Citation Nr: 22010307 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 17-10 782 DATE: February 23, 2022 ORDER Service connection for cervical stenosis and degenerative disc and facet disease is denied. FINDING OF FACT The evidence does not persuasively show that the Veteran's cervical spine disorder was related to his active duty service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to February 1974. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. 38 C.F.R. § 3.303(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Cervical Spine Disorder The evidence of record clearly shows that the Veteran has been diagnosed with a cervical spine disorder. See November 2002 medical records. The issue presented to the Board is if the Veteran's cervical spine disorder is related to his active duty service. After review of the evidence of record, the Board finds that the evidence does not persuasively show that the Veteran's cervical spine disorder is related to his active duty service. The evidence establishes that the Veteran was involved in a motor vehicle accident while in-service in June 1971. See June 1971 service treatment record (STR). However, while the Veteran has made statements that his neck pain began in-service after his accident, as the Board has discussed in its July 2021 Remand, the evidence of record does not support this contention. The objective evidence of record does not support a finding that the Veteran experienced neck pain within any proximity to his in-service accident or period of active duty service. The Veteran's STRs do not corroborate the Veteran's allegations of experiencing a neck injury during his June 1971 motor vehicle accident. The Board is cognizant that an absence of documented complaints in a medical record cannot always constitute substantive negative evidence. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). It must be considered whether there is evidence as to the severity of symptoms that would have made it "reasonable to expect" that at that time, he would have reported symptoms or sought treatment. See Fountain v. McDonald, 27 Vet. App. 258, 272-74 (2015). If so, the absence of complaints during treatment may provide affirmative evidence of absence. AZ v. Shinseki, 731 F.3d 1303, 1315-18, n.13 (Fed. Cir. 2013); see also Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder); see also Fed. R. Evid. 803(6), (7). During the accident, the Veteran was a passenger in the front right seat, and he hit the left frontal portion of his head on the windshield. The contemporaneous records indicate that the Veteran was subsequently treated for low back pain, diagnosed as a lumbar strain, particles of glass in his left eye, and post-trauma headaches. There was no reference to cervical spine or neck pathologies, symptoms, physical findings, or diagnoses in the service treatment records related to the Veteran's June 1971 in-service motor vehicle accident. The Board considers the absence of such expected evidence probative, especially in the light of the fact that he was being treated for other injuries incurred as a result of the June 1971 motor vehicle accident. See AZ, 731F.3d at 1311 (the absence of records is pertinent where it is reasonable to expect that a record of an event would exist). As such, the Board finds the absence of such expected evidence to significantly weigh against the credibility of the Veteran's lay assertions. Further bolstering the Board's finding in this regard is the fact that the Veteran continued service for nearly three years following his motor vehicle accident without any complaints of cervical spine or neck symptoms, and the Veteran's January 1974 exit examination listed the neck and spine as clinically normal. Shortly after service, the Veteran filed a service connection claim which included reference to injuries incurred during his June 1971 motor vehicle accident, but he did not reference upper back or neck pain. At an April 1974 VA examination, the Veteran underwent a comprehensive neurological examination, and there were no references to cervical spine symptoms, complaints, or abnormalities. Following service separation, the record does not document complaints of cervical spine pain until November 2002, a gap of approximately 28 years. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints). Additionally, the evidence shows that the Veteran did not begin subjectively attributing any cervical spine symptoms to his June 1971 motor vehicle accident until several decades after service separation. Indeed, the Veteran has often related his neck pain and onset of neck pain to actions and activities that occurred outside of his active duty service period and ones that were unrelated to his in-service motor vehicle accident. He has reported that his symptoms are the result of interceding events, to include injuries related to logging and working in the forest. See e.g., March 2013 chiropractor record (upper back pain began when lifting an object); October 2013 chiropractor record (upper back pain claimed as due to recent bobcat use); March, April, and July 2015 VA treatment record (upper back pain claimed as due to February 2015 injury while lifting a 200 pound log); March 2018 chiropractor record (upper back pain claimed as due to recent winter activities, including "working in the woods and running his bobcat, which requires him to have his shoulders elevated and it causes tightness in his neck."). As stated in its prior Remand, the Board again finds that the Veteran's lay reports of continuous cervical spine symptoms since service are not credible under the current evidentiary record, and thus, afford them no probative value. The Board notes that this finding was contained in its 2021 Remand and that the due process requirements of fair notice and an opportunity to respond when the Board purports to reverse prior assertions or impressions that evidence is credible or otherwise satisfactory to establish a fact necessary to the claim have been met. See Smith v. Wilkie, 32 Vet. App. 332 (2020; see also Thurber v. Brown, 5 Vet. App. 119, 123 (1993) ("[t]he entire thrust of the VA's non-adversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process."). The 2021 Remand constituted the notice required by caselaw, and the Veteran was afforded opportunity to respond upon remand. Tellingly, no such response or repudiation of the Board's findings was made by the Veteran or his representative. Thus, the evidence of record which did not rely on the Veteran's unsupported claims regarding continuity of symptomology after his in-service accident and active duty service as a whole, consists of a September 2021 VA examination opinion which did not find that the Veteran's cervical spine disorder was related to his active duty service, to include his in-service accident. The examiner provided a detailed review of the pertinent medical records and could find no link between the Veteran's active duty service and his cervical spine disorder. As previously discussed, the private medical opinions submitted by the Veteran rely on the allegations of continuous symptomology in and since service. Thus, these reports hold no probative value as those allegations have been found to be unreliable. The Board notes that the Veteran and his representative have not introduced any evidence which contradicts the September 2021 VA examination opinion. Simply, there is no probative evidence which indicates any link between the Veteran's current cervical disorder and his active duty service. As such, the evidence does not persuasively show that the Veteran has a cervical spine disability which is related to his active duty service. (Continued on the next page) As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish 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.