Citation Nr: 21029916 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 14-10 184 DATE: May 17, 2021 ORDER Service connection for a cervical spine condition is denied. REMANDED The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) due to the Veteran's service-connected disabilities is remanded. THE VETERAN'S CONTENTIONS The Veteran contends that she was a wheeled vehicle mechanic during service, which is a highly physical job that required carrying and maintaining tool boxes, handling all of the hand tools and pneumatic tools, crawling in and out of vehicles, changing tires, conducting oil and fluid changes, handling electrical issues with vehicles, and being able to hook up and tow vehicles. See May 2021 Written Brief Presentation. The Veteran's representative requests an independent medical opinion be obtained and that the Veteran's military occupational specialty (MOS) be taken into consideration in relation to her physical disabilities. Id. The Veteran testified that she injured her neck when she hit her head during service. See January 2017 Board hearing transcript, p. 11; see also May 2021 Written Brief Presentation. She explained that she hit her head twice during service, first with an M-16 rifle on the right side in May 1988 and second on her bunk in June 1988. See May 2021 Written Brief Presentation. She stated that these head injuries affected her neck and that it is a natural reaction to jerk away or move quickly when hit in the head by an object or by the sudden stopping that occurred when she hit her head on the bunk. Id. The Veteran also noted that she slipped on ice in 1993 and complained of cervical and thoracic pain. Id. She testified that she took medication, which she viewed as being for both her neck and back; and that her neck pain continued to bother her over the years since her injury. See January 2017 Board hearing transcript, p. 11. She also contends that her neck injury is secondary to her service-connected lumbar spine and head injuries due to years of compensating and overuse. See February 2014 VA Form 9; April 2012 notice of disagreement; October 2011 statement in support of claim. The Veteran also seeks entitlement to TDIU. See January 2015 Decision Review Officer (DRO) hearing transcript. She asserts that her cervical spine, lumbosacral spine, and left knee disabilities prevent her from working. See May 2014 and January 2018 Veteran's Application for Increased Compensation Based on Unemployability; see also January 2018 and March 2014 statements in support of claim. She reported that she last worked as a truck driver in November 2011 and that she has two years of college education. See January 2018 Veteran's Application for Increased Compensation Based on Unemployability. She stated that after treatment and surgery, her doctors advised her that she could no longer drive long haul or do any other type of employment that could have an effect on her long-term. Id.; see also January 2015 Decision Review Officer (DRO) hearing transcript, p. 4. She also asserted that she is unable to work due to being on muscle relaxers for her disabilities. See January 2015 DRO hearing transcript, p. 5. She testified that she was unable to work as a truck driver as the lifting, vibrations, turning the truck, and moving things out of the trailer was too much for her. See January 2017 Board hearing transcript, p. 7. FINDING OF FACT The Veteran's cervical spine conditions did not have their clinical onsets during service, and the evidence of record does not demonstrate that they are otherwise related to an in-service injury or disease, or to a service-connected condition. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1988 to August 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and January 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference in January 2017. These matters were previously before the Board and remanded in November 2017, April 2020, and December 2020. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). As an initial matter, the Board acknowledges that the Veteran had cervical spine disabilities during the appeal period, to include degenerative arthritis of the spine, intervertebral disc syndrome, cervical disc disease, and radiculitis. See April 2019, February 2018, and October 2014 Disability Benefits Questionnaires (DBQs). Further, a January 1993 service treatment record (STR) shows that the Veteran complained of cervical and thoracic discomfort in service after falling on her back and that on follow up treatment in February 1993 the Veteran's "C-T spine [was observed to be] tender to palpitation." The STRs also document that in June 1988, the Veteran hit her head on a bunk and that she had previously been hit on the head with an M-16 rifle. Service connection currently is in effect for lumbosacral strain and migraine headaches. In April 2007 the Veteran underwent VA examination for migraine headaches and lumbosacral strain. At that time, she noted that her headache attacks included neck pain. On lumbar spine examination in October 2011, the Veteran noted that pain traveled from her neck to her lower back. The Veteran next underwent VA cervical spine examination in October 2014, as a result of which the examiner determined that the Veteran's cervical spine conditions were not proximately due to or the result of the Veteran's service-connected low back condition; and that the cervical spine conditions were separate conditions that she likely acquired due to a trauma or injury. The examiner did not provide an opinion regarding whether the Veteran's cervical spine condition was incurred in service or whether it had been aggravated by her service-connected conditions. A February 2018 VA examiner diagnosed spinal fusion, degenerative arthritis of the spine, and cervical disc disease. At the time of that examination, the Veteran reported that her neck symptoms began in 2010. The examiner did not provide a nexus opinion. An April 2019 VA examiner provided a negative nexus opinion in regard to direct service connection. The examiner determined that it was less likely than not that the Veteran's cervical spine disability was caused by or related to falling on ice in 1993 and/or being struck in the head on several occasions in service. He also opined that it was less likely than not that the Veteran's cervical spine disability had its clinical onset during active service or within one year of separation from active service. Further, he opined that it was less likely than not that the Veteran's cervical spine disability was caused by, related to, or permanently aggravated beyond natural progression by her service-connected lumbosacral strain with mild L5-S1 degenerative disc disease or her service-connected migraine headaches. An April 2020 VA examiner also determined that the Veteran's cervical spine disability was not incurred in or caused by service, or secondary to her service-connected migraine headaches or her service-connected lumbosacral strain with mild L5-S1 degenerative disc disease. See April 2020 DBQs. However, as it appeared that neither the April 2019 nor August 2020 VA examiner specifically considered the Veteran's complaints of cervical discomfort and tenderness to palpitation noted during service, an additional medical opinion was ordered pursuant to the December 2020 Board remand directives. In March 2021, a VA clinician reviewed the medical records and determined that the Veteran's cervical spine conditions were less likely than not incurred or caused by the claimed in-service injury, event, or illness. The clinician specifically acknowledged the January 1993 STR showing the Veteran's complaints of cervical and thoracic discomfort after falling on her back and the February 1993 STR showing that the "C-T spine became tender to palpitation." The examiner acknowledged and considered the Veteran's lay statements regarding the chronic nature of her neck problems, but determined that the STRs did not demonstrate that the issues with the Veteran's neck were chronic in nature after February 1993 or immediately post-separation from service, as neither additional complaints nor treatment were noted. As such, the examiner determined that it would be speculative to relate the current cervical spine conditions to injuries that appeared to be self-limited during service. He also determined that the Veteran's cervical spine conditions were not caused or aggravated by her service-connected migraine headaches or lumbar spine condition. See March 2021 DBQs. The examiner explained that although migraine headache pain may feel as though it extends to the neck, migraine headaches in and of themselves do not cause neck bone degeneration, spinal stenosis, or necessitate fusion surgery for IVDS; the conditions are medically distinct, etiologically. Significantly, there are no contrary competent medical opinions of record, and for this reason, the Board considers the March 2021 opinion evidence to be the most probative evidence on the question of whether the Veteran's current cervical spine conditions are related to service, including to a service-connected disability. The only contrary evidence of record is the Veteran's contentions. However, there is no evidence in the record indicating that the Veteran is qualified to provide a medical diagnosis or opinion. While the Veteran, as a lay person, is competent to provide evidence regarding the symptoms she observed, she is not competent to offer an opinion as to the etiology of her cervical spine conditions as this matter falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Based on the foregoing, the Veteran's claim of entitlement to service connection for a cervical spine condition is denied. REASONS FOR REMAND To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Currently, the Veteran's combined disability rating is 50 percent, and none of her disabilities are independently rated more than 20 percent disabling. Accordingly, she does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). However, TDIU may still be assigned on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Where this is warranted, the claim must first be referred by the AOJ to the Director, Compensation Service for extraschedular consideration. As the Veteran is currently not working, and she contends that her service-connected lumbosacral spine and left knee conditions contribute to her inability to work, the issue of entitlement to TDIU must be remanded for referral to the Director, Compensation Service for extraschedular consideration. The matters are REMANDED for the following action: Refer the issue of entitlement to TDIU to the Director, Compensation Service for extraschedular consideration. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.