Citation Nr: 22017111 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-31 624 DATE: March 24, 2022 ORDER Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected disabilities is denied. Entitlement to service connection for headaches, to include as secondary to a cervical spine disorder is denied. FINDINGS OF FACT 1. The Veteran's cervical spine disorder did not manifest in service or within one year thereafter, is not otherwise causally or etiologically related to his military service, and was not caused or aggravated by a service-connected disability. 2. The Veteran's headaches are not secondary to a service-connected disability and are not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. A cervical spine disorder was not incurred in active service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for headaches due to service or service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1976 to May 1982 and from January 1991 to May 1991. He had additional service in the Army Reserves including periods of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded these issues for further development in October 2021. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis is a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have 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 they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). 1. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected disabilities In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a cervical spine disorder. Initially, the Board notes that he has a current diagnosis of degenerative disc disease of the cervical spine. Therefore, the first element of service connection is met. The Veteran has claimed that he developed a cervical spine disorder in service. He has provided lay statements alleging a history of neck pain in service with no clear precipitating incident. See, e.g., July 2015 VA examination report (stating he had symptoms a few times per month with no specific onset while in service and the condition has progressively worsened over time); May 2015 buddy statements (indicating that after he returned from overseas deployment in Southwest Asia he complained of back, neck and joint pain). The Veteran's service treatment records are negative for any complaints, treatment or diagnosis of a cervical spine injury or disorder. In fact, the March 1982 separation examination found his spine, neck, and upper extremities to be normal. On the separation report of medical history, the Veteran checked the box "Yes" for past or present swollen or painful joints, but clarified that it related specifically to his left thumb. He denied any other medical problems including arthritis and recurrent back pain. On a February 1991 health questionnaire, he mentioned arthritis in the left hand. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The March 1991 separation examination also found his spine, neck, and upper extremities to be normal. On the March 1991 separation report of medical history, the Veteran checked the box "Yes" for past or present eye trouble, loss of finger or toe, and foot trouble. However, he denied any other medical problems including swollen or painful joints, recurrent back pain, arthritis, or painful or "trick" shoulder or elbow. AZ v. Shinseki, supra. A November 1996 Reserve examination found his spine, neck, and upper extremities to be normal. The examiner did note complaints of chronic pain in the left knee. On the November 1996 report of medical history, the Veteran indicated past or present swollen or painful joints (left lower extremity), sinusitis, leg cramps, and foot trouble, but did not allege any neck pain. The Board notes that neither arthritis nor manifestations sufficient to identify the disease entity are shown during service. The pertinent regulations require that manifestations are "noted" in the service records and that is not the case in this instance. Therefore, while arthritis is a chronic disease under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations were shown in the service records. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and degenerative arthritis may not be presumed to have been incurred in service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. Moreover, there is no objective x-ray evidence of arthritis within one year of the Veteran's military service. In fact, there is no medical evidence pertaining to a cervical spine disorder for many years thereafter. The Board does acknowledge the Veteran's statements that he has had neck pain since military service. Lay persons are competent to report observable symptoms, such as problems since the Veteran's military service. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, although the Veteran is competent to report neck pain in service and continuing symptoms since that time, the Board finds that such statements are not reliable or credible. The allegations are inconsistent with the contemporaneous record. As discussed above, the Veteran's neck and spine were found to be normal at the time of his March 1982 and March 1991 separation examinations. Thus, there was actually affirmative medical evidence showing that he did not have a cervical spine disorder at the time of his separation from service (rather than a mere absence of treatment or documentation). Nor is there evidence of complaints of neck pain during his second period of active-duty service; in fact, in February 1991, he mentioned arthritis in his left hand but did not allege any neck problems. On the March 1991 separation report of medical history, he mentioned several medical issues but did not complain of neck pain. The service treatment records document numerous complaints of other medical problems including left knee pain but no complaints of neck pain. Indeed, the Veteran told the November 2019 VA examiner that his neck symptoms began around 1997 with neck stiffness, limited range of motion and increasing pain since onset. See November 2019 VA examination report. This is consistent with the post-service medical records. See October 1998 VA treatment records. Thus, there is affirmative evidence showing that the Veteran did not have continuous cervical spine problems since service. For these reasons, the Board finds the reports of onset and continuity of symptomatology to be not reliable or credible. Therefore, the Board concludes that the weight of the competent, credible, and probative evidence shows that a cervical spine disorder did not manifest in service or for many years thereafter. In addition to the lack of evidence showing that the claimed disorder manifested during active duty service or within close proximity thereto, the evidence of record does not link any current diagnosis to the Veteran's military service. The April 2019 Board remand requested that a VA examination be conducted to determine the nature and etiology of any cervical spine disorder that may be present. The examiner was asked to determine whether the cervical spine disorder at least as likely as not was directly related to his service; was proximately caused by any service-connected disability; or was proximately aggravated by any service-connected disability. An examination was conducted in November 2019 at which time a cervical strain was diagnosed. Etiology opinions were provided in November 2019 and May 2020. The examiner determined that it was less likely than not that the neck disorder was caused by military service. In support, she stated that the Veteran reported the onset of symptoms in 1997, which was 6 years post-separation. The service treatment records were silent for a neck disorder during active service or during the Reserves period. As such, there was no direct nexus established. In October 2021, the Board remanded the issue for an additional VA medical opinion regarding secondary service connection, finding that the November 2019 examiner did not provide adequate rationale. In addition, the prior Board remand had requested an opinion based on permanent worsening which is not the proper standard for determining secondary aggravation. On remand, the examiner was requested to provide an opinion as to whether it is at least as likely as not that the Veteran's cervical spine disorder was proximately caused by or aggravated by any of his service-connected disabilities. See October 2021 Board decision. The Veteran's service-connected disabilities include an acquired psychiatric disability, thoracolumbar strain, bilateral knee disabilities, and bilateral hip disabilities. The Veteran was afforded another VA examination in October 2021 in connection with his claim. The examiner opined that his cervical spine disorder is less likely than not caused or aggravated by a service-connected disability. He explained that the Veteran has degenerative disc disease of the cervical spine which is caused by the normal aging process. The major risk factor for degenerative disc disease is aging, per the medical literature. Service-connected disabilities including a psychiatric disability and disabilities of the knees, hips and ankles are less likely to have caused or aggravated his current degenerative disc disease. Osteoarthritis is not a systemic condition but can occur in multiple joints in an aging person. There is no medical literature that supports psychiatric conditions as a risk factor for degenerative disc disease. The examiner further explained that, of all the connective tissues, the intervertebral disc undergoes the most serious age-related changes. By the third decade of life, the nucleus pulposus becomes replaced with fibrocartilage, and the distinction between the nucleus and the anulus becomes blurred. The proteoglycan, water, and noncollagenous protein concentrations decrease, while the collagen concentration increases. The increase in collagen concentration is more pronounced in the nucleus and in the posterior quadrants of the disc. As degenerative disc disease is a chronic progressive condition caused by wear and tear throughout the aging process, there is no medical evidence that psychiatric disorders, osteoarthritis, sprains or strains in other unrelated joints can aggravate degenerative disc disease. See October 2021 VA examination report. There is no medical opinion otherwise relating a current cervical spine disorder to the Veteran's military service or to a service-connected disability. The Board has considered the Veteran's lay statements that his current cervical spine disorder is related to his military service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the disorder, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset of the disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to provide such an opinion, the Board finds that the VA examiner's opinion is more probative, as it was based on a review of the claims file, including the Veteran's own reported history and lay statements, and is supported by rationale. The VA examiner also relied on his own knowledge, training, and expertise as a medical professional. Based on the foregoing, the Board finds that the persuasive weight of the evidence is against the Veteran's claim for service connection for a cervical spine disorder. Because the weight of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a cervical spine disorder is not warranted. 2. Entitlement to service connection for headaches, to include as secondary to a cervical spine disorder The Board initially notes that no medical examination was conducted, and no medical opinion was obtained with respect to the Veteran's service connection claim for headaches on a direct basis. Although the Veteran has not been afforded a VA medical examination in connection with this claim, the Board concludes that one is not necessary. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination or opinion is necessary if the evidence of record (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service; but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination must be provided). However, the most probative evidence shows that there is no competent evidence of an in-service event, injury or disease. As such, the Board finds that an examination is not necessary, and there was no duty to assist error in this respect. See Locklear v. Nicholson, 20 Vet. App. 410 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); see also McLendon, 20 Vet. App. at 83. The Veteran's service treatment records are silent for complaints, treatment, or diagnosis of headaches. Nor has the Veteran been clinically diagnosed with migraine headaches. Rather, it appears that he is proceeding on a secondary basis, claiming that his headaches are related to his cervical spine disorder. The VA treatment records indicate that his headaches may be caused by his neck problems. See, e.g., April/May 2017 VA chiropractic treatment records (complains of neck tightness and occasional numbness and tingling that goes down the arms with occasional headache as a result of the pain). The issue was remanded in October 2021 as inextricably intertwined with the claim for service connection for a cervical spine disorder. On remand, the examiner was instructed that if the examiner determines that the Veteran's cervical spine disorder is at least as likely as not caused or aggravated by any of his service-connected disabilities, then the examiner should determine whether the cervical spine disorder is related to or a cause of his reported frequent headaches. See October 2021 Board decision. As set forth above, the October 2021 VA examiner determined that the Veteran's cervical spine disorder was not caused by or aggravated by any service-connected disability. For the reasons discussed herein, the Board finds that the Veteran is not entitled to service connection for a cervical spine disorder. Accordingly, service connection for a headache disorder on a secondary basis is unavailable. The Board has considered the benefit-of-the-doubt doctrine; however, because the persuasive weight of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107. Accordingly, the Board concludes that service connection for headaches is denied. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.