Citation Nr: 21028223 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-00 181 DATE: May 10, 2021 ORDER The claim of entitlement to service connection for a neck disability is denied. FINDING OF FACT The Veteran's neck disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for neck disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Air Force from September 1966 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2019. A written transcript of that hearing has been prepared and is associated with the evidence of record. In January 2020, the Board remanded this matter to the RO for additional development, including to obtain a more thorough etiological opinion regarding the Veteran's disability. The Board concludes that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. The claim of entitlement to service connection for a neck disability. The Veteran contends that his current neck disability is related to his active service. Specifically, he contends that his neck was injured on multiple occasions during active service, with the initial incident being a motor vehicle accident (MVA) in 1971. He contends that he has had ongoing pain and residual symptoms since service. See e.g., November 2019 Board hearing transcript. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In this case, the Veteran has a current diagnosis of degenerative arthritis and degenerative disc disease of the cervical spine as evidenced by the November 2020 VA examination disability benefits questionnaire (DBQ). Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a). Walker, 708 F.3d 1331. As such, the Board will consider whether the Veteran is entitled to service connection on a presumptive basis as well as on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. When the preponderance of the evidence weighs against the claims of the Veteran, the claim will be denied on its merits, and when the preponderance of the evidence weighs for the claims of the Veteran, the claim will be granted on its merits. In those cases, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 54. Having fully considered the evidence of record, the evidence demonstrates that the Veteran's cervical spine disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Further, the credible and probative evidence of record does not establish a direct nexus between the Veteran's current neck disability and an in-service event, injury, or disease. The Veteran's service treatment records (STRs) reflect that while the Veteran did report getting "whiplash" following a November 1971 MVA, the Veteran reported that his pain resolved within one to two months and he had no complications or sequelae. See February 1973 report of medical examination. The Veteran asserts that he also injured his neck while bowling during service, however, according to his STRs, the Veteran complained of upper back and shoulder pain after he fell while bowling and was given muscle relaxers to treat the muscle spasm. See March 1975 STR. The Veteran asserts that he injured his neck on these and other occasions during service, including as due to his engagement in athletic activities. Still, his STRs and subsequent medical records do not show that any such injuries resulted in a chronic neck condition during service. See e.g., June 1981 STR noting overall excellent health; February 1983 STR noting a normal physical examination and noting that the Veteran "runs and plays racquetball no pain." According to a January 1988 report of medical history, the Veteran reported he was in excellent health, was not taking any medication, and did not report neck pain or other problems. There is no indication that the Veteran was diagnosed with arthritis or a degenerative condition while in service. On remand, the Veteran received a VA examination in November 2020 and the RO obtained an additional medical opinion in December 2020. According to these VA medical opinions, which took into consideration the STRs noted above and other in-service treatment notes, the Veteran's service records do not establish that the Veteran had a chronic neck condition during his active duty. Next, the evidence of record does not include complaint of chronic neck pain within one year of the Veteran's discharge. Instead, several years following his completion of service, the Veteran was in another MVA, and evaluated for a neck injury. See May 1993 Orlando Orthopedic treatment records. The Veteran reported having immediate pain after the accident that progressed into severe pain within a few hours and, several days later, pain that began to radiate down his left shoulder. According to this treatment record, the Veteran denied prior neck injury, and x-rays obtained at the time were found to be normal. He was assessed with an acute cervical sprain and started on physical therapy. A June 1993 MRI of the neck showed "minor degenerative disc changes at multiple levels with only small disc bulges and bone spurs" with no herniated disc. As of July 1993, the Veteran continued to have neck pain, numbness and weakness in his right upper extremity with complaint of "radicular-type symptoms." He continued to receive evaluation and treatment through December 1993. As such, these treatment records show the Veteran was first assessed with minor degenerative changes in 1993, years after his separation from service and outside the one-year presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Notably, records from the early 2000's to 2010 are silent for complaint of neck pain. See e.g., Baptist Primary Care records. Further, according to March 2006 records from Jacksonville Orthopedic Institute, examination of the Veteran's cervical spine was normal, and his neck was nontender and had "full range of motion." He denied having neck pain. While the Veteran is competent to report experiencing symptoms of pain since service and during the presumptive period, the Board finds the reports of continuity of symptomatology not credible. The Veteran's reports are internally inconsistent with his contemporaneous treatment records, which show that he did not complain of or fully denied experiencing neck pain over many years as outlined above. While the Veteran asserts that his post-service symptoms of neck pain are manifestations of his current neck disability, he is not competent to determine that such symptoms were related to his condition as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which weighs against the Veteran's claim. According to the December 2020 VA opinion, the MRI of June 1993 identified minor degenerative disc disease (DDD), which "is considered a natural condition due to desiccation of the discs, with associated inflammation and spur formation." This physician noted that over 50 percent of men over the age of 50 will have evidence of degenerative spine disease, with the prevalence rising significantly thereafter. He opined that the Veteran's "minor (specified by radiologist) DDD was age-appropriate at the time of diagnosis in 1993." Further, although the Veteran had "an acute, self-limited whiplash, there is no evidence of a chronic condition" and there was a span of five years until his DDD was diagnosed. The examiner opined it was therefore "less likely than not that the veteran's DDD had its nexus in service or is due to events in service, including the whiplash in 1971." The examiner additionally noted that the Veteran's current degenerative joint disease (DJD) was not identified in 1993 and the negative nexus opinion also applied to that condition. The Board has considered whether service connection may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's current neck disability and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Here again, the medical opinion evidence weighs heavily against the Veteran's claim as detailed above. Further, the Veteran's own private medical records and lay statements made to his providers are largely silent for complaint of neck pain for long periods of time after his service. As the November 2020 VA examiner noted, the Veteran's treatment records show that the Veteran sought treatment for neck pain following two post-service MVAs in 1993 and 2010. See November 2013 Welch Physical Training records indicating MVA in 2010). The Board acknowledges the Veteran's assertion that his most recent VA examination was inadequate in that it "didn't include a full evaluation," and that it only took "measure of my shoulder movement," and because "no other evaluative measures were accomplished." See February 2021 Supplemental Information statement. The Board notes that as part of its remand directives, it required that information about the VA examiner's qualification be included in the evidence of record. The clinician who conducted the Veteran's November 2020 examination is a physician noted to have 30 years of medical experience, who has received training specific to musculoskeletal examinations for VA compensation purposes. Measurement-taking is necessary for VA rating purposes of spine conditions, and is generally required for evaluation of many conditions, including those relating to the spine. Further, both the examiner who completed the in-person examination and the physician who provided a second medical opinion, included in their opinions the factual basis for their medical conclusions and provided adequate medical rationale for their determinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As such, the Board finds that the VA medical opinion evidence of record to be competent, credible, and probative evidence weighing against the Veteran's service connection claim on both direct and presumptive bases. (Continued on the following page.) Because the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 regarding reasonable doubt are not applicable and the Veteran's claim of entitlement to service connection for a neck disability is denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.