Citation Nr: 21029096 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-40 692 DATE: May 12, 2021 ORDER Entitlement to direct service connection for a neck disability to include cervical spinal stenosis and degenerative disc disease (DDD) is denied. REMANDED Entitlement to secondary service connection for a neck disability to include cervical spinal stenosis and DDD is remanded. FINDING OF FACT The preponderance of the evidence is against finding that neck disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to direct service connection for neck disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 2000 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board issued a remand in November 2020 instructing the RO to make another attempt to obtain the Veteran's medical records from the Tulane Medical Center and VA Medical Center (VAMC) in Baton Rouge, Louisiana. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained medical records from the Tulane Medical Center and New Orleans VAMC. The Board finds the RO substantially complied with the November 2020 remand directives. Entitlement to direct service connection for neck disability. During the October 2019 Board hearing, the Veteran testified that his C3-5 had to be "replaced" in his neck three years prior at the Tulane VAMC, and that he now had a metal plate in his neck. However, he continued to experience pain in his neck. The symptoms varied when the weather changed. He stated that his duties in service required him to carry heavy armaments on his shoulder to move them from carrier to carrier. The armaments were so heavy that it would require two to three personnel to move them. This activity caused injury to his shoulder which the Veteran is service connected for. The Veteran believed that this activity also caused his current cervical spinal stenosis. The Veteran also stated that he did not receive treatment for his neck problems while in service from August 2000 to January 2004. He only received treatment for his dislocated shoulder. After service, he received epidural injections in his spinal cord when the was trying to be taken off tramadol. Once the surgery was done for the neck, he didn't have itchiness in his shoulder anymore. Service connection may be granted for a 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). Service treatment records (STR) lack any complaint, treatment, or diagnosis of a neck condition. Post-service treatment records show the Veteran has a current diagnosis of a neck condition, but it did not develop within one year after service. See e.g., July 2008 VA Primary Care Note (no complaint of neck pain; neck note to supple); April 2011 VA Primary Care Note (degenerative joint disease of the cervical spine). During a November 2012 VA examination, the Veteran reported that he underwent an MRI and was told he had arthritis of the neck. However, the examiner did not note a current diagnosis of a neck disability. The Veteran was afforded another VA examination in August 2020. The examiner confirmed the Veteran to have DDD and anterior cervical discectomy and fusion. The Veteran reported that his neck condition started in 2003 when he was doing an off load and was on ship at rough sea. He was handling weapons when he heard a crack in his neck. The examiner opined that the Veteran's neck condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner wrote that the Veteran had no complaints or prior history of neck condition noted on March 2000 enlistment examination. The STR did not show a complaint or treatment for neck condition. The examiner was unable to find any record of the Veteran being seen or treated for neck pain after being thrown down deck on ship. Veteran was noted to have had complaint of separated shoulder in January 2001 when he was thrown down on ship, but there was no mention of any neck injury or pain. The Veteran did not note any neck pain or neck condition on report of medical health assessment in December 2003, but he did note shoulder pain. An MRI from 2010 of the neck showed DDD and other degenerative changes, but this was noted to be 6 years after discharge from active service. Given the Veteran's medical history and findings on exam, the examiner was unable to establish a chronic neck condition that was either incurred or caused by active military service. The Board acknowledges the Veteran's assertion that his neck disability was related to his military service. However, a lay person is not considered competent to medically attribute neck disability to service as doing so to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the competent medical evidence of record answered the question and did not support a causal relationship between the Veteran's neck disability and military service. Overall, the evidence of record found that the Veteran's neck disability did not manifest within one year of service or start in service. There was no evidence of a complaint, diagnosis, or treatment of a neck condition or injury while in-service. The Veteran was diagnosed with DDD and spinal stenosis in 2010 which was nearly 6 years after discharge from service. In addition, the VA examination did not support a causal relationship between the Veteran's neck condition and his military service. Accordingly, the criteria for entitlement to service connection for neck disability have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to direct service connection for neck disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to secondary service connection for neck disability. The Veteran has alleged that his neck condition may be secondary to his service-connected shoulder condition. Post-service treatment records show the Veteran complained of pain in his neck that was commonly associated with his shoulder. See e.g., September 2010 VA emergency room note (pain in neck down to left arm); November 2010 VA Neurology Note (neck pain down to left arm). As the evidence indicates that he has a current disability that may possibly be associated with a service-connected disability, remand for a VA medical opinion is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). This matter is REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician to determine whether the Veteran's neck disability is secondary to his service-connected left shoulder disability. A copy of the claims file, including a copy of this remand, must be provided to the clinician for review. The clinician is asked to notate the claims file indicating that the record was reviewed prior to rendering an opinion. The clinician is also asked to render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's neck disability is secondary to (caused or aggravated by) his service-connected left shoulder disability. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely solely on the absence of evidence of in-service treatment or injury in the Veteran's service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. (Continued on the next page) 2. Thereafter, readjudicated the claim on appeal. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.