Citation Nr: 21041579 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-56 285 DATE: July 9, 2021 ORDER Entitlement to service connection for a neck disorder, to include as secondary to service-connected disabilities, is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT The Veteran's neck disorder did not begin during active service, is not otherwise related to an in-service injury or disease, arthritis did not become manifest to a compensable degree within the applicable presumptive period and it was not caused or aggravated by service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for a neck disorder, to include as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from April 1968 to January 1971 and from January 1978 to August 1981. These matters come before the Board of Veterans' Appeals (Board) from an appeal of an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, Missouri. A November 2018 Board decision reopened the Veteran's claim of service connection for a neck disorder and remanded the claim, as well as the claim of service connection for sleep apnea, for additional development. In June 2020, the Board again remanded the claims for additional development. Service Connection 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(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 is presumed to have been incurred in service if manifest 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. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a neck disorder, to include as secondary to service-connected disabilities, is denied. The Veteran asserts that he has a neck disorder, to include cervical degenerative joint disease, that is as a result of an injury during active service. Specifically, the Veteran testified that his neck was injured in the same injury that caused his left shoulder disability. Additionally, the Veteran's neck injury is secondary to his service-connected left shoulder. Turning to the evidence of record, service treatment records include many references to treatment for the Veteran's left shoulder injury but do not show complaint, treatment, or diagnosis of a neck disorder. A November 1979 note indicated the Veteran was treated for a left shoulder sprain with moist heat applied to the neck and left shoulder. In an undated medical discharge medica history examination, the Veteran denied recurrent back pain. An April 1981 Medical Board Proceeding indicated the Veteran was unfit for duty due to impingement syndrome with chronic biceps tendinitis, left shoulder, and chondromalacia patella, bilateral. In an April 1987 annual examination report, the examiner marked the Veteran's spine as normal. Post-service private records include a November 1981 note in which the Veteran reported that he was working on an all-terrain vehicle in June 1979 when he slipped and started to fall and twisted violently around to the eft to grab hold of the vehicle to prevent himself from falling down. He had severe, electric-shock type pain from the base of his neck, down his left arm to his elbow. He stated he was unable to move his shoulder at all for two to three minutes. Upon examination, the Veteran denied any problems with his neck. His neck was supple with full range of pain-free motion without areas of tenderness nor muscle spasm. In a June 1986 note, Dr. F. noted it is felt that there is an adulsion fracture at the C-5 level. The examiner noted he has been treated by his office since 1985. During a June 1987 VA examination, the Veteran reported left side neck pain since his original shoulder injury. He stated that about a year ago a private physician x-ray his cervical spine and told him he had a fracture of the fifth vertebra. The examiner noted that examination of the cervical spine showed motion to be in full range in all directions. There was perhaps mild tenderness to the left side of the neck extending toward the left shoulder. The examiner noted a diagnosis of degenerative arthritis of the cervical spine. An x-ray report from that time showed minimal anterior spurring of C-5. The Veteran was afforded another VA examination in May 2019. After a physical examination, the examiner found the Veteran's neck disorder was less likely than not incurred in or caused by events in service. The examiner noted the Veteran had head trauma in infancy and there is no documentation of head trauma in service, or of an x-ray showing a cervical spine avulsion fracture in service. He denied neck pain in November 1981, when he claimed service connection for injuries to his left shoulder, and his cervical spine exam was normal. He stated that in 1969 when he injured both knees, he also injured his shoulder, however there is no documentation of this. He had negative x-rays of his neck in October 1987, 6 years after his last period of active service. Arthritis was first noted in neck films obtained in September 2012, and were considerably worse on neck films in January 2015, however at this point the Veteran is 70 years old, and has engaged in heavy labor all his life. In the examiner's opinion, the Veteran's degenerative disc disease (DDD) of the cervical spine is due to, caused by, or the result of normal processes of age and wear and tear. With regard to secondary service connection, the multiple VA opinions specifically indicate the Veteran's neck disorder was not caused or aggravated by service-connected hearing loss, not caused or aggravated by service-connected knee disabilities, not caused or aggravated by service-connected depression, not caused or aggravated by service-connected tinnitus, not caused by service-connected gastritis, and not aggravated by service-connected left shoulder disability. The examiner noted that the mechanism of cause of cervical spine DDD is related to age and life events. There is no neck association for these diagnoses to his service-connected disabilities including depression, left shoulder, bilateral knees, hearing loss, and gastritis. The examiner also found there was no aggravation by service-connected disabilities as current severity of service-connected conditions do not impact the formation of cervical spine DDD as there is no anatomic association. The Board has first considered whether service connection for a neck disorder is warranted on a presumptive basis, to include on the basis of a continuity of symptomatology. In this regard, the clinical evidence of record fails to show that the Veteran manifested arthritis to any degree within the one year following his discharge from active duty in August 1981. As such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted for cervical degenerative joint disease. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Based on the foregoing, the Board finds that service connection is not warranted for a neck disorder. The record does not establish a causal link between the Veteran's service and his neck disorder. In this regard, the Board notes that the VA examiners opined that the Veteran's neck disorder was less likely than not as a result of his active service, and more likely due to aging and natural wear and tear, and was less likely than not caused or aggravated by his service-connected disabilities. The Board affords significant probative value to these opinions, which assesses the nature of the Veteran's neck disorder against his military service and statements thereon. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the factually accurate, fully articulated, sound reasoning for the conclusion). There is no contrary opinion of record. The Board recognizes the Veteran's statements that he injured his neck in service in the same accident whereby he injured his left shoulder. However, the contemporary evidence contradicts this assertion, and there are no medical findings of record related to the neck until nearly 5 years after his period of service, despite numerous complaints and extensive treatment for other parts of the body related to the accident. Moreover, this assertion by the Veteran is contradicted by his statement to the November 1981 private treatment provider where he denied any neck problems. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (in analyzing credibility, the Board is justified in taking into account multiple factors, including lack of contemporaneous medical evidence, possible bias, and inconsistencies within the record). Thus, to extent Veteran asserts that he experienced neck problems following his in-service accident, the Board finds such assertions not credible. The Board notes that the Veteran has contended that his neck disorder is the result service, and was caused by the accident that resulted in his left shoulder injury; and or secondary to his service-connected left shoulder disorder. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, supra. Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's neck disorder and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran is competent to describe his current neck symptoms, the Board accords his statements regarding the etiology of such a disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing. In the instant case, there is no suggestion that the Veteran has had any medical training. Hence, the Board finds that he is not competent to provide a medical opinion to support this claim on the basis of his assertions alone. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinion of the Veteran is nonprobative evidence. The Board finds that the only probative medical evidence of record, the findings and VA opinions, to be of greater probative value than the Veteran's lay contentions. Upon review of the evidence, the Board finds the preponderance of the evidence is against the claim. Consequently, service connection for such disorder is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable to this claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to secondary to service-connected disabilities, is remanded. The June 2020 Board remanded the claim for additional opinions as to whether the Veteran's sleep apnea is caused or aggravated by service-connected disabilities to include service-connected unspecified depressive disorder. A September 2020 VA examiner noted that although association with PTSD/depression has been reported, no causality is shown in the vast majority of articles and, therefore, the consensus is negative that PTSD/depression causes or aggravates sleep apnea. The examiner noted that there is no medical evidence found to support the claim that PTSD/depression causes the anatomical abnormality responsible for sleep apnea. However, the Veteran submitted a private April 2017 opinion finding the Veteran's depressive disorder more likely than not aided in the development of and permanently aggravates his sleep apnea. As the September 2020 VA examiner based their opinion on an inaccurate basis finding no medical support of the Veteran's position, the Board find the opinion inadequate and a remand for a new VA opinion is necessary. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is at least as likely as not proximately due to or aggravated beyond its natural progression by service-connected depression. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.