Citation Nr: 22017231 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-53 245 DATE: March 24, 2022 ORDER Entitlement to service connection for degenerative arthritis and intervertebral disc syndrome of the cervical spine, as secondary to the Veteran's service-connected lumbar spine disability, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to service connection for vocal cord paralysis post anterior cervical fusion, as secondary to the Veteran's service-connected cervical spine disability, is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran's service-connected lumbar spine disability more likely than not caused or contributed to the Veteran's cervical spine disability. 2. The Veteran's service-connected cervical spine disability more likely than not caused or contributed to the Veteran's vocal cord paralysis post anterior cervical fusion. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection on a secondary basis for degenerative arthritis and intervertebral disc syndrome of the cervical spine have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection on a secondary basis for vocal cord paralysis post anterior cervical fusion have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from October 1973 to August 1977, and from February 1982 to March 1990. This matter comes to the Board of Veterans' Appeals (Board) from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. By way of procedural background, these service connection claims were denied by the Board in a November 2019 decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The parties filed a joint motion for remand (JMR), vacating the November 2019 Board decision, which was approved by the Court in November 2020. The JMR indicated that there were outstanding private treatment records that the RO did not request. In April 2021, the Board again remanded the claims to obtain the outstanding records. In September 2021, the Board remanded the claim to afford the Veteran an opportunity to obtain the outstanding medical records and to obtain an adequate addendum medical opinion. 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. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be established on a secondary basis for a disability that 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 to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for degenerative arthritis and intervertebral disc syndrome of the cervical spine The Veteran and his representative contend that the Veteran is entitled to service connection for his cervical spine disability as secondary to his service-connected lumbar spine and knee disabilities. The first element for secondary service connection is satisfied in that the Veteran was diagnosed with degenerative arthritis and intervertebral disc syndrome of the cervical spine, as noted in a VA examination from December 2021. Therefore, the Board finds that the requirement of a current disability has been satisfied. The Board notes that the cervical spine disability originates from a December 1998 injury when he slipped while ascending a ramp at work. The evidence relating to the final nexus element for secondary service connection is mixed. The Veteran was afforded a VA examination in December 2021. However, there was a nexus opinion provided by a VA examiner in August 2017 without an examination of the cervical spine. The August 2017 VA examiner concluded that the Veteran's cervical spine herniated disc disorder was less likely than not proximately the result of related to, or permanently aggravated beyond its normal progression by, the service-connected degenerative lumbar spine disability. The examiner added that a lumbar spine disability would not increase the risk of accidents or cause a cervical spine disability. The examiner also noted that that the Veteran's cervical spine disability was caused an industrial injury in December 1998, and there was no medical basis to find that the Veteran's service-connected lumbar spine disability caused or predisposed him to the industrial injury. The December 2021 VA examiner concluded that the Veteran's cervical spine disability was less likely than not aggravated by his active-duty service, as the disability did not predate his active-duty service. The December 2021 VA examiner also concluded that the Veteran's cervical spine disability was less likely than not due to the Veteran's service-connected knee disabilities. The examiner opined that he Veteran's assertion that his knees giving out contributed to his December 1998 injury was not supported by the medical documentation. The December 2021 VA examiner finally concluded that the Veteran's cervical spine disability was less likely than not due to the Veteran's service-connected lumbar spine disability. The examiner explained that degenerative disc disease of the lumbar spine would not cause degenerative disc disease of the cervical spine, instead noting that the likely cause was genetics, age, and trauma. The VA nexus opinions conclude with negative nexus opinions while noting the cause of the disability, which has not been disputed by the Veteran. The VA examiners' medical opinions are probative because they are based on a review of the record and contain a clear conclusion with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30102 (2008). The Veteran submitted letters from his private treating physician explaining the nature and severity of his cervical spine disability. In a letter from February 1999, the physician stated that, while the Veteran's cervical spine disability was caused by his December 1998 industrial injury, "there is no question" that the Veteran's "pre-existing disability and the natural degenerative progression from his military injuries were predisposing to his current condition." This private medical opinion is highly probative because it is based on a review of the record and contain a clear conclusion with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30102 (2008). The evidence contained in this opinion further support the existence of a nexus between the Veteran's cervical spine disability and the Veteran's service-connected lumbar spine and bilateral knee disabilities. As such, the Board finds that the evidence is equipoise as to the existence of a nexus between the Veteran's cervical spine disability and the Veteran's service-connected lumbar spine disability. Affording the Veteran the benefit of the doubt, the final element for secondary service connection has been met. 2. Entitlement to service connection for vocal cord paralysis post anterior cervical fusion The Veteran and his representative allege that the Veteran is entitled to service connection for vocal cord paralysis post anterior cervical fusion as secondary to his service-connected cervical spine disability. The first element for secondary service connection is satisfied in that the Veteran was diagnosed with vocal cord paralysis post anterior cervical fusion, as noted in the Veteran's treatment records from July 2008. The evidence relating to the final nexus element for secondary service connection is positive. The Veteran was not afforded a VA examination for this disability; however, the evidence does include treatment records noting the origin of the disability. In a July 2008 letter from his treating physician regarding his vocal cord weakness/hoarseness. The physician explained that the Veteran's vocal cord paralysis was caused by his anterior cervical fusion in 2003. In an October 2017 treatment note, by a different physician, the Veteran's vocal cord paresis was noted as beginning immediately after his cervical disk fusion in 2003. The medical evidence of record supports the existence of a nexus between the Veteran's vocal cord paralysis and the Veteran's service-connected cervical spine disability. Therefore, the final element for secondary service connection has been met. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.