Citation Nr: 21032471 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 13-17 228 DATE: May 27, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. REMAND Entitlement to service connection for a brain aneurysm, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The Veteran's cervical spine disability did not manifest during service and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from January 1989 to June 1995, and from October 2008 to September 2009. The Veteran was a member of the National Guard from April 1995 to August 2010. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a hearing in April 2019. A transcript of the hearing has been associated with the claims file. As a way of background, in August 2019 the Board denied the Veteran's claim for entitlement to service connection for a cervical spine disability and remanded the claim for entitlement to service connection for a brain aneurysm. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In September 2020, the Court issued a Joint Motion for Partial Remand (JMPR) and vacated and remanded the Board decision regarding entitlement to service connection for a cervical spine disability. As such, the claim has been returned to the Board for further action. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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 (Fed. Cir. 2004). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty, or form a myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during that training. 38 U.S.C. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (c), (d). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any State, under 32 U.S.C. §§ 316, 502, 503, 504, 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(3). Here, the National Guard records show that the Veteran was activated under Title 32 from August 30, 2005 to October 10, 2005 in response to Hurricane Katrina. See December 2016 Military Personnel Record. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for a cervical spine disability is denied. After a review of the record, the Board finds that the criteria for service connection have not been met as the preponderance of the evidence is against a finding that the Veteran's cervical spine disability is casually or etiologically related to an in-service event, injury or disease. At the outset, the Board notes that the Veteran does not have a formal diagnosis of a cervical spine disability. However, in the April 2019 hearing, the Veteran stated that due to neck pain he is unable to perform some yard work or lift heavy equipment. The Veteran reported that he has a "pressure" on his cervical spine to the top of his skull. Despite the Veteran's testimony, in an October 2011 VA treatment record, the Veteran was negative for neck pain and neck stiffness. See June 2018 CAPRI. In a June 2013 VA treatment record, the Veteran was again negative for neck pain or neck stiffness. See June 2018 CAPRI. In a January 2020 VA treatment record, the Veteran denied having any neck pain and an x-ray scan of the cervical spine was normal. The Board finds that as the Veteran claimed that he has neck pain and has functional limitations due to his neck pain, in the light most favorable to the Veteran, the Veteran has some functional impairment due to cervical pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (United States Court of Appeals for the Federal Circuit has held that pain that causes functional impairment is a disability for VA compensation purposes even if there is no underlying diagnosis). As such, the first element of service connection has been met. Concerning the second element of service connection, a review of the service treatment records shows that in May 2000 the Veteran was involved in a motor vehicle accident during inactive duty training (INACDUTRA). See April 2013 Military Personnel Record. The Veteran was treated at Scott and White (S&W). Although the Veteran complained of neck stiffness and tenderness, on examination the Veteran had a full range of motion of his neck. See December 2016 VA 21-526b, Veteran Supplemental Claim. The Veteran was diagnosed with whiplash. In a May 2000 follow-up visit, the Veteran was diagnosed with cervical strain as an x-ray scan of the cervical spine revealed normal findings. See April 2014 STR Medical Photocopy and September 2012 CAPRI. In a June 2000 follow-up visit, the Veteran's cervical pain remained the same even though he exhibited a full range of motion of the cervical spine. See December 2016 VA 21-4176 Report of Accidental Injury in Support of Claim for Compensation. As such, the Board concedes that the second element of service connection, an injury during INACDUTRA, has been met. As for the third element, the Veteran was afforded a VA examination in November 2011. In the examination, the examiner opined that the Veteran's neck disability is less likely than not incurred in or caused by the claimed in-service injury. The examiner explained that although the Veteran was involved in a motor vehicle accident in 2000, the records show that the Veteran's whiplash was improving. Further, since 2000 there are no records that the Veteran had continued neck or cervical spine pain with treatment. The examiner referenced an October 2011 treatment record wherein the Veteran did not complain of any neck or cervical pain or exhibit a limited range of motion. Based on the foregoing, in August 2019 the Board denied the Veteran's claim for entitlement to service connection for a cervical spine disability. The Veteran appealed the decision to the Court. In the September 2020 JMPR, the Court stated that the Board failed to adequately support its reliance on the November 2011 VA medical opinion especially considering that the Veteran attested that his doctors just blew his complaints off as the Veteran did not have a diagnosis. As such, the Veteran claimed that he 'just kind of lives with it and moves on.' The Court directed that the Board should determine whether the August 2012 statement (cervical injury still gives him problems to this day) and April 2019 testimony warranted a new medical opinion as the VA examiner relied on the lack of continuous symptoms and treatment after the in-service motor vehicle accident to support the negative opinion. The Court further noted that the evidence submitted after the November 2011 medical opinion provided reports of continuing symptoms and an explanation for the absence of medical treatment records. The Board finds that a new medical opinion is not warranted in this case as the Board finds that the Veteran's statements that he has had neck pain since service are not credible. The Veteran testified at his hearing that he received treatment for his neck at S&W and at VA. He started going to S&W in 1997/1998 and to VA in 2011. When asked if he had provided all S&W records to VA, he replied that he had. The Board notes that records from S&W dated from 2000 (when MVA occurred) to the present are of record, as are VA records dated from 2011 to the present. Thus, all identified lay and medical evidence has been associated with the claims file. After reviewing the evidence, the Board concludes that the medical evidence is more probative, and concludes that the medical evidence does not support the Veteran's lay statements, and in fact contradicts his statements. A review of these records shows that about ten years after the June 2000 service treatment record, in an October 2011 VA treatment record, the Veteran presented with a chief complaint of bilateral knee pain since he was in the military. He was new to VA treatment. His systems were reviewed, wherein it was noted that under "neck," he was negative for neck pain and neck stiffness. Notably, upon physical examination, his neck was supple with no thyromegaly, bruit, or jugular veous distention. Following physical examination, the assessment was bilateral knee pain, blurred vision, right hand numbness, and HLD. See June 2018 CAPRI. In a June 2013 VA treatment record, the Veteran presented with a history of present illness noted as lower back pain and aneurysm in 2005. A review of his systems was again negative for neck pain or neck stiffness. Following physical examination, the assessment was low back pain, tobacco (will try with Nicotine gum and Zyban), ETHO (will reduce), status post aneurysm surgery in 2005, and borderline hyperlipidemia. See June 2018 CAPRI. Despite the Veteran's assertions, the treatment records are void of any complaints of neck pain until April 2019, about ten days after the Veteran attested to neck pain in the April 2019 hearing. Even then, the Veteran stated that he had neck pain for only about six months. See November 2019 CAPRI. The Veteran did not state that his neck pain persisted since service. Moreover, in a January 2020 VA treatment record, the Veteran again denied having any neck pain, but did report developing left elbow pain around 2011 and chronic low back pain. An x-ray scan of the cervical spine was normal. On examination, the Veteran's cervical spine was nontender with good range of motion. See August 2020 CAPRI. As such, the Board affords little probative value to the Veteran's statements that he has had neck pain since service, as the records reflect that he specifically denied neck pain when asked if such was present, and upon physical examination, cervical pain was not noted or reported until 2019. The Board concludes that if he had reported cervical pain, such would have been recorded, as other reports of pain, such as elbow, back and knee pain, were noted in the treatment records. Similarly, the Veteran's assertions that his doctors just "blow it off" because he does not have a cervical spine diagnosis, are not supported by the record. The Veteran testified that he has received private treatment for his cervical spine since his May 2000 motor vehicle accident. However, the Board finds the Veteran to be an inaccurate historian. Specifically, the records show that the Veteran sought treatment for his cervical pain in May 2000 and June 2000 and the last treatment for neck pain was on June 4, 2000. See March 2015 Medical Treatment Record Non-Government Facility. On June 14, 2000, the Veteran still had follow-up visits for his back pain. No neck pain was noted. In fact, on examination, the Veteran's neck was noted to be supple. The Veteran did not seek treatment for a neck pain until 2019. See November 2019 CAPRI. Between 2000 and 2018, both VA and S&W records reflect that the Veteran sought treatment for his brain aneurysm, abdominal pain, headaches, low back pain, and other impairments but not for cervical-related pain. Additionally, as noted above, the treatment records show that when asked about a neck condition the Veteran denied having neck pain. It stands to reason that if the Veteran had neck pain, such would have been noted during one of his examinations especially when he had an x-ray scan of the cervical spine. The Veteran's lay statements are further contradicted by an October 2011 VA treatment record wherein the Veteran was negative for neck pain and neck stiffness. See June 2018 CAPRI. In a June 2013 VA treatment record, the Veteran was again negative for neck pain or neck stiffness. See June 2018 CAPRI. The treatment records are void of any complaints of neck pain until April 2019, about ten days after the Veteran attested to neck pain in the April 2019 hearing. Even then, the Veteran stated that he had neck pain for only about six months. See November 2019 CAPRI. The Veteran reported that his neck pain manifested about six months prior to April 2019 and not since service. Accordingly, the Board finds the Veteran to be an inaccurate historian and provides his lay statements little probative value. The Board acknowledges the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. In this case, however, the Board finds that except for the one-time complaint of neck pain in April 2019 and his statements to the Board, the Veteran consistently denied having any symptoms of neck related pain despite having opportunities to endorse neck pain. Had he been experiencing ongoing problems related to his neck pain the Board finds it reasonable to conclude that the Veteran would have reported these problems when specifically questioned, rather than explicitly denying any related problems. Instead, when questioned as to the onset of his neck pain the Veteran reported that his neck pain occurred about 6 months prior to his April 2019 examination. See November 2019 CAPRI. As the medical evidence and even the Veteran's statements are inconsistent with the Veteran's claim that his neck pain persisted since service, the Board finds that the Veteran is not credible. See Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, and desire for monetary gain); see also Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Board does not find it credible that the Veteran reported cervical complaints to doctors and they ignored him because the doctors did not find any objective evidence of cervical disability. It defies logical that a doctor would simply ignore a patient's repeated assertions of pain of any kind. Further, as referenced above, the Veteran's statements are contradicted by the more probative evidence of record that reflects instances when the Veteran denied cervical pain when asked, and endorsed pain in other areas such as his elbow, knees, and lower back. As the Board does not find credible the Veteran's assertions that he has complained of cervical pain and systems since service, or that his doctors have "blown off" his complaints, the Board finds the November 2011 VA examiner's opinion is based on an accurate factual premise and another VA examination or opinion is not required. The Board affords great probative value to the November 2011 VA examiner's assessment as it is well supported by, and is consistent with, the most probative evidence of record. The most probative evidence of record reflects that although the Veteran had an in-service neck related injury, it eventually resolved. Despite the multiple opportunities to endorse neck pain, the Veteran consistently denied having neck pain and only reported having neck pain recently since 2019. In conclusion, the preponderance of the evidence establishes that his cervical spine disability was not manifested during service and is not otherwise related to his active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Thus, the claim is denied. REMAND 2. Entitlement to service connection for a brain aneurysm, to include as secondary to service-connected PTSD, is remanded. The Veteran reported that while serving in New Orleans during Hurricane Katrina he started getting minor headaches. See August 2012 VA 21-4138 Statement in Support of Claim. The Veteran stated that his headaches increased in severity. About 25 days after coming off active duty orders, the Veteran started to get severe headaches which eventually led to his aneurysm. See April 2019 Hearing Transcript. The Veteran attested that he worked long hours during the search and rescue mission during Hurricane Katrina which he believed led to a strain in his brain. The Veteran also advanced an argument that his service-connected PTSD may have caused his brain aneurysm. In August 2019, the Board remanded the issue to address the August 2005 to October 2005 Hurricane Katrina search and rescue mission as it relates to the Veteran's brain aneurysm. The Veteran attested that his headaches started during Hurricane Katrina and within 30 days after this mission he had a brain aneurysm. In response to the April 2019 Board remand, a new VA examination was obtained. In January 2020, the examiner diagnosed the Veteran with a 2005 intracranial aneurysm. The examiner determined that there was no evidence for a need to escalate care, evaluation or prescription for residuals of a 2005 brain aneurysm. The January 2020 examiner opined that the Veteran's brain aneurysm is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran's brain aneurysm occurred in November 2005. The Veteran reported non-specific headache during 45 day active duty tour for Katrina relief as part of Texas Army National Guard. The Veteran was released in October 2005. The Veteran's headache worsened and was associated with right III cranial nerve symptoms and had intra-cranial aneurysm coiling. All studies since are stable without recurrence or residual. The Veteran's cerebral artery aneurysms are most likely congenital weakness of the artery wall, sustained serious hypertension, and vascular arteriosclerotic damage. The examiner noted that the Veteran did not have hypertension or vascular arteriosclerotic damage in 2005. As such, the examiner concluded that the Veteran's brain aneurysm is most likely congenital weakness of the artery wall. The examiner also opined that the Veteran's brain aneurysm is less likely than not proximately due to or the result of the Veteran's service-connected PTSD. The examiner explained that cerebral artery aneurysms are most likely congenital weakness of the artery wall. PTSD is not a significant etiologic factor in long term sustained hypertension. The Board requests clarification of the opinion as reflected in the Remand directives below. The matter is remanded for the following action: Obtain an addendum to the January 2020 VA opinion with regard to the claim for residuals of a brain aneurysm. (a) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the brain aneurysm had its onset in service or is otherwise etiologically related to service. (i) The examiner must address and consider the Veteran's argument that the stress and long hours during a search and rescue mission during Hurricane Katrina (August to October 2005) caused his brain aneurysm. (ii) The examiner should consider whether the stress from his duties during Hurricane Katrina caused or aggravated the congenital weakness of the artery wall. (b) The examiner must also state whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran's brain aneurysm was (i) caused by or (ii) has been aggravated(worsened beyond the natural progress of the disorder) by his service-connected PTSD. (iii) The examiner should consider whether the stress from his PTSD caused or aggravated the congenital weakness of the artery wall. The examiner is reminded that the standard does not require that worsening be permanent worsening. In answer to each question and sub-question, please explain why or why not. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.