Citation Nr: 21042427 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-24 148 DATE: July 13, 2021 ORDER The appeal for service connection for a neck disability is denied. REMANDED The appeal for service connection for a right knee disability is remanded. The appeal for service connection for a left knee disability is remanded. The appeal for service connection for a back disability is remanded. The appeal for service connection for hypertension is remanded. FINDING OF FACT The preponderance of the evidence shows that the Veteran's current neck disability did not have its onset in service and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1983 to July 1987. This case was previously remanded by the Board of Veterans' Appeals (Board) in July 2019 and August 2020. Entitlement to service connection for neck disability. 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 (a). 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 (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are 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. 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). 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). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, there is no dispute that the Veteran has a current neck disability cervical spondylosis and calcific tendinitis. See June 2011 VA joints examination. The Veteran asserts that his neck disability is due to pushing and lifting heavy objects regularly during service. See May 2019 Brief from Veteran's attorney. Service treatment records confirm that the Veteran experienced back pain due to such pushing and pulling but are silent as to any neck complaints. The Veteran was afforded VA examinations and/or opinions in June 2011, January 2020, and November 2020 to address the claimed disability. During the June 2011 VA examination, the Veteran reported experiencing severe flare-ups that occurred weekly and lasted three to seven days. The June 2011 VA examiner opined that the current neck disabilities were less likely than not due to service and based the opinion on a lack of documented treatment for neck complaints during service. As discussed in the July 2019 remand, the June 2011 VA examiner did not appear to consider the Veteran's competent lay statements regarding pushing and lifting heavy objects during service, and that his neck disability began in 1986 and symptoms had been progressively worse since then. For these reasons, the Board finds that the June 2011 VA examiner did not provide adequate rationale for the opinion rendered. Thus, the Board places only limited probative value on the report. In January 2020, the examiner opined that it was less likely than not that the Veteran's neck disability was related to service because none of the Veteran's medical records indicated injury or treatment during service and there were no records providing chronicity of care currently for the neck. As discussed in the August 2020 remand, the January 2020 VA examiner did not appear to consider the Veteran's competent lay statements regarding continuity of symptomatology and based the negative opinion on a lack of documented treatment, which is not required for service connection. For these reasons, the Board finds that the January 2020 A examiner did not provide adequate rationale for the opinion rendered. Thus, the Board places only limited probative value on the report. In November 2020, a VA examiner reviewed the file, including the Veteran's lay statements that he had experienced continuity of neck symptomatology since service. Nevertheless, the examiner determined that it was less likely than not that the current disability was due to service. The examiner explained that there was an intervening event post service. The examiner noted that post service treatment records show the Veteran was in a car accident in 1993 and that he sustained a head trauma. The examiner also noted that treatment records indicate that the Veteran had another head trauma due to a slip and fall in October 2010. The examiner explained that the motor vehicle accident and the head trauma events could lead to a cervical condition. Thus, the examiner opined that it was less likely than not that the Veteran's current cervical spine disability was related to the experiences in service, including pushing and pulling heavy objects during service. There are no positive opinions of record associating any current neck disability with service. VA and private treatment records do not indicate a relationship between any neck disability and service. In reaching this conclusion, the Board acknowledges the March 2011 VA treatment record which noted the Veteran's complaints of extreme pain in the neck (and other joints) as well as the Veteran's statements regarding his duties lifting heavy bombs on a flight carrier in service. The March 2011 VA clinician did not offer an opinion as to whether any current disability began in service but rather listed the Veteran's report of events and current symptoms. The Veteran has not indicated that there are any outstanding records regarding the claim. The Board acknowledges the Veteran's statements and belief that he has a neck disability that is related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, etiology of a neck disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran has not been shown to possess the pertinent training to propose credible statements regarding the etiology of a neck disability. As such, any statements to this effect are not competent. For these reasons, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit-of-the-doubt provision is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a back disability. The Board remanded these appeals for VA addendum opinions in August 2020. The requested opinions were obtained in November 2020. For the reasons explained below, the Board find that the November 2020 VA examiner did not provide adequate rationale for the opinions rendered. As such, another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed in the August 2020 Remand, the Veteran asserts his bilateral knee and back disabilities stem from pushing and lifting heavy objects such as bombs and missiles on the flight deck of his ship in service. See May 2019 Brief from Veteran's attorney. The Veteran reported that he was treated in service with nonsteroidal anti-inflammatory drugs (NSAIDs) and bed rest and that these conditions progressively worsened since 1985. Id. Service treatment records note that the Veteran was seen for complaints related to his knees and back in service, including a note showing that he experienced over three weeks of lower back pain. The Board remanded the appeal in August 2020 because the January 2020 VA examiner's primary basis for the negative opinions rendered was that there was no record showing chronicity of care for the disabilities. The Board explained that chronicity of care was not required and that on remand, the examiner should consider the Veteran's competent statements regarding continuity of bilateral knee and back symptomatology since service. Unfortunately, the November 2020 VA examiner essentially repeated the January 2020 VA examiner's opinion. In this regard, the November 2020 VA examiner based the negative opinions on the Veteran's lack of treatment for the claimed disabilities for over 20 years following service, but the examiner did not explain the significance of any lack of treatment or why such treatment would be expected in order to link the current disability to service. Although the examiner noted that the Veteran's lay statements had been reviewed, the examiner did not explain why the Veteran's statements regarding continuity of symptomatology did not support a nexus between the current disabilities and the events in service. The November 2020 VA examiner also based the negative opinion on the fact that the Veteran served as a police officer for nearly 20 years post-service and noted that police officers have occupational hazards that can lead to musculoskeletal conditions. The examiner did not however, note any specific musculoskeletal conditions related to the Veteran's post-service occupation other than the October 2010 fall which affected the Veteran's head and neck. For all of these reasons, addendum opinions are required. 4. Entitlement to service connection for hypertension. The Board remanded the appeal for a VA addendum opinion in August 2020. The opinion was obtained in February 2021. Unfortunately, the February 2021 VA examiner did not provide adequate rationale for the opinions rendered. As such, another remand is required. See Stegall, supra. As discussed in the August 2020 remand, the December 2019 VA examiner opined that the Veteran's hypertension was not related to service. The December 2019 VA examiner explained that the determination was based on the fact that there were no records of hypertension or elevated blood pressure during service. In the May 2019 brief, the Veteran's attorney argued that, although the Veteran was not diagnosed with hypertension in service, various in-service blood pressure readings represented early manifestations of the Veteran's current diagnosis of hypertension. See January 1984 service treatment record; see also September 1984 service treatment record. The December 2019 VA examiner did not discuss this possibility. As such, the Board determined that the examiner did not offer an adequate supporting rationale for the opinion and sought a VA addendum opinion. The February 2021 VA addendum opinion obtained on remand specifically addressed the in-service blood pressure readings and determined that they were not early manifestations of hypertension. The examiner explained that none of the in-service readings, individually or collectively, would have prompted a work-up or evaluation for hypertension. The examiner did not however, explain why a reading that prompted such a work-up or evaluation was required in order to be an indication of an early manifestation of hypertension. As such, an addendum opinion is required. While on remand, obtain any outstanding VA treatment records as the Veteran is regularly treated through VA. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated since March 2020. 2. Following completion of item 1, obtain a VA addendum opinion as to whether the Veteran's right and/or left knee disability is at least as likely as not related to service, to include pushing bombs and missiles during service. The supporting rationale for all opinions expressed must be provided. The examiner is reminded that chronicity of care since service is not required to grant service connection. If the examiner maintains that the current disability is not related to service due to the lack of documented treatment, the examiner must explain why treatment is significant or required to establish a relationship between the current disability and service. Similarly, if the examiner maintains that the Veteran's disabilities are more likely due to post-service occupation, the examiner should note specific findings pertinent to the Veteran's actual experience. 3. Following completion of item 1, obtain a VA addendum opinion as to whether the Veteran's back disability is at least as likely as not related to service, to include pushing and lifting heavy objects during service. The supporting rationale for all opinions expressed must be provided. The examiner is reminded that chronicity of care since service is not required to grant service connection. If the examiner maintains that the current disability is not related to service due to the lack of documented treatment, the examiner must explain why treatment is significant or required to establish a relationship between the current disability and service. Similarly, if the examiner maintains that the Veteran's disabilities are more likely due to post-service occupation, the examiner should note specific findings pertinent to the Veteran's actual experience. 4. Following completion of item 1, obtain a VA addendum opinion to determine the nature and etiology of the Veteran's hypertension. The examiner must opine: Whether it is at least as likely as not that the Veteran's hypertension is related to an in-service injury, event, or disease, to include blood pressure readings taken therein. See September 1984 service treatment record; see also January 1984 service treatment record. The examiner is asked to address whether these in-service blood pressure readings represent early manifestations of the Veteran's current hypertension diagnosis. See May 2019 Brief from Veteran's attorney. The supporting rationale for all opinions expressed must be provided. If the examiner maintains that the readings in service are not early manifestations of hypertension because they did not prompt a full work-up or evaluation, please explain why such action would be required to link the current hypertension to the readings in service. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Donna D. Ebaugh, 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.