Citation Nr: 22017441 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 16-37 868 DATE: March 25, 2022 ORDER Service connection for a cervical spine disability, as secondary to the service-connected thoracolumbar spine disability, is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his cervical spine arthritis is proximately due to the service-connected thoracolumbar spine disability. CONCLUSION OF LAW The requirements for establishing service connection for a cervical spine disability on a secondary basis are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1979 to December 1986 in the United States Coast Guard. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified before the undersigned Veterans Law Judge sitting at the St. Petersburg, Florida RO. A copy of the hearing transcript is of record and has been reviewed. In August 2019, the Board, in pertinent part, granted entitlement to service connection for an acquired psychiatric disorder (diagnosed as posttraumatic stress disorder, major depressive disorder, and anxiety) and remanded the Veteran's claim of service connection for a cervical spine disability. The Board's August 2019 grant of service connection for an acquired psychiatric disorder is considered a full grant of the benefits on appeal for that claim and is no longer before the Board for appellate consideration. A.B. v. Brown, 6 Vet. App. 35 (1993). Pursuant to the Board's August 2019 remand, the RO associated the Veteran's service treatment and service personnel records with the electronic claims file. Additionally, the RO provided the Veteran with authorization and release forms to allow VA to obtain prison medical records. However, the record does not reflect that the Veteran submitted these forms or otherwise replied to the RO's multiple requests to submit them. The Veteran underwent VA examinations in March 2020 and November 2021 and the examination reports and associated VA medical opinions are of record and have been reviewed. The Board finds substantial compliance with its August 2019 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Accordingly, the Board proceeds with further appellate review of the Veteran's service connection claim. Service Connection Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Analysis The Veteran asserts that his currently diagnosed cervical spine disorders are related to a fall during active duty service with the Coast Guard, or, alternatively, are secondary to his service-connected thoracolumbar spine disability. See, e.g., Notice of Disagreement received November 21, 2013; See Board hearing transcript dated April 3, 2019 at pgs. 6, 23. For reasons set forth below, the Board finds that service connection for a cervical spine disability is warranted on a secondary basis. The Veteran is currently diagnosed with disorders of the cervical spine, including degenerative arthritis, intervertebral disc syndrome (IVDS), and residuals of spinal fusion surgery. See, e.g., VA neck examinations dated March 23, 2020 and November 18, 2021. During the April 2019 Board hearing, the Veteran said he believed his neck and back were injured in a fall aboard a Coast Guard vessel in 1984. See Board hearing transcript dated April 3, 2019 at pg. 6. However, the service treatment records are silent as to a claimed neck injury as well as symptoms, diagnosis, or treatment of a cervical spine injury or disorder during service. Furthermore, the Veteran's service records reflect that an in-service diagnosis of scoliosis, which ultimately resulted in the Veteran's medical retirement from the Coast Guard, was confined to the lumbar and thoracic regions of his spine. The earliest post-service evidence of a cervical spine disability is reflected in 2014 treatment notes and a cervical spine MRI. A November 2021 VA medical opinion reflects the examiner's conclusion that the Veteran's cervical spine disorders, diagnosed as degenerative arthritis and IVDS, are not related to active duty because the service treatment records are silent for diagnosis, treatment, or symptoms of any chronic disability with regard to cervical spine during service. However, as the examiner relied heavily on the absence of complaints in the Veteran's service records as the rationale for the negative nexus opinion, it is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The same VA examiner opined that the Veteran's service-connected thoracolumbar spine disability did not cause or aggravate the Veteran's cervical spine disorders because current medical literature is silent for any mechanism by which the Veteran's service-connected thoracolumbar spine disability could cause or aggravate cervical spine osteoarthritis or IVDS. See VA Medical Opinions dated November 18, 2021. However, the examiner did not discuss how the medical literature relied upon applied to the Veteran's diagnoses or circumstances. Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (a medical opinion based solely on general medical literature without discussion of the veteran's individual circumstances is inadequate). As such, the opinion is assigned low probative weight. In December 2021 addendum opinions, a different VA examiner opined negatively regarding a direct nexus; however, in doing so, the examiner did not clearly delineate between the thoracolumbar spine and cervical spine disorders. As such, the Board assigns little probative weight to this opinion. See Nieves-Rodriguez, supra. The December 2021 examiner also provided an opinion addressing secondary service connection, checking a box on the opinion form indicating that the Veteran's cervical spine disorders were not aggravated by the service-connected thoracolumbar disability. However, in the supporting rationale, the December 2021 VA examiner opined: "The claimant's neck disability is a natural progression from the thoracolumbar scoliosis as any scoliosis will eventually lead to damage later in life given his thoracolumbar scoliosis was severe enough to lead to [cervical] spine complications, arthritis as well[.]" The examiner further indicates that there is no evidence to support that the Veteran's neck disorders were aggravated beyond natural progression by the other service-connected disabilities. See VA Medical Opinion dated December 29, 2021. Although the December 2021 secondary opinion is not a model of clarity and the examiner checked the "No" box on the opinion form regarding aggravation, the opinion read as a whole is favorable regarding the etiology of the Veteran's currently diagnosed cervical spine arthritis. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (explaining that an examination report "must be read as a whole"). Specifically, the examiner opined that the Veteran's cervical spine arthritis was caused or aggravated by the service-connected thoracolumbar scoliosis, emphasizing that the Veteran's scoliosis is severe enough to cause the cervical spine arthritis. While an additional addendum could be requested to provide clarification to the December 2021 opinion, the current evidence is sufficient to decide the claim. A remand could therefore be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The December 2021 VA opinion regarding secondary service connection is competent, credible and probative. It was authored by a licensed physician who reviewed the Veteran's claims file and was therefore familiar with the Veteran's symptoms, diagnoses, and treatment of his cervical spine disorders as well as his service-connected disabilities. The opinion is consistent with the medical evidence of record and contains clear conclusions connected by a reasoned medical explanation. See Nieves-Rodriguez, supra. Notably, there are no probative medical opinions or other competent medical evidence of record that weighs against the December 2021 VA addendum opinion. Accordingly, the Board finds the opinion probative, competent and persuasive medical evidence in this case. (Continued on the next page) The Board finds that the evidence, overall, is at the very least in relative equipoise. Thus, with resolution of any doubt in the Veteran's favor, the Board finds that service connection for a cervical spine disability, as proximately due to the Veteran's service-connected thoracolumbar spine disability, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a); see Lynch, supra. The grant of service connection on a secondary basis renders moot other theories of service connection. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.