Citation Nr: 21028619 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-02 323 DATE: May 11, 2021 ORDER Entitlement to service connection for a neck disability, to include as secondary to a service-connected back disability is denied. FINDING OF FACT The Veteran's neck disability is not secondary to his service-connected back disability; and is not otherwise causally related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a neck disability, to include as secondary to a service-connected back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from August 1974 to August 1977. This matter comes before the Board of Veteran's Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Thereafter, this matter has been remanded on multiple occasions, to include in March 2019, November 2019, and April 2020. In determining that additional development was required, the Board noted that previous VA examinations in May 2012, July 2019, and December 2019 were inadequate. Specifically, the opinions failed to comply with prior Board remand directives, to include considering the Veteran's lay assertions regarding an onset of his symptoms, their severity, and the possibility of aggravation. Review of the record indicates that an additional VA examination was conducted in October 2020. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. §§ 3.303 (a), 3.304 (2020). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of 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 disease or injury incurred or aggravated during service (the medical 'nexus' requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2020). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2020). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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 evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the 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, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for a neck disability, to include as secondary to a service-connected back disability The Veteran contends that he is entitled to service connection for a neck condition, to include as secondary to service-connected disabilities. Specifically, the Veteran contends that his neck condition was secondary to his service-connected degenerative disc disease of the lumbar spine with intervertebral disc syndrome (IVDS). As discussed in more detail below, the preponderance of the evidence is against his claim. In analyzing the Veteran's claim, the threshold inquiry before the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of degenerative arthritis of the cervical spine, the preponderance of the evidence is against finding that it began during active service, or is otherwise causally related to an in-service injury, event, or disease to include as secondarily related to his service-connected lumbar spine disability. Service treatment records are silent for treatment or diagnosis of a cervical spine disability. In August 1974, a report of medical examination failed to show any evidence of a cervical spine abnormality at enlistment. The Veteran was deemed qualified for active service. A report of medical history indicated that he was in good health. No complaints of a neck pain were listed. At separation, the Veteran denied any change in his medication condition in June 1977. A physical examination revealed a normal cervical spine. Again, the Veteran stated that he was in good health. Post service treatment records document complaints of neck pain beginning on or about 2010. In November 2010, x-ray films revealed multilevel discogenic disease with associated spondylosis and bilateral foraminal stenosis. Four years later, a progression of symptoms was confirmed on repeat diagnostic testing. Specifically, in February 2015, x-ray films revealed multilevel cervical degenerative disc disease with marked foraminal stenosis from C4-C7 on the left side and moderate stenosis at C6-C7 level on the right side. Three months later, in May 2015, magnetic resonance imaging (MRI) documented congenital osseous canal stenosis and multi-level degenerative changes. Moderate central canal stenosis was observed at C6-C7 and mild to moderate symptomology at C5-C6. On examination in May 2012, a current diagnosis of degenerative cervical spine disease was identified. During the clinical interview, the Veteran reported involvement in a motor vehicle accident (MVA) during active service. Specifically, he states that an injury to his back and neck occurred after a truck he was driving (violently) struck a pothole. According to the Veteran, he was treated at sick call and prescribed oral medication to treat pain. He acknowledged that complaints of neck pain were not mentioned during the examination. Sometime later, an additional motor vehicle accident occurred due to a driver running a red light. The Veteran reported that he is currently unemployed. Post-service, he held a number of positions. They included work on a cleanup crew with a Union Camp for two years, as a lab technician for a couple years, and as a truck driver for multiple years. At present, the Veteran experiences neck pain rated as a 5 on a 10-point scale. Flare-ups of pain recur occasionally, with worsening symptoms impacting his low back. Prescribed treatments included physical therapy and oral medication. The Veteran indicated that his physical activity was limited to daily walking. He denied participation in any strenuous activities. Range of motion testing revealed flexion limited to 45 degrees, extension limited to 20 degrees, right and left lateral flexion limited to 20 degrees, right and left lateral rotation limited to 80 degrees. Evidence of pain was noted on examination. There was no evidence of additional functional loss on repetitive motion testing. Additional factors contributing to the Veteran's disability included pain with movement. There was no evidence of localized tenderness or pain to palpation. No guarding or muscle spasms were noted. Muscle strength testing yielded normal findings. There was no evidence of muscle atrophy or ankylosis. Deep tendon reflexes and sensation were normal. There was no evidence of radiculopathy or intervertebral disc syndrome (IVDS). The Veteran denied use of assistive devices. Diagnostic testing confirmed degenerative arthritis, with no evidence of vertebral fracture. X-rays of the cervical spine, dated November 2010, revealed multi-level discogenic disease with associated spondylosis and bilateral foraminal stenosis. The Veteran described a functional impact as stiffness in the neck, which often impacts the entire body and interferes with his reaction time. Following a review of the record, the examiner opined that it is less likely than not that the Veteran's cervical spine condition is causally related to active service. In support of the stated conclusion, the examiner indicated that there was no documented evidence that the Veteran suffered a neck injury during active service. During a Board hearing in October 2018, the Veteran reported involvement in an in-service truck accident in which he suffered an injury to his neck and back. Chronic neck and back pain persisted since separation. A suggestion of aggravation due to a post-service MVA while working for the city. The Veteran's wife reported personal knowledge of his complaints of symptoms since separation. A suggestion of secondary service connection due to his service-connected lumbar spine disability was also raised. Pursuant to a March 2019 Board Remand decision, the Veteran was afforded a new VA examination. On examination in July 2019, a current diagnosis of degenerative arthritis of the cervical spine was indicated. During the clinical interview, the Veteran reported an injury to the neck due to an MVA in which a truck he was driving slipped down a snow slope area during infantry training at an Alabama Military Base. Reportedly, he was treated for pain and returned to full duty. Thereafter, the Veteran reports receipt of treatment for neck pain, stiffness, and muscle spasms at Fort Stewart Military Base. A subsequent injury to the neck occurred in 1978 while playing flag football. Physical therapy treatments were unable to resolve or improve his pain. Post service, the Veteran was involved in an additional MVA in 1995. He suggested re-injury of his neck condition, to include increased stiffness and pain. Current symptoms include stiffness and pain with movement of the cervical spine. Lyrica was prescribed to treat pain. No flare-ups were reported. Functional loss was described as increased stiffness and fatigability with repetitive motion. Range of motion testing revealed forward flexion limited 40 degrees, extension limited to 40 degrees, right and left lateral flexion limited to 40 degrees, and right and left lateral rotation limited to 30 degrees. Abnormal range of motion itself, did not contribute to functional loss. Pain was observed on examination with extension, right and left lateral rotation. It did not result in functional loss. There was no evidence of pain with weight bearing, localized tenderness, or pain to palpation of the cervical spine. No additional loss of range of motion or functional loss was noted with repetitive use testing. No additional factors were listed as contributing to the Veteran's cervical spine disability. Neither pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability over time. He denied any experience with guarding or muscle spasms. Muscle strength testing revealed normal findings. There was no evidence of muscle atrophy or ankylosis. Deep tendon reflexes were normal. Sensation was decreased in the bilateral shoulder area. Favorable findings of radicular pain were described as mild intermittent pain in the bilateral upper extremities. Mild involvement of the C5-C6 nerve roots in the upper radicular group was noted, bilaterally. No neurological abnormalities were identified. There was no evidence of IVDS. The Veteran denied use of assistive devices. Prior diagnostic imaging confirmed arthritis. There was no evidence of a cervical vertebral fracture. The Veteran reported a functional impact as aggravation of his cervical spine disability due to increased pain, limited movement, repetitive twisting, and rotation. Considering the Correia factors, passive range of motion testing could not be performed. Following the clinical diagnosis, the examiner opined that it is less likely than not that the Veteran's cervical spine condition was caused by an in-service injury, event, or illness. In support of the stated conclusion, the examiner noted that service treatment records are silent for treatment or a diagnosis of a neck condition during active service. Similarly, there is no evidence of chronic symptoms between 1975-2015 when the initial diagnosis of degenerative arthritis of the cervical spine was rendered. Review of the available medical evidence was insufficient to determine a baseline level of symptom severity. Further, the examiner opined that the Veteran's neck condition was not aggravated beyond its natural progression as he maintained the ability to perform receptive use testing, with no evidence of ankylosis. Additionally, no nexus or secondary linkage was established between the Veteran's cervical spine condition and his service-connected back disability. In reaching the stated conclusion, the examiner noted that the available medical evidence failed to confirm a chronic diagnosis or suggest a correlation between the Veteran's neck and back conditions. In December 2019, an addendum opinion was prepared. Following a review of the record, the examiner opined that it is less likely as not (less than 50 percent probability) that the Veteran's cervical spine condition is secondary to or caused by any in-service injury or event. In support of the stated conclusion, the examiner noted an initial reference to a neck condition or related symptoms almost 30 years after separation. Prior to that period, there was no evidence of chronicity of care. The examiner suggested an inability to confirm a current chronic diagnosis in light of the available medial evidence. Therefore, no nexus or plausible secondary relationship could be established. Pursuant to an April 2020 Board Remand decision, the Veteran was afforded a new VA examination. On examination in June 2020, current diagnoses included degenerative arthritis of the cervical spine. During the clinical interview, the Veteran reported an onset of neck pain due to driving over the course of his military career. An initial onset of symptoms included discomfort in the neck when sleeping and rotating the head from side to side. Current symptoms include stiffness and aching in the neck. Flareups of pain recur 3-4 times per week and were mild to moderate in severity. After onset, symptoms persist for hours or days. Flare-ups were precipitated by certain movements. Rest and massage improved his symptoms. The Veteran described a functional impact as difficulty turning or rotating the head and neck. Range of motion testing revealed forward flexion limited to 40 degrees, extension limited to 40 degrees, right and left lateral flexion limited to 40 degrees, and right and left lateral rotation limited to 80 degrees. Abnormal range of motion itself, did not contribute to functional loss. Evidence of pain was observed with all ranges of motion. No pain was observed with weight-bearing. There was no objective evidence of localized tenderness or pain to palpation. Repetitive use testing contributed to an additional loss of range of motion of 5 degrees in all directions. Pain and lack of endurance were listed as additional factors causing functional loss. The noted symptoms caused a loss of range of motion of 10 degrees in all directions. There was no evidence of muscle spasms or guarding. Muscle strength testing revealed normal findings. There was no evidence of muscle atrophy. Sensation and deep tendon reflexes were normal. There was no evidence of radiculopathy, IVDS or ankylosis. No neurological abnormalities were identified. The Veteran denied use of assistive devices. Diagnostic testing confirmed degenerative arthritis. There was no evidence of a cervical vertebral fracture. The Veteran described a functional impact difficulty with repetitive motion, to include looking down and prolonged driving in excess of 1 hour. Considering the Correia factors, there was no evidence of pain with passive motion or non-weight bearing. Upon review of the medical evidence and the physical examination findings, the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's cervical degenerative arthritis is causally related to active service. Notably, there is no documentation of treatment or a diagnosis of neck condition during active service. It was also deemed less likely as not (less than 50 percent probability) that the Veteran's DJD of the cervical spine is proximately due to or the result of his service-connected lumbar spine condition as the lumbar spine does not directly affect the cervical spine. Moreover, there is no direct pathophysiologic relationship between the cervical spine and lumbar spine, nor are there any records showing such a relationship exists. An addendum opinion, dated July 2020, acknowledged review of the medical evidence and the Veteran's lay statements. Thereafter, the examiner opined that it is less likely than not ((less than 50 percent probability) that the Veteran's degenerative arthritis of the cervical spine is causally related to active service. In support of the stated conclusion, the examiner noted that service treatment records were silent treatment or diagnosis of a cervical spine condition during active service, or within one year of separation. Similarly, the examiner concluded that it is less likely as not that the cervical spine degenerative arthritis is caused by or aggravated beyond its natural progression by his service-connected low back disability, as the lower spine does not directly affect the cervical spine as there is no direct pathophysiologic relationship between a lower back condition and the cervical condition. The record is silent for any medical findings showing that such a relationship exists. As directed by an additional Board remand, dated November 2020, an addendum opinion was obtained. In November 2020, following review of the medical evidence and lay assertions of record, the VA examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's cervical spine disability was incurred in or caused by an in-service injury, event, or illness. In support of the stated conclusion, the examiner noted that service treatment records are silent for any complaints of a neck condition. Although a health record, dated October 1974, shows that the Veteran sought treatment for low back pain and a left ankle injury after playing football 48-hours earlier, no reports of neck pain were indicated. Post-service, a cervical spine X-ray report revealed multilevel cervical discogenic disease with associated spondylosis and bilateral foraminal stenosis in November 2010. This occurred decades after separation. Subsequent diagnostic testing revealed a progression of symptoms. Considering the above, the examiner noted that the initial cervical spine diagnosis was first rendered 33 years after separation. Therefore, it is less likely than not (less than 50 percent probability) that the Veteran's DDD of the cervical spine, DJD of the cervical spine and C5-C6 retrolisthesis was incurred in or otherwise causally related to active service. Similarly, the examiner concluded that it is less likely than not (less than 50 percent probability) that the Veteran's cervical spine condition is proximately due to or the result of his service-connected lumbar spine condition. In support of the stated conclusion, the examiner noted that DDD is a condition that involves weakening of one or more vertebral discs which normally act as a cushion between the vertebrae. The identified degeneration can occur anywhere in the spine and typically develops as a natural part of the aging process. An injury correlation is also possible. Generally, pain associated with DDD occurs near the location of the affected disc. Here, the Veteran experiences pain in the neck and arms. In contrast, a disc in the low back typically results in pain in the lumbar spine, buttocks, or legs. Although treatment records show evidence of both cervical and lumbar spine degenerative changes and document complaints of chronic pain, there is no available medical literature to support a finding that DDD of the cervical spine, DJD of the cervical spine and C5-C6 retrolisthesis can be caused by degenerative arthritis of the lumbar spine, or vice-versa. Moreover, there is no known direct causal linkage between the noted neck and back conditions. Accordingly, the Veteran's claimed DDD of the cervical spine, DJD of the cervical spine and C5-C6 retrolisthesis is less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected back disability. As for an opinion regarding aggravation, the examiner opined that it is less likely than not that the Veteran's cervical spine condition was aggravated beyond its natural progression by his lumbar spine condition. Although a baseline for the Veteran's symptomology could not be established with the available medical evidence, the examiner concluded that there was no basis to support a finding that the Veteran's cervical spine condition was aggravated by his service-connected back condition. Available treatment records note lay assertions regarding chronic neck pain due to degenerative arthritis of the cervical spine since 2010. However, there is no evidence of correlation between his cervical spine and service-connected lumbar spine conditions. As mentioned above, DDD of the cervical spine, DJD of the cervical spine and C5-C6 retrolisthesis has no direct causal linkage to a degenerative arthritis of the lumbar spine. Therefore, the Veteran's claimed DDD of the cervical spine, DJD of the cervical spine and C5-C6 retrolisthesis is less likely than not (less than 50 percent probability) aggravated beyond its natural progression by his service-connected back disability. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. Generally, the Veteran is presumed competent to report on the onset of his current symptoms, their impact on daily living and employment, and such reporting is deemed credible. However, in the absence of specialized training or medical experience, he is not competent to provide complex medical opinions or render related diagnoses. Moreover, the Board recognizes the recent ruling by the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018), that found "pain alone can serve as a functional impairment and therefore, qualify as a disability." In this case, service treatment records were silent for treatment or a diagnosis of a neck condition. Post-service treatment records show an initial reference to neck pain on or about 2010. X-ray films revealed multilevel discogenic disease with associated spondylosis and bilateral foraminal stenosis in November 2011. Four years later, diagnostic imaging confirmed symptom progression as evidence by multilevel cervical degenerative disc disease with marked foraminal stenosis from C4-C7 on the left and moderate stenosis at C6-C7 level on the right-side documented on x-ray films in February 2015. In November 2015, MRI findings revealed congenital osseous canal stenosis, multi-level degenerative changes of the discs. In this case, the Veteran has been afforded multiple VA examinations. Most recently, in November 2020. At that time, the VA examiner found no "nexus" between the Veteran's cervical spine condition and active service, to include as due to any in-service injury or as secondary to his service-connected lumbar spine condition. In support of the stated conclusion, the examiner noted the lack of evidence of in-service treatment for a neck injury or complaints of related symptoms. Post-service treatment records document symptoms beginning on or about 2010. Moreover, review of the medical literature fails so show a correlation between degenerative disc disease in the cervical spine and complaints of connective pain in neck and shoulders, with degenerative disc disease in the lumbar spine and connective pain in the low back, buttocks, and legs. While the Board recognizes the Veteran's subjective belief that he suffers from pain and degenerative changes in the cervical spine as casually related to active service, to include as secondary to his service-connected back disability, the evidence does not support his contention. In fact, the evidence is silent for a confirmed diagnosis of a cervical spine condition or complaints of symptoms until 2015; 30 years after separation. Moreover, the record suggests that the Veteran is a poor historian as there is no documentation of an in-service injury or MVA in which he suffered neck trauma. (Continued on the next page) Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for service connection for a neck disability, to include as secondary to a service-connected back disability must be denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.