Back to BVA DecisionsDENIEDSpecial Benefit NO SPECIAL BENEFIT Docket No. 09-32 168A
CERVICAL SPINE LIMITATION OF MOTION
ROBERT C. SCHARNBERGER · 2019 · Case ID: 19134793
Summary
The veteran, who served from July 1979 to September 1996, appeals the denial of service connection for cervical spine disability, both directly and as secondary to his service-connected chronic lumbar syndrome and bilateral knee chondromalacia. The Board found that the veteran has a current disability of arthritis of C5-6 with radiculopathy. However, the Board determined that there was no in-service event, injury, or disease related to the cervical spine, as service treatment records, entrance, and separation examinations showed no complaints. A later x-ray in December 1997 noted mild degenerative disk disease and spondylosis, with the veteran reporting pain onset two weeks prior to that examination, which was over a year after his discharge. Therefore, direct service connection was denied. For secondary service connection, the Board acknowledged the veteran's current cervical spine disability and his existing service-connected conditions (PTSD, chronic lumbar syndrome, bilateral chondromalacia, etc.). However, the Board found insufficient nexus evidence. A February 2019 VA examination concluded that the cervical spine disability was less likely than not proximately due to or aggravated by the service-connected lumbar and knee conditions, citing anatomical independence. The Board considered the doctrine of reasonable doubt but found the preponderance of evidence against the claim, thus not applying it. Service connection for cervical spine disability was denied.
Rationale
No in-service onset or complaints of cervical spine disability.; Late onset of symptoms over one year after discharge.; VA exam found cervical spine disability medically unrelated to service-connected lumbar/knee conditions.
Full Decision Text
Citation Nr: 19134793 Decision Date: 05/03/19 Archive Date: 05/03/19 DOCKET NO. 09-32 168A DATE: May 3, 2019 ORDER Entitlement to service connection for cervical spine disability, to include as secondary to service-connected chronic lumbar syndrome, status post L4-5 lumbar discectomy; and chondromalacia of the left and right knees; is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s cervical spine disability began during active service, or is otherwise related to an in-service injury or disease, or was caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for cervical spine disability, to include as secondary to service-connected chronic lumbar syndrome, status post L4-5 lumbar discectomy; and chondromalacia of the left and right knees; are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to September 1996. The present claim was remanded by the Board in a May 2014 decision because the claim for lumbar spine was intertwined with the increased rating claims. The present claim was again remanded by the Board in a May 2018 decision for a VA examination for an opinion on if the Veteran’s cervical spine disability is at least as likely as not (50 percent or greater likelihood) proximately due to or, alternatively, aggravated (permanently worsened beyond the natural progression) by the service-connected chronic lumbar syndrome, status post L4-5 lumbar discectomy; and chondromalacia of the left and right knee disabilities. Entitlement to service connection for cervical spine disability, to include as secondary to service-connected chronic lumbar syndrome, status post L4-5 lumbar discectomy; and chondromalacia of the left and right knees; is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also 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 the disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service condition, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran asserts that his cervical spine disability began during service and has existed since that time and/or it is related to his service-connected chronic lumbar syndrome, status post L4-5 lumbar discectomy; and chondromalacia of the left and right knees. First, the Board finds that there is a current disability. See Holton, 557 F.3d at (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran asserts that his cervical spine disability began during service and has existed since that time and/or it is related to his service-connected chronic lumbar syndrome, status post L4-5 lumbar discectomy; and chondromalacia of the left and right knees. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran is diagnosed arthritis of C5-6 with radiculopathy. Second, the Board finds that there was not an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran does not assert, nor does the record reflect an in-service onset of his cervical spine disability. The Veteran’s STRs, entrance examination, and separation examination reflect cervical spine with no complaints of a cervical spine disability. The Veteran underwent an x-ray examination in December 1997 that found mild C5-6 degenerative disk disease and spondylolysis. During the December 1997 x-ray examination, the Veteran reported that his neck pain began approximately 2 weeks prior to the examination. The Board notes that the November 1997 or December 1997 onset of neck pain is more than 1 year after the Veteran was discharged. Thus, without more, the preponderance of the evidence is against a finding of an in-service incurrence of a cervical spine disability. The second element of direct service connection has not been met, and an award of service connection is not warranted on a direct basis. See Holton, supra. However, although the Board finds that there is not direct service connection, that decision does not preclude secondary service connection. As noted above, the Veteran is diagnosed with arthritis of C5-6 with radiculopathy, therefore he meets the first element of secondary service connection. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Second, the Board finds that the Veteran does have service-connected disabilities. See Wallin, 11 Vet. App. 509, 512; see also Allen, supra. The Veteran is currently service-connected for posttraumatic stress disorder (PTSD); chronic multi-symptom illness of unknown etiology (to include tingling in arms and hands, bilateral shoulder arthralgia, joint pain in back, knee, and shoulders, and fatigue); chronic lumbar syndrome, status post L4-5 lumbar discectomy; bilateral chondromalacia; bilateral neuralgia of the sciatic nerve; tinnitus; plantar fasciitis; headaches; peptic ulcer; and a scar. Third, the Board finds that there is insufficient nexus evidence establishing a connection between the service-connected disabilities and the current disability. See Wallin, 11 Vet. App. 509, 512; see also Allen, supra. The Veteran was afforded a VA examination in February 2019. The February 2019 VA examiner opined that the claimed disability is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected disabilities. The February 2019 VA examiner explained that the Veteran’s arthritis of C5-6 with radiculopathy is not medically related to his service connected disabilities. Specifically, that the claimed cervical spine disability is a separate entity from the Veteran’s service-connected knee and back disabilities and they are not related because the cervical spine has its own innervation, muscular group, and vertebrae and is not anatomically dependent on the lumbar spine or knees for support or function. Accordingly, secondary service connection is also denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. DEEMER, 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 on the lumbar spine or knees for support or function. Accordingly, secondary service connection is also denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. DEEMER, 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.