Citation Nr: 22008397 Decision Date: 02/14/22 Archive Date: 02/14/22 DOCKET NO. 16-31 699 DATE: February 14, 2022 ORDER The claim of entitlement to service connection for a cervical spine condition, to include as secondary to service-connected intervertebral disc disease (IVDS), is denied. FINDING OF FACT The Veteran's cervical spine condition is not secondary to a service-connected lumbar spine disability and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a cervical spine condition due to service or a service-connected lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 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 September 1985 to September 1986. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As noted by the Board in its July 2021 decision, this appeal remains under the legacy claim system. In July 2021, the Board remanded this matter to the RO to conduct a review of the new evidence associated with the record since issuance of the May 2016 Statement of the Case (SOC) and readjudicate the Veteran's claim. If the claim remained denied, the RO was to provide the Veteran with a Supplemental SOC considering all evidence associated with the record since May 2016. In November 2021, the Board found the RO had substantially complied with the directives but determined that an additional remand was needed to correct an inadequate medical examination. The Board concluded, among other things, that April 2016 and March 2020 VA examination evidence failed to adequately address whether the Veteran's neck injury was directly related to an in-service injury, or was caused or aggravated by the Veteran's service-connected lumbar spine condition. On remand, the RO obtained an additional opinion as directed by the Board. The Board concludes that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The claim of entitlement to service connection for a cervical spine condition, to include as secondary to service-connected IVDS. The Veteran contends that his cervical spine condition, also claimed as multiple level disc herniations C3-C4, C4-C5, C5-C6 and C6-C7, is related to his active service, to include as secondary to his service-connected IVDS, status-post laminectomies at L4-L5 with bilateral foraminotomies at L4-L5 and L5-S1. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. VA will grant service connection for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease." Spicer v. McDonough, 34 Vet. App. 310, 315 (2021); 38 C.F.R. § 3.310(b). 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(b). The benefit-of-the-doubt rule applies if the competing evidence is "nearly equal" or in "approximate balance." The benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *11 (Fed. Cir. Dec. 17, 2021). In this case, the Veteran has a current cervical spine condition. According to a March 2020 VA examination, the Veteran has degenerative arthritis of the spine, and cervical disc herniations at C3-4, C4-5, C5-6 and C6-7, and is status post spinal fusion at C3-C6. The questions for the Board remain whether this cervical spine condition is directly due to an in-service injury or event, or whether the condition is proximately due to, the result of, or aggravated beyond its natural progress by, a service-connected disability. The Board concludes that as to these questions the evidence of record persuasively weighs against the Veteran's claim. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Veteran's service treatment records (STRs) show that he had no spine conditions at enlistment but that during his service he complained of back injury and pain on multiple occasions. See STRs dated April 18, 1986 (noting the Veteran had injured his lumbar spine two weeks earlier and still had pain); and April 23, 1986 (including report of severe pain in middle of back after the Veteran fell approximately one foot off the back of a truck and landed on his back). The STRs show that the Veteran continued to have low back pain following the April 23rd incident and that he underwent physical therapy. See May 1986 STR (assessing the Veteran with mechanical pain in his low back due to ongoing lifting activities). These records note only lumbar spine pain and symptoms and include no indication that he experienced pain in his cervical spine during his active service. The Veteran did not report cervical spine pain at the time of his discharge. Within a year of his discharge, the Veteran filed a service connection claim for his back and received a VA medical examination in October 1986. During that assessment, the examiner noted the Veteran was negative for any issue with his head, face, or neck, and noted in pertinent part only the Veteran's ongoing complaint of low back pain since service. This examiner diagnosed the Veteran with lumbar strain but no cervical spine condition. In December 2021, a VA physician who reviewed the Veteran's claims file and considered, among other things, the Veteran's in-service fall from a truck, opined it to be less likely than not that the Veteran's cervical spine disability had its onset during service or within a year of separation, further noting there was no medical basis for a link between the back injury and current neck disability. The Veteran's own lay statements further confirm that the onset of his cervical spine pain was not during active duty or within a year of discharge, and instead began six years after laminectomy surgeries to his lower back. The Veteran is competent to report the onset of symptoms of pain in his neck. The Veteran has asserted that he was diagnosed in 2000 with cervical spine disease. According to an April 2016 VA examination, a diagnostic imaging study in 2000 revealed cervical disc herniations at multiple levels. The Board finds the evidence outlined above relating to direct and presumptive service connection to be competent, credible, and probative as it consistently places the onset of cervical spine pain and diagnosis to be years after the Veteran's active service. As such, the Board concludes that the Veteran's cervical spine disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Similarly, this evidence persuasively weighs against finding that a medical nexus exists between the Veteran's cervical spine condition and an in-service injury, event or disease, to include his in-service fall from a truck. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. As for service connection on a secondary basis, the Board notes that in its November 2021 remand, the Board cited only a March 2020 examination that failed to include an etiology opinion and did not mention or address the adequacy of a subsequent April 2020 opinion regarding secondary service connection. As such, the Board will address that opinion here and concludes that the April 2020 opinion provides probative evidence weighing against the Veteran's claim. Specifically, the April 2020 physician considered the evidence of record, including the examination a month prior and opined that the "Veteran's degenerative disc disease of the cervical spine is less likely than not proximately due to or the result of his lumbar spine condition, intervertebral disc disease, status-post laminectomies at L4-5 with bilateral foraminotomies at L4-5 and L5-S1. The examiner reasoned that, "[a]lthough the cervical spine and lumbar spine are part of the vertebral column, they are independent and separate. Degenerative disc disease of the cervical spine is due to age related degenerative changes and not due to any biomechanical association with the lumbar spine." In December 2021, on the Board's remand, another VA physician, who conducted a review of the Veteran's claims file and the Board's remand instructions, also opined that it was less likely than not that the Veteran's cervical spine disability was caused or aggravated by a service-connected condition. This clinician identified VA treatment records as additional medical evidence that the Veteran's cervical spine condition was unrelated to service. Specifically, this physician cited January 2020 VA treatment record showing the Veteran was told he needed his cervical neck surgery because of severe arthritis associated pain on his right side and the risk of him falling putting him at risk for paralysis." The physician also noted that in a separate January 2020 VA treatment record, the Veteran explicitly reported that he "used to be a carpenter and has had falls causing injury to his cervical neck and his lower back." The Board finds these medical opinions of April 2020 and December 2021 to be adequate and persuasive as each opinion is based on consideration of the Veteran's full medical history and each opinion supports its conclusions with sufficient data and reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-304 (2008). The Board acknowledges the Veteran's sincere contention that his cervical spine disability is due to or aggravated by his service-connected lumbar IVDS, asserting that his cervical spine symptoms did not occur until years after surgery for his lumbar spine. However, the Veteran is not competent to provide a nexus opinion regarding this issue as it is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the competent medical evidence as outlined above, which establishes that the Veteran's cervical spine symptoms are unrelated to his active service and not due to or aggravated by his service-connected IVDS. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for a cervical spine condition is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.