Citation Nr: 21032559 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-35 744A DATE: May 27, 2021 ORDER Entitlement to service connection for cervical spine disability is denied. Entitlement to service connection for seizure disorder as secondary to cervical spine disability is denied. Entitlement to service connection for right lower extremity neuropathy as secondary to cervical spine disability is denied. Entitlement to service connection for left lower extremity neuropathy as secondary to cervical spine disability is denied. FINDINGS OF FACT 1. The Veteran's cervical spine disability clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated by service. 2. The most probative evidence does not establish that the Veteran's seizure disorder is at least as likely as not related to an in-service injury, disease, or event or secondary to a service-connected disability. 3. The most probative evidence does not establish that the Veteran's right lower extremity neuropathy is at least as likely as not related to an in-service injury, disease, or event or secondary to a service-connected disability. 4. The most probative evidence does not establish that the Veteran's left lower extremity neuropathy is at least as likely as not related to an in-service injury, disease, or event or secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for seizure disorder to include as secondary to cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 3. The criteria for service connection for right lower extremity neuropathy as secondary to cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 4. The criteria for service connection for left lower extremity neuropathy as secondary to cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to November 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or diseases existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111, 1137. See VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. However, aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In Wagner, supra, the Federal Circuit described the framework for analyzing a claim involving 38 U.S.C. § 1111 in conjunction with the provisions of 38 U.S.C. § 1153 as follows: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress" of the preexisting condition. Id. In deciding whether a condition preexisted service, the Board must consider the veteran's medical history, accepted medical principles, evidence of the "basic character, origin and development" of the condition, and "lay and medical evidence concerning the inception, development and manifestations" of the particular condition. 38 C.F.R. § 3.304(b)(1), (2). The term "clear and unmistakable evidence," as used in 38 U.S.C. § 1111, has been defined as evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999) (citing the definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). To be eligible for disability compensation, however, it is not enough for a Veteran to show that he incurred a disease or injury while in service; she must also show that he has a present disability and that there is a nexus between that disability and her in-service injury or disease. Stover v. Mansfield, 21 Vet. App. 485, 490-93 (2007); Shedden, 381 F.3d at 1167. In each case where a Veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, and the Veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. 38 C.F.R. § 3.159. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board."). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for cervical spine disability The Veteran contends that his cervical spine disability that existed prior to service was aggravated while in service. A review of the enlistment examination does not show that the neck condition was noted by the Veteran. Thus, the presumption of soundness attaches to the issue on appeal herein. VA must therefore prove by clear and unmistakable evidence that both (1) the Veteran's disease or injury pre-existed service, and (2) that the disease or injury was not aggravated by service. 38 U.S.C. § 1111. A review of the record, including service treatment records (STRs) from June 1974 documents no report of cervical spine disability in a pre-enlistment medical history self-report, although he later claimed during a November 1974 Medical Board report during his discharge from the military that the military recruiter told him during enlistment that he should not list his pre-service neck injury. The examiner noted that since enlistment, the Veteran has experienced low neck and upper back pain; and it had not been relieved by symptomatic therapy. The diagnosis was healed compression fracture C7 with residual deformity, which existed prior to service. The examiner noted that it is the opinion of the Medical Board that maximum benefits of treatment have been achieved and the above diagnosis is appropriate. The Medical Board further opined that the Veteran may have been recruited in error and the question of fraudulent enlistment had not been considered. The Medical Board considered that the Veteran did not meet the minimum standards for enlistment or induction as set forth in AR40-501, Chapter 2 and that the member is unfit for further military service by reason of physical disability and the physical disability was neither incurred in, nor aggravated by, a period of active military. The Medical Board recommended that the Veteran be discharged from the military. An August 2014 VA examination documents current cervical spine disability. Indeed, degenerative disc disease of the cervical spine was diagnosed, and the examiner indicated that the disability began in 2014. In a March 2016 opinion, Dr. J.B.B. M. indicates that he has treated the Veteran since 2015 and that the prior C7 injury could have contributed to the current degenerative disease of his cervical spine. As degenerative diseases are brought about by a breakdown in the normal architecture of the spine, a prior injury, coupled by further wear and tear and the normal aging process, could precipitate, or aggravate the said condition. Regarding the first part of its analysis of the presumption of soundness, the Veteran reports that he incurred a cervical spine injury prior to service. The Veteran is competent to describe his incident and any associated treatment and symptoms. Further, the Medical Board examiner found that the Veteran's neck disorder preexisted service. Accordingly, the Veteran's neck disability clearly and unmistakably preexisted service. The Board finds the medical evidence of record considered collectively to date is competent and credible and shows that the Veteran's cervical spine disability was clearly and unmistakably not aggravated as a result of his military service. Although the private opinion indicates that the Veteran's current cervical spine degenerative disease could have been due to the C7 spine injury, the Medical Board found that the Veteran's cervical spine disability that clearly and unmistakably existed prior to service enlistment, was not aggravated by the Veteran's military service. Further, the cervical degenerative disc disease was shown in 2014, several decades following service discharge. Additionally, the Medical Board also noted that the Veteran may have been recruited in error and the question of fraudulent enlistment had not been considered. Although the Veteran is competent to report to the persistence of lay-observable symptoms of his cervical spine disability, he is not competent to relate any current cervical spine disability to temporally remote physical conditioning exercises in service, as to do so requires expertise as a medical practitioner in the appropriate field, which the Veteran has not claimed to possess. Based on the foregoing, it is clear and unmistakable that the Veteran's current cervical spine disability pre-existed service and was not aggravated by service. There was no increase in the pre-existing disability shown during service. Thus, entitlement to service connection for cervical spine disability is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for a cervical spine disability, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for seizure disorder to include as secondary to cervical spine disability 3. Entitlement to service connection for right lower extremity neuropathy as secondary to cervical spine disability 4. Entitlement to service connection for left lower extremity neuropathy as secondary to cervical spine disability The Veteran asserts that his seizure disorder and bilateral lower extremity neuropathies are due to service, or in the alternative, secondary to his cervical spine disability. Regarding secondary service connection, as noted above service connection for cervical spine disability is not warranted, thus the secondary service connection claims lack legal merit, and the appeals are denied based on this theory. See 38 C.F.R. § 3.310. Regarding direct service connection, the STRs show no complaints of or treatment for a seizure disorder or bilateral lower extremity neuropathy. He has not indicated that his disabilities were due to service but were due to his chronic cervical spine disability. The Board concludes that, although the Veteran currently has a seizure disorder, as well as bilateral lower extremity neuropathies, the preponderance of the evidence weighs against finding that the claimed disabilities began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. § 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Indeed, post-service treatment records show treatment for a seizure disorder beginning in 2001 and treatment for bilateral lower extremity neuropathies in 2014. There is no evidence in the post-service treatment records that his disabilities are related to an in-service event, injury, or disease. Considering all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran's claim. As noted above, although he is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.