Citation Nr: 22013175 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 15-11 703 DATE: March 8, 2022 ORDER Service connection for a cervical spine disability is denied. FINDING OF FACT The competent and credible evidence of record is not in approximate balance, but persuasively establishes that the Veteran's cervical spine disability is not directly related to service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served from November 1983 to December 1986 and from July 1987 to June 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision. The Board notes that the Veteran had a postponed hearing rescheduled for December 13, 2021. However, he failed to appear for his hearing and has not submitted good cause to reschedule. Thus, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (d). Service connection for a cervical spine disability Generally, to establish service connection a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be established with certain chronic diseases such as arthritis based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran contends that he has a cervical spine disability that is related to a mugging during service. During this assault he was thrown against a wall and sustained injuries to his head and neck. He states that he was in the hospital for a week to ten days following the assault and was told that he may have trouble with his neck or upper back later in life due to injuries incurred. See August 2010 Veteran's statement. The Veteran is service connected for a traumatic brain injury (TBI) and headaches because of this in-service assault. The Veteran's service treatment records (STRs) document an in-service assault in April 1985 with resulting facial trauma. Additional STRs from April 1985 within a few weeks following the assault document reports of painful headaches but are silent for reports of neck or cervical spine symptoms. VAMC radiology reports from June 2002 show cervical spine x-rays with an impression of osteopenia and anterior degenerative joint disease (DJD). The "Clinical History" portion of the radiology report notes severe C4-C7 weakness and pain and an "old mugging injury" without further explanation. July 2007 radiology reports show virtually complete fusion of all the cervical vertebra with severe osteopenia secondary to osteoporosis. A March 2010 VA examiner diagnosed the Veteran with ankylosing spondylosis of the cervical and lumbar spines. The Veteran reported an onset of neck stiffness in the early 1990s. The examiner remarked that the Veteran's cervical spine disability was due to a genetic inflammatory disease and is "unrelated" to in-service trauma. VAMC Durham treatment records indicate that the Veteran underwent a cervical spine fusion in November 2010. The Veteran underwent a VA Cervical Spine examination in March 2015. The "Medical History" portion of the examination states that the Veteran reported no neck trouble immediately following the in-service assault. Further, he reported an onset of neck stiffness in the 1990s to the examiner. The examiner noted that the Veteran's cervical spine is fused and that he is frustrated by the lack of motion. After the in-person examination and a review of the medical records, the examiner opined that the Veteran's cervical spine disability is less likely than not incurred in or caused by the in-service assault. The examiner explained that this disability is more likely due to an autoimmune inflammatory condition and not the trauma to the back of the head incurred during service. Initially, there is no competent evidence establishing that a cervical spine disability manifested to a degree of 10 percent disabling or more within one year from the date of separation from service. In sum, the evidence does not warrant a grant of presumptive service connection for cervical spine spondylosis as a chronic disease pursuant to 38 C.F.R. §§ 3.307, 3.309(a). The Board has next determined that the Veteran's statements as to experiencing chronic or continuous neck or cervical spine symptoms since the in-service assault in April 1985 not to be credible. The Veteran stated in his July 2009 claim that his neck pain began in 1991 and has progressively worsened. He recounted this same medical history to both the March 2010 and March 2015 VA examiners. Courts have recognized how medical history recounted during medical evaluations and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73 (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Based on this collective body of evidence, the Board finds that any statements as to continuity of neck or cervical spine symptoms since the in-service assault in April 1985 are not credible especially considering the inconsistent statements as to when these symptoms began. See Cartright, 2 Vet. App. at 25 (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). Additionally, the Board finds that the competent medical weighs against finding that the Veteran's cervical spine disability is causally related to service, to include a documented in-service assault. The Board affords the March 2015 VA examiner's opinion significant probative weight. The examiner explained that the Veteran's cervical spine disability is likely due to an autoimmune inflammatory condition and not the trauma to the back of the head incurred during service. The Board defers to this examiner's medical expertise and experience in assessing the nature and progression of changes of the cervical spine. Turning to the Veteran's lay contentions, he does not have the experience, training, or education necessary to give a probative etiology opinion for his cervical spine disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case considering the education and training necessary to make a finding with regard to the complexities of the cervical spine, to include as due to remote trauma, autoimmune conditions, and/or aging. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, there are no records prior to June 2002 suggesting a cervical and/or thoracic spine complaint or diagnosis. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). There is no probative opinion (i.e., a clinical opinion based on review of pertinent records) that it is as likely as not that the Veteran has a cervical spine disability that is causally related to his service, to include an in-service assault, and his statements asserting continuity of symptoms since service are not credible. See Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). (Continued on the next page) Accordingly, the Board finds that the evidence is not in approximate balance as to whether the Veteran's cervical spine disability is directly related to service, to include an April 1985 in-service assault. To the contrary, the competent evidence persuasively establishes that there is not a causal relationship between a cervical spine disability and the Veteran's service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Therefore, this claim must be denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.