Citation Nr: 21041344 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-22 086 DATE: July 8, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability to include generalized anxiety disorder is remanded. FINDING OF FACT The preponderance of the evidence is against finding the Veteran's current cervical spine disability, to include degenerative joint and disc disease, was caused by or related to the Veteran's active duty service. 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1962 to January 1964. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2021 Board decision, the Board found new and material evidence had been received sufficient to readjudicate these claims and determined a remand was necessary in order to search and obtain any outstanding Social Security Administration (SSA) or VA treatment records. The request was made for the Veteran's SSA records in February 2021 and a response from the SSA National Records Center was received in February 2021. The response provided that the medical records have been destroyed and that further efforts to obtain them would be futile. The Veteran was provided notice of this and did not provide any additional evidence in support of his claim although given the opportunity to do so. Entitlement to service connection for a cervical spine disability. The Veteran seeks service connection for a neck disability. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran was provided a VA examination in August 2016. The examiner diagnosed the Veteran with degenerative joint disease, degenerative disc disease, and contusion posterior neck, resolved. Therefore, given the evidence of a current disability, the Board finds the first element necessary for service connection has been met. With regard to an in-service event or injury, first, the Veteran's service treatment records (STRs) upon entrance do not list any neck disability. In November 1963, the Veteran was struck by a basketball goal unit on the back of his neck resulting in a superficial laceration. X-rays were negative for fracture or dislocation and the Veteran had a normal range of motion (ROM). Five days later, after conservative treatment, the Veteran exhibited full ROM and "neck bothers very little." The Veteran's discharge examination does not note any neck disability. However, given the evidence of an in-service neck injury, the Board finds adequate evidence satisfying the second element necessary for service connection. As it pertains to the final element, a nexus, the Board finds the preponderance of evidence is against finding the Veteran's current neck disability was caused by or related to his active duty service. An etiological opinion was obtained in August 2016, at which time the examiner stated that the Veteran's neck disability was less likely than not (less than 50 percent probability) incurred in or caused by his claimed in-service neck injury. The examiner notes the Veteran's in-service neck injury was diagnosed as a contusion with laceration, with negative X-rays. The examiner states his STRs note it improved with therapy and conservative treatment to the point where the injury "bothers him very little." Furthermore, the examiner states that his discharge examination is silent for complaints of neck pain and the record remains silent for 20 years until the mid-1990s where the Veteran reports chronic low back pain and "some neck pain." The Veteran's medical records report chronic neck pain over the next 20 years. The examiner provided the rationale that the Veteran's in-service neck contusion would be expected to resolve and that his STRs do not reveal any continued complaints. The examiner opines that the chronic neck pain recorded over two decades later and most recently are most likely related to the progressive cervical disc degeneration. Furthermore, the examiner notes that there is no medical evidence to support a resolved neck contusion is an etiological factor for cervical disc or joint disease later in life. Instead, the examiner notes the most likely factors for the Veteran's neck disability include occupation stresses, subsequent injuries, a motor vehicle accident, and natural aging processes. The Board further notes that this is actually consistent with the Veteran's own report of the history of his injuries such as in VA treatment records from January 2017 wherein he states that he has a long history of disc disease and chronic neck pain since a 1969, status post motorcycle accident, and also sustained injury from falling off a ladder in 1999. This is also found to be consistent with the examiner's own review of the medical records, which identifies a medical record from November 1998, at which time the Veteran related a history of low back pain since his motorcycle accident in 1969, and that he also had some neck pain that at times would radiate into his arms. Similarly, the examiner noted records from February 1999 revealed complaints of chronic back and neck pain that were once again related to a motor vehicle accident from several years earlier. Therefore, given the negative nexus opinion that is based on an accurate assessment of the other relevant evidence in the case, the Board must unfortunately find that the preponderance of the evidence is against finding the Veteran's current cervical spine disability, diagnosed as degenerative joint and disc disease, was incurred in or caused by his active service. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability, to include generalized anxiety disorder, is remanded. The Veteran seeks service connection for an acquired psychiatric disability to include generalized anxiety disorder. The Veteran was provided a VA psychological examination in September 2016. He has a current diagnosis of dysthymia/persistent depressive disorder. Recent medical records indicate he is still receiving treatment for this disability. Although the September 2016 VA examiner did not find evidence of any additional mental disorders or evidence of anxiety as a symptom, risk assessment note from July 2018 discusses anxiety and agitation as factors. Furthermore, symptoms of anxiety were discussed during a phone call with a social worker in August 2018. Therefore, the Board finds a remand is necessary in order to provide the Veteran with an additional VA examination. Additionally, the scope of the Veteran's claim should be expanded under Clemons v. Shinseki to include other psychiatric disabilities other than PTSD to include his bipolar disorder, anxiety disorder, and depression. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The matters are REMANDED for the following actions: Schedule the Veteran for an examination by an appropriate examiner to determine whether the Veteran has any acquired psychiatric disorder, to include a generalized anxiety disorder and dysthymia/persistent depressive disorder, that is related to active service. Any pertinent studies and testing should be conducted. This remand and all pertinent records should also be reviewed, to include July and August 2018 VA treatment records that reflect more current evaluation and treatment for psychiatric symptoms. Following the examination and review of the record, the examiner should then opine: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's acquired psychiatric disorder, to include a generalized anxiety disorder and dysthymia/persistent depressive disorder, is related to active service. An appropriate rationale for any requested opinion should also be provided. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.