Citation Nr: 21029066 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-15 065A DATE: May 12, 2021 ORDER Service connection for disability of the cervical spine is denied. A temporary total rating for disability of the cervical spine based on treatment necessitating convalescence under the provisions of 38 C.F.R. § 4.30 is denied. FINDINGS OF FACT 1. Disability of the cervical spine 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 weight of the competent evidence is against a finding that the disability had its onset in service or is otherwise related to an in-service injury or disease. 2. The Veteran was not service connected for a disability of the cervical spine at the time of his 2014 cervical spine surgery. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for disability of the cervical spine have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an award of a temporary total rating for disability of the cervical spine based on treatment necessitating convalescence have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1971 to July 1974, to include service in Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In September 2019 and January 2021, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See March 2021 supplemental statement of the case. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, 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); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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 (1990). 1. Service connection for disability of the cervical spine is denied. The Veteran seeks to establish service connection for a cervical spine disability. In his September 2014 notice of disagreement, he reported injuries to his neck while performing maintenance on aircraft, and as a result of an in-service car accident in 1973. In his April 2016 substantive appeal, he reported being involved in two in-service car accidents. At the March 2019 Board hearing, he reported that while repairing an aircraft, an explosion shook the hangar where he was working and he fell off of a helicopter. He also reported an in-service motor vehicle accident. The question for the Board is whether the Veteran has a current disability of the cervical spine that began during service or is at least as likely as not related to an in-service injury or disease. There is no dispute that the Veteran has a current disability of the cervical spine. In January 2014, he underwent cervical discectomy and fusion. In a June 2016 letter from the Veteran's private provider, Dr. M.A. noted that the Veteran had spinal cord compression at C3-C6 with significant residual quadriparesis. A January 2020 VA examination report noted diagnoses of cervical myopathy and degenerative joint disease (DJD). As to whether there is a nexus, or a link, between the Veteran's current disability and service, the Board notes that his service treatment records contain no complaints of, treatment for, or diagnosis of a cervical spine disability. A July 1974 service separation examination report reflects a normal clinical evaluation of the spine. The Veteran submitted a July 2019 statement from a private physician, M.A., indicating that the Veteran had a disability of the cervical spine that began or was permanently aggravated during service. Unfortunately, no rationale was offered for that conclusion. As such, the opinion is inadequate to support an award of service connection. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that an opinion without any rationale against which to evaluate the probative value of his determination is inadequate). A February 2021 VA examiner opined that the Veteran's cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided a thorough review of the Veteran's assertions regarding his reported injuries. The examiner noted that the Veteran was involved in a motor vehicle accident in June 2006, with complaints of neck pain, but concluded that the Veteran's degenerative arthritis of the neck was responsible for his continued pain. The examiner explained that the Veteran's symptoms worsened after a July 2012 motor vehicle accident. The examiner concluded that even though there was trauma from a motor vehicle accident prior to 2012, the Veteran's chronic neck pain was due to degenerative arthritis that results from aging and that his current neck condition is due to the 2012 motor vehicle accident followed by surgery in 2014. The Board finds that the February 2021 VA examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes that his cervical spine disability is related to service. However, he is not competent to provide a nexus opinion in that regard. The issue is medically complex, as it requires knowledge of the musculoskeletal system and the development of cervical spine myopathy and DJD with spinal cord compression decades after service separation. 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); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the February 2021 VA examiner's opinion. The Veteran's cervical spine DJD, which is a form arthritis, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the 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. There is otherwise no competent and probative evidence that the Veteran's current cervical DJD was manifested to a degree of 10 percent or more within one year of separation from service, or that it is otherwise related to service. As such, service connection on a direct and presumptive basis is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the appeal of this issue must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 2. A temporary total rating for a cervical spine disability based on treatment necessitating convalescence under the provisions of 38 C.F.R. § 4.30 is denied. Under 38 C.F.R. § 4.30(a), temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. In this case, as service connection is not warranted for a cervical spine disability, as discussed above, a temporary total rating under the provisions of 38 C.F.R. § 4.30 based on cervical spine surgery must also be denied as a matter of law. Because the law is dispositive on this matter, the claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.