (c) If the examiner finds that the Veteran's current headache disorder did not clearly and unmistakably pre-exist active service or was not clearly and unmistakably aggravated by active service, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that such disorder had its onset during active service or is otherwise related to service? In providing the above opinion, the examiner MUST ADDRESS the Veteran's and his spouse's lay statements attesting to the fact that the Veteran experienced headaches in and since service. The examiner is advised that the term "clear and unmistakable" is an onerous standard. In other words, clear and unmistakable evidence leads to a conclusion that is undebatable. The term "at least as likely as not" does not means "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner should comment on all questions above and set forth a complete rationale for all opinions provided. In this regard, a discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.