Citation Nr: 21042567
Decision Date: 07/13/21	Archive Date: 07/13/21

DOCKET NO. 14-27 405
DATE: July 13, 2021

ORDER

Entitlement to service connection for a neck disability is denied.

FINDING OF FACT

The Veteran's neck condition did have its onset in or is otherwise related to service, nor is it secondary to his service-connected low back disability. 

CONCLUSION OF LAW

The criteria for entitlement to service connection for a neck disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1995 to December 1995. 

This matter was previously remanded by the Board of Veterans' Appeals (Board) in September 2016, May 2018, and August 2020. The Board is now satisfied there was substantial compliance with its latest Remand. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, an addendum opinion was obtained in February 2021, which the Board finds adequate for adjudication purposes. 

The Board recognizes that in May 2021, the Veteran's attorney submitted a letter stating that the attorney "revoke[s] power of attorney" for the Veteran. To the extent that this may constitute a motion to withdraw as a representative in this matter, the Board notes that this appeal was certified to the Board prior to the attorney's May 2021 letter. Once a Legacy appeal has been certified to the Board, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. 38 C.F.R. § 20.6. As the letter provides no reason for the attorney revoking power of attorney, the Board finds that good cause has not been shown, and the motion to withdraw as counsel is denied. 

The Veteran asserts that his neck condition was related to his active duty service, or in the alternative, that his service-connected low back disability caused or aggravated his claimed neck condition. For the reasons that follow, the Board finds that service connection is not warranted, as the evidence does not show a nexus to service or a service-connected disability. 

Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004).

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995).

First, the evidence shows the Veteran has a current neck disability. Specifically, an August 2019 VA examiner confirmed diagnoses of degenerative arthritis of the cervical spine and intervertebral disc syndrome. 

Next, the Veteran's service treatment records show a normal cervical spine in his May 1995 entrance physical. A July 1995 treatment note indicates the Veteran fell from a pull-up bar while conducting physical training during boot camp. This resulted in chronic low back pain, however, no cervical or neck issues were noted. From July through November 1995, he was placed on light duty and other low physical impact profiles to limit recurrent injury. Despite this, his low back condition failed to improve, and he was medically separated from the military in December 1995. Prior to separation, he had an "extensive" work up and evaluations for his low back pain, which noted a "probable disc bulge [at] L5-S1" according to an x-ray. At his separation exam in November 1995, the Veteran reported extensive low back issues, however, he did not endorse or report any problems associated with the cervical spine or neck area. 

The post-service evidence does not reflect symptoms related to the Veteran's neck condition until 2011. Specifically, during January 2011 VA treatment, he reported neck pain and muscle spasms. Thus, a gap of more than fifteen years separates the Veteran's active duty service and the first evidence of symptoms. Therefore, continuity is not established by the clinical evidence. 

As part of this claim, the Board recognizes the Veteran's statements regarding his history of symptoms. In this regard, while the Veteran is not competent to diagnose orthopedic disorders, as they may not be diagnosed by unique and readily identifiable features, and thus require a determination that is "medical in nature", he and others are nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). 

Here, the Veteran has made several statements regarding whether his neck condition has persisted since service. At a December 2013 VA examination, he stated that he has had neck pain for "the past few months" and that he has not sought treatment. In contrast, during his August 2019 VA examination, he stated that his neck condition began in 1995 along with his low back disability. The Board cannot grant service connection based on these statements, as they are at odds with one another. Thus, continuity of symptoms cannot be established based on the Veteran's statements. 

Next, service connection may be warranted if the evidence establishes a medical nexus between the Veteran's current symptoms and active duty or service-connected disabilities. In this case, there is no demonstrable medical nexus between the Veteran's service and his neck condition. 

The Board places significant probative weight on the opinions of the February 2021 VA examiner. This examiner opined against direct service connection, explaining there were no complaints of neck pain during service or one year thereafter. The examiner emphasized that there were extensive notes in the Veteran's November 1995 separation examination regarding his lumbar spine, however, no complaints regarding his cervical spine. Next, the examiner also opined against service connection on a secondary basis, concluding that there "is no link found between lumbar spine pain" and his cervical condition. In support, the examiner wrote that the lumbar and cervical spinal areas are separated from one another physically, and that lumbar spine disease is unlikely to be the cause of cervical spine disease. Finally, the examiner opined against his lumbar spine disability aggravating his cervical spine condition, as no aggravation was found.  In his rationale, the examiner explained that the Veteran did not complain of neck pain until more than fifteen years after the development of the lumbar spine disability. While degenerative changes to his cervical spine were noted in 2013, the examiner explained that these moderate to severe degenerative symptoms are common in the aging process, and not an indication of aggravation. 

In considering this appeal, consideration has been given to the Veteran's statements relating his claimed disability to military service. 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).

Although the Veteran is competent to testify as to his observed symptoms, he is not competent to provide a medical opinion linking these disabilities to his military service. Such a medical nexus does not involve a simple identification that a layperson is competent to make. See Jandreau, 492 F.3d at 1377, n.4.

Therefore, the Board finds that the weight of the competent evidence does not attribute the Veteran's neck condition to military service, or his service-connected disability, despite his contentions to the contrary. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Accordingly, service connection is not warranted. The claim is denied. 

 

J. Komperda

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald