Citation Nr: 21030405 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-06 573A DATE: May 18, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. REMANDED Entitlement to an initial disability rating in excess of 50 percent prior to February 24, 2020, and a disability rating in excess of 70 percent thereafter for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran's cervical spine disability began during active duty service, was demonstrated to a compensable degree within one year of service, or is otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1971 to September 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2012 and October 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board last remanded the issues of entitlement to service connection for a cervical spine disability and TDIU in September 2019. Specifically, the Board remanded to afford the Veteran with an addendum medical opinion and obtain any outstanding private and VA treatment records. A review of the record shows substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the issue of entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD was denied by the Board in a September 2019 decision. The Veteran appealed the Board's denial to the United States Court of Veterans Claims (CAVC). During the pendency of the Veteran's appeal to the CAVC, the RO, in a May 2020 rating decision, granted the Veteran an increased rating to 70 percent effective February 24, 2020. In an October 2020 Order, the CAVC granted an October 2020 Joint Motion for Partial Remand (JMPR), vacating and remanding the Board's September 2019 denial of entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD. Specifically, the parties agreed that the Board failed to analyze the effects of the Veteran's suicidal ideation on his occupational and social functioning pursuant to Bankhead v. Shulkin, 29 Vet. App. 10, 21 (2017). Consequently, as the Board's September 2019 denial was vacated, the issue of entitlement to an initial disability rating in excess of 50 percent was last remanded by the Board in June 2018. As the increase granted in the May 2020 rating decision did not satisfy the appeal in full, the issue has been recharacterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). However, the Board finds that remand for this issue is necessary as discussed below. Entitlement to service connection for a cervical spine disability. The Veteran seeks service connection for a cervical spine disability. Specifically, the Veteran initially contended that he injured his neck in a motor vehicle accident in service in 1972. See January 2005 Statement in Support of Claim. The Veteran also contends that he experienced whiplash after entering an accident simulator machine that caused debilitating neck pain. See November 2012 Correspondence. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, such as arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) 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, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015). The evidence of record demonstrates the Veteran's complaints of neck and that he has been diagnosed with degenerative arthritis of the cervical spine, spondylosis, and cervical radiculopathy. See June 1984 and December 2019 private treatment records; April 2010 and May 2017 VA treatment records; January 2005, October 2018, and March 2020 VA examinations. Therefore, the Board finds that the first element of service connection has been met. See Shedden, 381 F.3d at 1167. As to the second element of service connection, event or injury in service, the Board finds that there was not an in-service event, injury, or disease. See Shedden, 381 F.3d at 1167. As an initial matter, the evidence of record does not show the Veteran's current cervical spine disabilities, including degenerative arthritis, were chronic in service or manifest to a compensable degree in service within one year of separation from service, nor has continuity of symptomatology been established. See 38 U.S.C. § 1101; 38 C.F.R. §§ 3.303, 3.309(a). In that regard, the Veteran's service treatment records are silent for treatment or diagnosis for any injury or symptoms related to his cervical spine. The Veteran's August 1973 separation examination does not indicate any symptoms or diagnoses related to the Veteran's cervical spine; his spine was clinically evaluated as normal and the Veteran did not report any such symptoms at the time of his separation. In April 2010, the Veteran reported neck for 30 years since discharged from surgery. See April 2010 VA treatment records. A February 1984 private treatment record demonstrates the Veteran's earliest complaints of neck pain. At that time, the Veteran reported that his neck pain began approximately 2.5 to 3 years prior. See February 1984 private treatment records. The Veteran was treated for neck pain and initially continued to report that his neck pain began in the early 1980's, more than 7 years after separation from service. See March and June 1984, and December 1994 private treatment records. As such, service connection cannot be established on a presumptive basis. See U.S.C. § 1101; 38 C.F.R. §§ 3.303, 3.309(a). The Board finds the Veteran's statements regarding the origin of his cervical spine disabilities, including the length of time he has suffered neck pain, internally inconsistent and inconsistent with other evidence of record. In making credibility determinations, the Board may consider factors such as facial plausibility, bias, self-interest, internal inconsistency of statements, and consistency with other evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Rather, the Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. See Fountain, 27 Vet. App. at 272. In this case, the Veteran initially asserted that he injured his neck in a motor vehicle accident in 1972 while on active duty service. See January 2005 Statement in Support of Claim. The Veteran later asserted that he experienced whiplash in a car accident simulator while in service that caused pain to his neck. See April 2010 VA treatment record; November 2012 Correspondence. However, around the time the Veteran first sought treatment for a neck disability, he reported that he had never been involved in an automobile accident and denied a history of trauma. See June 1984 private treatment records. Additionally, the Veteran's service treatment records do not indicate any accidents or injuries related to a car accident simulator. The Veteran's military occupational specialty was personnel specialist and there is no evidence in the record that demonstrates the Veteran's duties were consistent with being involved with a car accident simulator in service. In regard to the timing of onset of neck pain, the Veteran asserts that his neck pain began in service, was unable to receive any treatment for a neck injury because he was deployed to Vietnam, and that his neck pain has continued since service. See December 2019 private examination. However, as noted, the Veteran's private treatment records first indicate complaints of neck pain in February 1984 that began approximately 2.5 to 3 years prior, more than 7 years after his separation from service. Prior to February 1984, an October 1983 private treatment record notes the Veteran's cervical spine was normal, and a January 1984 private treatment record notes the Veteran did not have any musculoskeletal problem of the neck at that time. Moreover, the October 1983 and January 1984 private treatment records demonstrate reports of occipital pain rather than neck pain or any other symptoms related to his neck. Additionally, in December 1994, the Veteran reported that he experienced neck pain for the past 8 years; that his job involved some carrying of mail bags and trays of mail from time to time; and that he did not remember when his neck pain started or how it started. See December 1994 private treatment records. Thus, the Veteran's statements are internally inconsistent, not consistent with other evidence of record, and weigh against his credibility. See Caluza, 7 Vet. App. at 511. Therefore, the preponderance of the evidence is against a finding of an in-service incurrence and the second element of service connection has not been established. See Shedden, 381 F.3d at 1167. The Veteran was initially afforded a VA examination in January 2005. However, the Board finds the January 2005 VA examination inadequate for decision making purposes. For a medical opinion to be adequate, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Inadequate examinations and opinions include those that provide insufficient supporting rationale or contain only date and conclusions. Id. The January 2005 VA examiner noted the Veteran's long history of neck pain with radiation to the right arm and shoulder. See January 2005 VA examination. The VA examiner noted the Veteran had a diagnosis of cervical radiculopathy that is service-connected. Id. However, the VA examiner did not provide any rationale for the conclusion provided. As such, the Board determined in its June 2018 decision that the January 2005 VA examination was inadequate for decision making purposes and not entitled to any probative value. See Nieves-Rodriguez, 22 Vet. App. at 302. Similarly, in April 2010, a VA physician opined that the Veteran's cervical spine symptoms were at least as likely as not a consequence of an old whiplash neck injury suffered while in service. See April 2010 VA treatment records. However, the VA physician did not provide any rationale for the conclusion provided and the opinion was mostly based on the Veteran's report of being involved in an accident simulator in service. Id. As such, the Board determined in its June 2018 decision that the April 2010 VA treatment record was inadequate for decision making purposes and not entitled to any probative value. See Nieves-Rodriguez, 22 Vet. App. at 302. The Veteran was provided a second VA examination in October 2018. The VA examiner noted the Veteran's report that he experienced a jerking sensation in an accident simulator while in service but never complained about it. See October 2018 VA examination. The Veteran reported that he sought treatment for his neck in the 1980's. Id. The VA examiner opined that the Veteran's neck disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Id. As rationale, the VA examiner noted the Veteran's service treatment records did not show any evidence of an accident; the Veteran admitted he did not seek care; separation examination was silent for neck pain; and his neck pain started in the mid-1980. Id. The VA examiner noted she could not state that the Veteran's neck symptoms were from a simulator in service in the 1970s and other factors can cause chronic neck muscle tension which was the primary limitation of the Veteran's range of motion and cause of pain. Id. However, the VA examiner did not provide a sufficient rationale to support her conclusions and did not specify the other factors that caused the Veteran's chronic neck pain. In September 2019, the Board remanded the issue for an additional medical opinion based on a finding that the October 2018 VA examiner provided an inadequate rationale. As such, the Board finds the October 2018 VA examination inadequate for decision making purposes. See Nieves-Rodriguez, 22 Vet. App. at 302. The Veteran was afforded a third VA examination in March 2020. The VA examiner noted the Veteran's report that he injured his neck in a car accident simulator in 1972 while in service. See March 2020 VA examination. The VA examiner opined that the Veteran's condition was less likely than not caused by the claimed in-service injury, event, or illness. Id. As rationale, the VA examiner noted the Veteran did not complain or seek medical treatment in service for any symptoms related to his neck; the Veteran stated he did not experience any other neck injuries during service; and his separation examination was negative for the claimed condition. Id. The VA examiner noted the Veteran's examination confirmed a diagnosis for mild degenerative hypertrophic change which is related to aging and normal wear tear. Id. The VA examiner further noted neck jerking movement can not directly cause degenerative change. Id. The VA examiner noted review of the Veteran's VA e-folder and all available data and performed an in-person examination of the Veteran. Id. As such, the Board finds the March 2020 VA examination adequate for decision making purposes and entitled to significant probative value. See Nieves-Rodriguez, 22 Vet. App. at 302. In support of his claim, the Veteran provided a December 2019 private examination and medical opinion. The Veteran reported injuring his neck in an accident simulator in service; had ongoing neck pain since that time; and that he sought treatment as soon as he exited the military. See December 2019 private examination. The private examiner opined that the Veteran's degenerative joint disease and spondylosis of the cervical regions was as likely as not directly and causally related to his military service. See December 2019 private examination. However, the private examiner did not provide any rationale for the opinion provided. The private examiner relied on the Veteran's report that he sought treatment as soon as he exited military service; however, as noted, the first indication of the Veteran seeking treatment specifically for his neck was in February 1984. As such, the Board finds the December 2019 private examination and medical opinion inadequate for decision making purposes and not entitled to any probative value. See Nieves-Rodriguez, 22 Vet. App. at 302. The Board acknowledges the Veteran's statements; however, to the extent the Veteran asserts that he has a cervical spine disability etiologically related to his service, the Board notes that he has not been shown to have the medical training necessary to opine as to the nature and etiology of any cervical spine disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no competent evidence of record relating the Veteran's cervical spine disability to his active duty service. Moreover, the Board attaches more probative weight to the clinical findings and medical opinions provided in the March 2020 VA examination than to the Veteran's lay statements. As the Board finds the January 2005 VA examination, April 2010 VA treatment record, and December 2019 private examination inadequate, the Board concludes that the most probative and competent medical evidence of record does not establish that the Veteran's cervical spine disability is etiologically related to his active duty service, including the claimed in-service injury in an accident simulator. In sum, while there is a current diagnosis of a cervical spine disability, the preponderance of the evidence is against the claim for service connection, and the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 53 (1990). Accordingly, entitlement to service connection for a cervical spine disability is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to an initial disability rating in excess of 50 percent prior to February 24, 2020, and a disability rating in excess of 70 percent thereafter for service-connected PTSD is remanded. Remand is necessary for the issuance of a Supplemental Statement of the Case (SSOC). The agency of original jurisdiction must furnish the Veteran and his representative with an SSOC if, pursuant to a remand by the Board, it develops the evidence or cures a procedural defect unless the remand is to assemble records previously considered by the agency of original jurisdiction or the Board specifies that a SSOC is not required. See 38 C.F.R. § 19.31(c). As noted, the CAVC vacated and remanded the Board's September 2019 denial of the Veteran's claim for an initial disability rating in excess of 50 percent for service-connected PTSD. As such, the issue was last before the Board in June 2018 when the Board remanded the issue for additional development. The RO last adjudicated the issue and issued a SSOC in June 2019. Additional evidence relevant to the Veteran's claim was obtained by the RO and has been associated with the claims file since the June 2019 SSOC was issued, including VA treatment records received in November 2019 and July 2020; and an April 2020 VA examination. A March 2021 Board letter requested whether the Veteran wanted to waive review by the RO of the additional evidence associated with the claims file. The Veteran was informed that if such waiver was not received, the Board may have to remand the case to the RO and provided the Veteran with 45 days to respond. To date, no response has been received. Accordingly, remand is required for the issuance of a SSOC. See 38 C.F.R. § 19.31. Entitlement to a TDIU is remanded. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Here, the Veteran submitted a VA Form 21-8940 received by the RO in December 2016 in which the Veteran contends he is entitled to a TDIU based, in part, his service-connected PTSD. As such, the Veteran's claim of entitlement to a TDIU remains on appeal as part of his claim for increased ratings for his service-connected PTSD. The Veteran's claim for TDIU is therefore inextricably intertwined with the issue currently on appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, further consideration of the claim for a TDIU must be deferred and remanded. The matters are REMANDED for the following action: 1. Readjudicate the issues on appeal in light of all the additional evidence added to the record since the June 2019 SSOC. If any benefit sought on appeal is denied, the Veteran and his representative should be provided a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. P. Moore, 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.