Citation Nr: 21032650 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-04 392 DATE: May 27, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's cervical spine disability was shown as chronic in service, manifested to a compensable degree within the applicable presumptive period; nor is continuity of symptomatology established; and the disability is not otherwise etiologically related an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1988 to September 1988; from April 7, 2000, to April 24, 2000; and from October 2006 to July 2007, with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) as a Reservist in the U.S. Air Force. In February 2013, a Decision Review Officer (DRO) hearing was held at the Regional Office (RO). In June 2016, the Veteran testified at a Travel Board hearing before a Veterans Law Judge who is no longer employed by the Board. The Veteran was notified of this fact and offered the opportunity for a new hearing, but declined. In September 2016, the Board issued a decision in this matter, which the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2018 Order, the Court granted a joint motion for partial remand (JMPR) and vacated the part of the Board's September 2016 decision that denied service connection for a cervical spine disability, and remanded that issue to the Board for action consistent with the terms of the JMPR. In January 2019 and in August 2020, the Board remanded this matter for further development. Entitlement to service connection for a cervical spine disability. The Veteran contends he has a cervical spine disability related to service. He essentially asserts that prior to and during his deployment to Iraq in late 2006, he sustained injuries as a result of training maneuvers and combat skills training that resulted in lower left neck/cervical spine disabilities. He contends he has had lower left neck/cervical spine symptoms since that time in 2006. Service connection may be granted for 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 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The question for the Board is whether the Veteran has a current cervical disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current cervical disabilities, including degenerative arthritis, degenerative disc disease (DDD), cervical strain, and cervicalgia, and he competently reports cervical symptoms started after doing training maneuvers in service in late 2006, including from wearing body armor and doing low crawl maneuvers, the preponderance of the evidence weighs against finding that he has a cervical disability that began during service, was manifested to a compensable degree within one year of service, or is otherwise etiologically related to an in-service injury, event, or disease. Moreover, such a condition was not noted in service with attributable continuity of symptomatology. Private records during the Veteran's third period of active service include a June 2007 treatment record from Iowa Methodist Medical Center, which shows that the Veteran reported he recently returned from service in Iraq and that during that time, he developed left upper chest discomfort along his chest wall and initially had pain the chest wall radiating into the shoulder and ring and small fingers. The Veteran thought it was probably related to his Kevlar vest and the motion that he had to endure while wearing the vest, and explained that he did a lot of physical activity in the vest and was slowly improving since getting out of the vest. The assessment was chest wall discomfort secondary to Kevlar vest. A July 2007 treatment record from Norwalk Physical Therapy shows the Veteran was referred due to chest and shoulder pain. He reported his pain began in November when training to go to Iraq, and that the training involved falling to the ground from a standing position while holding his gun, and that each time he fell onto his left elbow or shoulder. He reported numbness, tingling, and aching into his left hand and fingers. He indicated he then went to Iraq for six months and had to regularly wear a vest that irritated his chest and shoulder which were already injured. He reported that as of six weeks ago, the numbness and tingling into his arm went away and he continued to improve. He would be off active duty within a week, and considered canceling his appointment due to improvement in symptoms, but wanted to learn techniques to increase his strength and to prevent recurrence of symptoms. The diagnosis was left pectoral strain and numbness and tingling. Post-service records include an October 2007 Health History Questions/Interval History form in which the Veteran wrote that he pulled a muscle in his chest, neck, and shoulder area in approximately May, June, and July 2007, but that he was feeling better. An August 2008 Post-Deployment Assessment was silent for any complaint of neck/cervical spine pain. VA treatment records show that in September 2010, the Veteran reported he had neck (and shoulder) problems from his deployment and had to go to chiropractors and physical therapy. He stated it inhibited the work he did as a heavy machinery crane operator and that he had difficulty turning his head. In December 2010, VA first received the Veteran's claim of entitlement to service connection for a neck disability. On a VA examination in January 2011, the Veteran exhibited limited cervical motion and it was difficult for him to look up and turn his neck from side to side. He reported his symptoms began in late 2006, but stated there was no specific injury. He believed his pain was cumulative in the neck and left shoulder. X-rays of the cervical spine were normal other than a possible muscle spasm. There was no acute bone or joint abnormality in the cervical vertebral column. The examiner indicated that cervical radiculopathy was unlikely. In an April 2012 statement, the Veteran stated that his left shoulder and neck injuries were due to falling on the ground during military training and that the vest, rifle, and gear were all added weight that he had to catch when falling on his left elbow. He stated that since then he had had shoulder and neck problems. In an April 2012 statement a fellow service member, MSgt S. C., stated that during training at Fort McCoy, the Veteran told him he had problems doing the low crawl. S.C. believed that continued training and low crawling resulted in the Veteran injuring his neck. S.C. stated that the training was physically demanding, and many airmen complained of sore muscles, sprains, and other injuries. In an April 2012 statement another fellow service member, SMSgt S.B.C., stated he was assigned to combat skills training with the Veteran in October/November 2006 at Fort McCoy, and that during training, the Veteran told him he had problems doing the low crawl. S.B.C. believed that continued training and low crawling resulted in the Veteran injuring his neck, and indicated that the Veteran told him, as NCOIC, while out processing, that he had problems with his neck. A January 2013 private treatment shows that the Veteran was seen for neck pain. A March 2013 private treatment record noted MRI results showing a C5-6 disc bulge. A June 2013 private treatment record shows that an MRI of the Veteran's cervical spine revealed a diagnosis of cervical radiculitis. In July 2013, he received a cervical epidural steroid injection for his cervical radiculitis. In a January 2014 record, it was noted that the Veteran was seen for pain in the neck, as well as the shoulder and arm. He reported that while serving in the National Guard in Iraq, he was wearing a 50-pound ballistics vest and fell during a training episode in November 2006. He reported he was evaluated by the company medic and placed on daily anti-inflammatories. It was noted that shoulder pain continued to bother him in July 2007, and it was thought he had strain to the shoulder, but a VA MRI scan in March 2012 showed a bulging disc with nerve root impingement at C6. In a January 2017 statement, the Veteran's wife's, M.L., stated that since returning from Iraq in 2007, the Veteran complained of shoulder and neck pain that radiated down into his arms/fingers. In a November 2020 VA neck (cervical spine) conditions disability benefits questionnaire (DBQ), the diagnoses included degenerative arthritis of the cervical spine. For medical history, the Veteran reported his cervical spine condition began in November 2006 from a fall injury, and that he experienced a headache, stiff neck, and aching, after the fall, and he currently experienced constant ache, stabbing pains, headache, cervical radiculopathy, twitching, and numb fingers. The Board finds, in view of the foregoing, that the Veteran's current cervical disability did not have its onset in service or within one year of service, and a cervical condition was not noted in service with attributable continuity of symptomatology. Turning to the question of whether a current cervical disability is otherwise related to active service, including the Veteran's reported in-service injury from wearing body armor and doing low crawl maneuvers, the Board notes the record contains conflicting medical opinions on this issue. In a November 2020 VA medical opinion DBQ, the examiner concluded there was no documentation of a neck condition prior to military service, and that there was no radiographic evidence to support that cervical disc bulges or DDD were clearly and unmistakably present prior to active military service. Further, the examiner opined that the Veteran's cervical condition was not related to service. In the rationale, the examiner concluded it was less likely than not that the Veteran's cervical DDD was caused by the reported muscle strain during service. The examiner noted that a strain of the musculature surrounding the cervical spine might cause myofascial pain, but did not contribute to the development of DDD, and that cervical degeneration was a normal part of aging, which starts early on in the second decade of life. The examiner explained that the first stage of the natural degenerative process of the cervical spine occurs between the ages of 15 to 45 years old, and the second stage may occur between the ages of 35 to 70 years old, and that as the discs lose water content, they can become less compliant, leading to decreased disk height and collapse. The examiner indicated that cervical disc degeneration was a naturally occurring age-related phenomenon, and that the prevalence of cervical DDD increased with age, and that while aging was the primary contributor, some environmental and genetic factors could predispose individuals to developing cervical DDD. The examiner again emphasized that inflammation of the musculature surrounding the cervical spine might cause myofascial pain, but did not contribute to the development of DDD; that wearing body armor might cause musculoskeletal pain, but did not contribute to cervical degenerative changes; and that low crawl maneuvers might contribute to musculoskeletal pain, but did not increase the weight bearing load of the cervical spine, contributing to the development of degenerative arthritis. The Board finds the VA examiner's opinion to be highly probative, because it is based on a review of the claims file and an accurate medical history, and provides an explanation with clear conclusions and supporting data, including addressing the development of DDD and arthritis, in relation to the Veteran's competent reports of in-service injuries from wearing body armor, doing low crawl maneuvers. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). On the other hand, in a February 2021 record from CIA Norfolk FM, the private provider noted that with regard to the Veteran's continued difficulty with cervical radiculopathy and cervical disc disorder, the causative agent of his neck discomfort appeared to be DDD. The private provider opined that the cervical disc bulge at C6 "as likely as not could be connected to injuries sustained while in military service in November 2006". This document was signed by a certified medical assistant, K.D.O., as well as Dr. W.C. The Board, however, finds this private opinion to be less probative than the VA examiner's 2020 opinion as there is no indication that K.D.O. or Dr. W.C. reviewed pertinent medical evidence in the claims file or provided supporting rationale for the opinion. Moreover, the opinion is speculative as it is in framed in terms of "could be connected", and therefore, may not be considered probative. The Board gives more probative weight to the 2020 VA examiner's opinion. (Continued on the next page) The Board acknowledges the Veteran believes his cervical disability is related to an in-service injury from wearing body armor and doing low crawl maneuvers. He also contended he had a left shoulder disability as a result of injuries in service, and a January 2021 rating decision, granted service connection a superior labral tear of the left shoulder with AC joint arthritis that was incurred in service. However, while the Veteran's report of in-service injury from wearing body armor and doing low crawl maneuvers is credible, and he is competent to report having experienced cervical symptoms, including pain, since service, he is not competent, as a lay person, to provide a diagnosis in this case, or determine that these symptoms were manifestations of cervical disability, or to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board assigns more probative weight to the 2020 VA examiner's opinion. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Casula 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.