Citation Nr: 21040025 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 14-15 673 DATE: July 2, 2021 ORDER 1. Entitlement to service connection for degenerative arthritis of the cervical spine is granted. 2. Entitlement to service connection for residuals of an in-service electrical shock injury other than migraine headaches, peripheral neuropathy, and complex regional pain syndrome, to include Gastroesophageal Reflux Disease (GERD) is denied. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran has likely experienced a continuity of symptomology related to degenerative arthritis of the cervical spine since his period of service. 2. The probative evidence of record demonstrates that the Veteran's GERD did not originate in service or for many years thereafter, is not related to any incident during active service and is not caused or aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lumbar spine disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for the establishment of service connection for GERD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to July 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran, his spouse, and a coworker provided testimony before the undersigned Veterans Law Judge at a June 2017 videoconference hearing. A complete copy of the hearing transcript has been associated with the claims file. In a January 2018 decision, the Board denied entitlement to service connection for degenerative changes of the cervical and thoracolumbar spine and granted entitlement to service connection for migraine headaches as a result of electrical shock. The Veteran perfected a timely appeal to the United States Court of Appeals for Veteran Claims (Court). In January 2019, pursuant to a December 2018 Joint Motion for Partial Remand (JMPR) by the Veteran and the VA (the parties), the Court vacated the January 2018 Board decision, to the extent that it denied entitlement to service connection for degenerative changes of the cervical and thoracolumbar spine, and failed to consider the issue of entitlement to service connection for residuals of an in-service electrical shock injury, other than migraine headaches, and remanded the matters back to the Board for compliance with the instructions in the JMPR. These matters were last before the Board in March 2021 when the issues were remanded for evidentiary and procedural development. With respect to degenerative arthritis of the cervical spine, the March 2021 remand directives sought to obtain an updated VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current degenerative changes to the cervical spine are etiologically related to his active duty service. Concerning the claim for residuals of electric shock injury in service, the March 2021 directives requested an addendum opinion determining whether the Veteran's GERD is etiologically related to his active service, or service-connected complex regional pain syndrome. While there has not been substantial compliance with the remand directives regarding the claim for degenerative arthritis of the cervical spine, in light of the favorable decision below, the Board finds no prejudice to the Veteran in proceeding with a decision at this time. 1. Entitlement to service connection for degenerative changes of the cervical spine The Veteran seeks entitlement to service connection for a cervical spine disorder. He contends that he injured his entire spine during service, and he has continued to experience low back pain since then. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds, for the following reasons, the evidence of record demonstrates that the Veteran's current diagnosis of degenerative arthritis of the cervical spine likely began during his period of active service. 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). The Veteran contends that his current cervical spine disorder had onset during service when a 400-pound hatch door (also known as a bird cage) fell on top of him causing pain to his cervical and thoracolumbar spine. The Veteran finally reported that he experienced re-occurrences of cervical and back pain over the years and has managed his pain with over the counter medications and chiropractic treatments. Service treatment records show a June 1985 record which notes the Veteran's report of pain, numbness, and a tingling sensation to the posterior right lateral aspect of neck due to a 400-pound hatch door dropping sharply on the posterior aspect of the right shoulder. In support of his claim, the Veteran submitted statements from his wife who attested that the Veteran injured his neck and back during service due to what he told her was "a piece of jet falling on him." She further reported witnessing the Veteran's recurrent neck pain since service, and his treatment of such pain with pain medication for more than 25 years. While no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience neck pain since his period of service. Private treatment records from 2010 indicate a history of neck pain. Due to the Veteran complaints, a c-spine MRI was performed revealing degenerative changes on the right commented on with some mild foraminal narrowing. The Veteran submitted a medical nexus statement from two private physicians, Drs. D.T. and J.B, which indicated that the Veteran has a diagnosis of thoracic degenerative disc disease that is possibly the result of a 1986 military accident. No further rationale was provided. See May 2010 Non-Government Medical Treatment Record. The Board finds this private medical nexus opinion too speculative to support an award of service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (noting that a speculative opinion is not legally sufficient to establish service connection). At the April 2011 VA examination, the examiner declined to link the Veteran's cervical spine disability to the Veteran's active duty service because the evidence showed no accident or illness related to the Veteran's cervical spine while on active duty, and due to the fact that the evidence demonstrated a post-service cervical spine injury. The Board has reviewed the electronic claims file, but has been unable to identify the post-service cervical spine injury referenced by the VA examiner. Accordingly, the April 2011 VA examiner's opinion in inadequate because it is based on an erroneous factual premisemainly that the Veteran experienced a post-service neck injury; a contention that is not accurately supported elsewhere in the record. A June 2012 private opinion noted a diagnosis of cervical disc disease caused by injury received while in the United States Marine Corps. The private physician explained that the Veteran has taken medication, physical therapy, and injections to ease his pain over the years. The Board finds this opinion to be limitedly probative. Although the opinion lacks rationale and cannot be used to establish service connection, it does support the Veteran's report that he has experienced neck pain since service. The Veteran submitted another private opinion in December 2016. A Dr. D.T. indicated that the Veteran has had progressive worsening entire back pain since an airplane platform fell on his upper back during his active duty service. Probative value is afforded this opinion as it lends credibility to the Veteran's report of continued neck pain since service. The Veteran was afforded a VA examination for his cervical spine disability in February 2020. The examiner confirmed a cervical spine diagnosis of degenerative arthritis of the cervical spine, and concluded that that the Veteran's cervical spine disability is less likely incurred in or caused by service. The rationale noted the lack of medical nexus establishing causality between current complaint and military service. The examiner opined that no residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service. The examiner further highlighted the fact that the Veteran was not medically discharged from the military due to any back and neck pain, and service medical records evidence that Veteran was medically qualified to complete his active duty tour. The March 2021 Board found the February 2020 VA examination inadequate as it failed to address the Veteran's lay statements concerning the onset of his cervical spine pain, and his report of continuing neck pain since his in-service injury. The Board agrees with this determination. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Pursuant to the March 2021 remand, an addendum opinion was requested from the same examiner who provided the February 2020 opinion. The examiner once again confirmed a diagnosis of degenerative arthritis of the cervical spine, and again declined to link the Veteran's cervical spine disability to his active duty service. See April 2021 VA Examination. The rationale explained that no residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service. The examiner additionally explained that the Veteran was not medically discharged from the military as a result of his in-service injury, and service medical records indicate the Veteran was medically qualified to complete his active duty tour. Lastly, the examiner highlighted the fact that the Veteran was diagnosed with degenerative arthritis in 2020-23 years after military service. The Board finds this opinion to be inadequate for two reasons. One, the examiner once again failed to specifically address the Veteran's lay assertion that he has experienced neck pain since his in-service injury. Finally, the Board finds the rationale is based on an inaccurate factual basis. Specifically, the examiner noted the first diagnosis of degenerative arthritis of the cervical spine in 2020- 23 years after military service. This opinion is not supported by the medical evidence of record. In fact, private treatment records from April 2010 reveal a degenerative cervical arthritis diagnosis after a c-spine MRI was provided. The Veteran is competent to report that he experienced symptoms of neck pain during service period, and that he has sought medicinal and chiropractic treatment for recurrent neck problems since service. The Veteran's statements are credible and are entitled to probative weight, as they are internally consistent and consistent with private and VA treatment documentation in the years after his separation from service until present. Moreover, given the inadequacy of the April 2011, February 2020, and April 2021 VA negative opinions, there is no contrary opinion that addresses the issue of continuity of symptomology. Therefore, based on the foregoing, the Board finds that service connection is warranted for cervical spine degenerative arthritis. 1. Entitlement to service connection for residuals of an in-service electrical shock injury other than migraine headaches, peripheral neuropathy, and complex regional pain syndrome, to include Gastroesophageal Reflux Disease (GERD) is denied. The probative evidence of record demonstrates a current diagnosis of GERD, however, there is no evidence of this disability during the Veteran's active service, no evidence indicating this disability is related to the Veteran's active service, including his in-service electrical shock injury, and no evidence indicating this disability was caused or aggravated by any service-connected disability. The STRs are wholly absent of any complaints, treatment, or findings of GERD. The post-service medical evidence, including private and VA medical records, demonstrates that GERD was initially diagnosed many years after the Veteran's separation from active service. Finally, there is no probative medical evidence indicating the Veteran's GERD is related to his active service or to a service-connected disability. In a May 2019 VA examination, the Veteran was diagnosed with GERD. The examiner found that it was less likely than not that GERD began or was caused by service. The rationale explained that the medical records reveal that the earliest diagnosis of GERD is in 2018, and per chart review, there is no documentation of any evaluation or treatment of his GERD in relation to his electrocution while in service. A medical opinion based solely on the absence of documentation in the service treatment records (STRs) or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). As such, the May 2019 VA examination report is inadequate and cannot be used to determine service connection. An October 2020 VA examiner opined that based on the medical evidence of record, the Veteran's GERD is less likely than not incurred in or caused by the claimed in service injury, event, illness, or treatment with medications. The examiner explained that the Veteran's GERD is related to hiatal hernia, a structural abnormality that contributes to GERD, and that upon review of the Veteran's medication list, his GERD is not attributed to any medication he's taking for his nerve condition myositis. The Board also finds this opinion to be inadequate as it failed to adequately address whether the Veteran's GERD is etiologically related to an in-service electrical shock injury, as contended by the Veteran. Moreover, the October 2020 opinion failed to assess whether the Veteran's GERD was related to his service-connected complex regional pain syndrome. A May 2021 VA addendum opinion concluded that the Veteran's GERD was less likely than not incurred in or caused by injury in service. The rationale found "there is no evidence of GERD while in service, including separation examination which is negative for GERD. Service treatment records indicate the Veteran answered RMH which was specifically negative for frequent indigestion, the hallmark of GERD. Even if the electrocution event is conceded, there is no evidence of GERD arising from that event. Any neuromuscular event/regional pain syndrome occurring due to electrocution would have been evident at that time or proximate to it, and certainly by separation. GERD is not diagnosed until 2016, per the EGD dated May 2016. GERD itself was not specifically diagnosed at this time, but antral gastritis and hiatal hernia. Nonetheless, neither of these were present during service or at separation or for a span of 20 plus years. Therefore, it is less likely than not that the claimed GERD is due to or incurred in events in service, including the claimed electrocution event. This includes antral gastritis and hiatal hernia diagnosed at EGD in 2016. It is more likely than not that these conditions arose well after service, in or around 2016. Electrical shock/electrocution has not been associated with GERD, Hiatal hernia, or antral gastritis. There is no evidence of any neuromuscular sequelae to the claimed shock. The veteran's regional pain syndrome would not cause GERD as it is no physiologic or anatomic connection." The Board finds this opinion to be highly probative as it is thorough, and provided by a medical professional with consideration of the specific facts in this case. The Board has considered the Veteran's claims that his GERD was caused by his in-service electrocution injury, or in the alternative, secondary to his medication for complex regional pain syndrome. While a Veteran is competent to report treatment and symptoms of a disorder, he is not competent to diagnose or medically attribute any in-service symptom or incident to a current disorder. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). With respect to these statements regarding the etiology of GERD, such would constitute medical conclusions, which the Veteran is not competent to make as a lay person and thus these statements are afforded no probative value. See Jandreau, 492 F.3d at 1377; Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). (Continued on the next page) In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine, however, as the preponderance of the evidence is against the Veteran's claim for service connection for GERD that doctrine is not applicable in the instant appeal. See 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). Therefore, the Veteran's claim for service connection for GERD is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.