Citation Nr: 21032880 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-03 122 DATE: May 28, 2021 ORDER Entitlement to service connection for degenerative arthritis and degenerative disc disease of the cervical spine is granted. Entitlement to service connection for a lung disorder is denied. FINDINGS OF FACT 1. The Veteran's degenerative arthritis and degenerative disc disease of the cervical spine is linked to an injury incurred in active service. 2. The Veteran's lung disorder is not linked to an injury or disease incurred in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative arthritis and degenerative disc disease of the cervical spine have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a lung disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1968 to December 1969 and from April 1975 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2014 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2019. A transcript is of record. This matter was previously remanded by the Board in July 2019 for further development. The Board notes that the issue of entitlement to service connection for a low back disability was previously on appeal. Service connection for lumbar spine degenerative disk disease, spondylolisthesis and retrolisthesis, spinal stenosis, spondylosis and lipomatosis was subsequently granted in a July 2020 rating decision. The establishment of service connection represents a full grant of the benefit sought on appeal; therefore, that issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for degenerative arthritis and degenerative disc disease of the cervical spine is granted. Service connection means that a Veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). See also 38 C.F.R. § 3.303 (a). For the VA-defined chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, if the chronic disease manifested in service, then subsequent manifestations of the same chronic disease at any date after service - no matter how remote - will be entitled to service connection without having to satisfy the medical nexus requirement, unless clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1338. If the evidence is not sufficient to establish chronicity of the disease at the time of service, then a continuity of symptoms after service must be shown to grant service connection under this relaxed evidentiary provision. Id.; Walker, 708 F.3d at 1338-39 (observing that a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period"). In addition, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for VA-defined chronic diseases, including arthritis, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307 (d). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran asserts that he developed a neck disability after falling 12-15 feet from the top of a radio rig in service, landing on his buttocks in a sitting position with his neck snapped back. See October 2014 Correspondence, see also March 2020 VA Examination. Additionally, the Veteran provided that he has experienced symptoms related to his neck since his in-service injury and that he also sustained a bowling injury during his active service. See February 2019 Hearing Transcript. The Veteran's service treatment records dated in January 1978 show his complaints of upper back pain intermittently for one year. The Veteran is currently diagnosed as having degenerative arthritis an degenerative disc disease of the cervical spine. On VA examination in April 2020 VA examiner found that the Veteran's cervical spine disorder was less likely than not related to service. However, his opinion is contradicted, in part, by his rationale. For example, the examiner stated that it is difficult to track the etiology of spinal disease and severity of spinal disease as some with degenerative changes may not be symptomatic and others with symptoms may not show definitive changes with some imaging, as soft tissue injury and inflammation can have a great effect on symptoms but may not be well-documented in imaging. Further, the examiner stated that degenerative changes may have their roots in traumatic injury, as well as aging. The examiner acknowledged that the Veteran referred to having neck pain after a 12 to 15 foot fall in 1976 and continuing until the present. While noting that the first mention of neck issues was in 2002 (23 years after discharge), he also noted that the Veteran was diagnosed with degenerative disc disease of the cervical spine with herniated discs at age at 34 years which is sooner than most. He went on to state that, "Degeneration can also be related to sustained, repetitive movements; as he worked as a painter due to his back disease, it may be related to this more properly than the actual traumatic injury though it may have had a predisposition to develop if there was inflammation caused by the trauma. There is evidence of current, chronic and continuous treatment and care." The RO asked the April 2020 VA examiner to offer an addendum opinion, in order to clarify the examiner's statement about a prior traumatic injury's ability to predisposition a development of degenerative disc disease if there was inflammation caused by the trauma, as well as the examiner's statement that there was evidence of current, chronic, and continuous treatment and care. A different examiner offered an addendum opinion in November 2020 and stated that, "While a neck condition was not diagnosed during service it is plausible based on the reported mechanism of the fall that the veteran sustained whiplash or a cervical strain which affects the ligaments and/or muscles in the neck. Degenerative disc disease is age related chronic wear and tear of the spinal discs. It is less likely than not that the singular muscle/ligament strain is the cause of the veteran's degenerative changes of the cervical discs." The Board finds this opinion to lack probative value as the examiner did not address the diagnosis of degenerative arthritis of the cervical spine or the prior statement concerning current, chronic and continuous treatment and care. The Veteran is competent to report his in-service experiences and in-service and post-service symptoms. There is no evidence that he is not credible in this regard. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Although the April 2020 VA examiner found that the Veteran's cervical spine disorder was not related to service, his rationale actually supports a connection between the Veteran's current cervical spine disorder and his in-service injury. Based on the forgoing, there is probative evidence of a current cervical spine disability, probative evidence of an in-service neck injury, and resolving all doubt in favor of the Veteran, a nexus between his current cervical spine disorder and his in-service injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Board thus finds that service connection for a cervical spine disability is warranted. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. 2. Entitlement to service connection for a lung disorder is denied. The Veteran asserts that he developed a lung disability in service. Specifically, he testified that he was hospitalized for a week in basic training with an upper respiratory infection (URI) that continuously got worse. See February 2019 Hearing Transcript. The Veteran testified that these symptoms began in service and have been continuous since. The Veteran was diagnosed with chronic obstructive pulmonary disease (COPD) in 2007 and with emphysema in 2016. See March 2020 VA Examination. The Veteran's service treatment records show complaints of a chest cold in September 1969, chest congestion in December 1975, and complaints of chest congestion in June 1976. On VA examination in May 2020, the examiner found that the Veteran's lung disorder was less likely than not related to service. The examiner noted that minor weakening of the lungs likely occurred during service, documented in the service medical records with treatment of various recurrent URIs. Further, the examiner noted that there was evidence of recurring acute treatment and care of URI symptoms such as cough and sputum production in the Veteran's early records which might have included bronchitis which is an acute, limited inflammation of the lungs though the in-service record does not specifically state this. The examiner noted that the Veteran was treated for these types of symptoms during his time of service, and that there was one episode of bronchitis noted in his post service records in 2016. While the examiner indicated that chronic bronchitis can lead to changes in the lung parenchyma and pulmonary vasculature causing pathologic changes of COPD, he stated that this occurs over long time periods and diagnosis is often not until the fourth decade or later. However, the first mention of bronchitis in 2016 in the Veteran's record was noted in his sixth decade. The examiner went on to state that the Veteran's 50-year plus, 3/4 pack per day tobacco smoking was very likely to have exacerbated and accelerated any lung changes as cigarette smoking clearly has been shown to be the major environmental risk factor predisposing to the development of COPD. The examiner explained that COPD (including emphysema) occurs over time with multiple insults to the lungs. He stated that it was likely the Veteran had some lung damage affecting his capacity during service, though to what degree was not documented and could be very minor. The examiner concluded that it was the chronic cigarette smoking which most likely caused significant lung damage and was the cause of the COPD, noting that there was no objective evidence in his records after service to indicate that the recurrent, acute lung conditions during service were primarily responsible for the COPD or emphysema, whereas cigarette smoking is well known to be a strong risk factor for developing COPD. The May 2020 VA medical opinion is probative, as it represents the conclusion of a medical professional based on review of the Veteran's pertinent medical history, and is supported by an explanation that is sufficient for the Board to make an informed decision. In short, while acknowledging that the Veteran had some lung damage affecting his capacity during service, the examiner ultimately concluded that it was his chronic cigarette smoking which most likely caused significant lung damage and was the cause of his COPD. Accordingly, the Board finds that a medical nexus has not been established between the Veteran's current lung disability and a disease or injury incurred in active service, including the in-service lung infections. Rather, the preponderance of the evidence weighs against such a link. Accordingly, the criteria for service connection for a lung disorder are not satisfied. See Holton, 557 F.3d at 1366. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Mohammad 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.