CERVICAL SPINE LIMITATION OF MOTION

Summary

The veteran, who served in the Marine Corps from January 1999 to January 2003, appeals the denial of service connection for a cervical spine disability and left ear hearing loss. The Board previously remanded these claims for updated VA treatment records and new VA examinations. The veteran contended that his cervical spine disability was caused by service or aggravated by his service-connected low back disability, citing radiating pain and an in-service neck injury. However, service treatment records showed no cervical spine issues at enlistment or during service, and the veteran denied neck pain until 2011, with initial reports being inconsistent. Medical opinions consistently found no direct causal link between the cervical strain and the low back disability, or between the cervical strain and service, citing lack of in-service complaints and degenerative changes. The Board found the veteran's statements regarding neck pain onset to be contradictory and weighed the evidence against his claims, denying service connection for the cervical spine disability. For the left ear hearing loss claim, the veteran contended it was caused by service. Service treatment records showed normal hearing throughout service, with no complaints until 2014. VA examinations in 2014, 2021, and 2023 were reviewed. The 2023 VA examiner diagnosed a cervical strain and left ear hearing loss but opined it was less likely than not related to service due to a lack of permanent threshold shift during service and no in-service complaints. The Board assigned great probative weight to this opinion, finding no auditory damage during service and that the Veteran's hearing loss was not service-related, denying service connection for the left ear hearing loss.

Rationale

No in-service complaints or diagnosis of cervical spine disability.; Contradictory lay statements regarding onset and severity of neck pain.; Medical opinions consistently found no causal or aggravating link to service or low back disability.

Full Decision Text

Citation Nr: 24008162
Decision Date: 02/16/24	Archive Date: 02/16/24

DOCKET NO. 17-05 946
DATE: February 16, 2024

ORDER

Service connection for a cervical spine disability is denied.

Service connection for left ear hearing loss is denied.

FINDINGS OF FACT

1. The Veteran's cervical spine disability is not secondary to service-connected low back disability and is not otherwise related to an in-service injury or disease.

2. The evidence of record persuasively weighs against finding that the Veteran's left ear hearing loss began during active service or is otherwise related to an in-service injury or disease.

CONCLUSIONS OF LAW

1. The criteria for service connection for a cervical spine disability as secondary to service-connected low back disability have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020).

2. The criteria for service connection for left ear hearing loss have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from Marine Corps from January 1999 to January 2003. 

These issues were previously before the Board.  In February 2023, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development.  In pertinent part, the Board directed the AOJ to obtain any updated VA Medical Center treatment records, and to schedule VA examinations for the Veteran's claims.  The Veteran underwent a VA examination for his hearing loss in March 2023, and a VA examination for his cervical spine in April 2023.  

Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard.  Stegall v. West, 11 Vet. App. 268 (1998).

Before the matter was certified to the Board, in a September 2023 rating decision, the AOJ granted service connection for bilateral dry eye syndrome and assigned an initial 20 percent rating, effective November 13, 2013, and in a December 2023 rating decision, granted service connection for bilateral knee strain with shin splints with an initial 10 percent rating, effective November 13, 2013.  The award of service connection for these claims constitutes complete grants of the benefits sought on appeal for these claims.  See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned).

Service Connection

Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  Service connection may also be granted for a 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) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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.  Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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.  Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran."  Gilbert, 1 Vet. App. at 54.

1. Service connection for a cervical spine disability

The Veteran contends that his cervical spine disability was caused by service.  In the alternative, he contends that his service-connected disability aggravated his cervical spine disability.  Specifically, he contended that the flare-ups of his low back disability caused pain to radiate to his neck.

In February 2023, the Board found that the August 2022 VA examination was inadequate as the examiner relied on the lack of documentary evidence of injuries or symptoms in service.  The Board also pointed out that the examiner did not address the Veteran's report of low back flare-ups causing pain radiating to his neck.  Upon remand, the Board directed the AOJ to obtain a medical opinion addressing the Veteran's August 2015 statement of radiating pain to his neck altering body mechanics and the August 2022 report that he injured his neck during service.

Service treatment records show that the Veteran did not have any cervical spine disabilities in the April 1998 enlistment medical examination.  He complained of a back strain in February 1999, March 1999, and October 2000.  His separation screening in February 2004 found that he was physically qualified (PQ) and did not require a full examination.  There was no complaint of a neck injury during service.

Medical treatment records show the Veteran specifically denying neck pain in March 2004 despite complaining of chronic back pain.  The first time he reported neck pain, according to VA Medical Center treatment records, was in September 2011.  He described it as low back pain "occasionally" reaching his "neck on the right."  In November 2013, the Veteran reported that he has been experiencing neck pain for the "past 1 month" in contrast to his lower back pain which he has been experiencing "for several years."

In May 2014, the Veteran reported that he believed his neck pain was secondary to his lower back condition and did not report an injury to his neck in service.  The examiner opined that there is no "documentation in the medical literature establishing a direct cause and effect relationship between degenerative arthritis of the [lumbar] spine and the development of cervical strain."  

In March 2017, the VA examiner diagnosed the Veteran as having a cervical strain and opined that there is "no objective medical evidence in the medical literature establishing a direct cause and effect between lumbar [degenerative disc disease] as a cause or result including aggravation beyond its natural progression of cervical strain.  These are two distinct musculoskeletal structures without direct relation."

In June 2022, the Board found that the May 2014 and March 2017 VA examinations did not account for the Veteran's lay statements and directed the AOJ to obtain a medical opinion addressing the Veteran's lay statements of radiating pain.

In September 2022, the Veteran underwent a VA examination for his cervical spine disability.  The examiner diagnosed the Veteran as having a cervical strain.  The Veteran reported that he injured his neck where he assisted with loading bombs on aircraft.  The examiner opined that the Veteran's cervical strain was not directly caused by service as there is no medical evidence of the disability during service.  Regarding secondary causation, the examiner opined that barring an altered gait, that there is no mechanism for the Veteran's low back disability to cause his cervical strain.  In October 2022, an addendum medical opinion stated that there was no correlation between the Veteran's cervical spine strain and low back disability as joint disease does not "spread" to another or cause damage.

As discussed above, in February 2023, the Board found that the August 2022 VA examination was inadequate as the examiner relied on the lack of documentary evidence of injuries or symptoms in service and also did not address the Veteran's report of radiating pain.  The Board directed the AOJ to obtain
 is no medical evidence of the disability during service.  Regarding secondary causation, the examiner opined that barring an altered gait, that there is no mechanism for the Veteran's low back disability to cause his cervical strain.  In October 2022, an addendum medical opinion stated that there was no correlation between the Veteran's cervical spine strain and low back disability as joint disease does not "spread" to another or cause damage.

As discussed above, in February 2023, the Board found that the August 2022 VA examination was inadequate as the examiner relied on the lack of documentary evidence of injuries or symptoms in service and also did not address the Veteran's report of radiating pain.  The Board directed the AOJ to obtain a medical opinion as discussed above.

The Veteran underwent a VA examination for his cervical spine in March 2023.  The examiner diagnosed the Veteran as having a cervical strain.  The Veteran reported that he injured his neck during service but did not seek medical attention at the time.  The Veteran's gait was normal.  The examiner opined that the Veteran's cervical strain was less likely than not related to his military service as there was no evidence of chronicity during or after service.  Regarding aggravation the examiner again relied on the lack of medical evidence and explained that there is "no [connection]" between the Veteran's service-connected low back disability and his cervical disability.  An addendum opinion was submitted in September 2023 based not only on the absence of medical evidence, but also taking into account the presence of other complaints.  The examiner also noted that the Veteran's lay reports were consistent with a muscle strain of the neck, a soft tissue injury. 

In December 2023, another VA medical opinion was added explaining that the Veteran's first complaint of neck pain was in October 2013.  The Board notes that this is inaccurate as there was a complaint in September 2011 as discussed above but finds that it is not a substantial error as the point of the opinion was that the complaint came quite after discharge from active service.  Based on the treatment records on file, the examiner opined that it was more likely that the Veteran's current cervical spine strain started in "2013" and not related to any contended in-service pains.  The examiner added that altered gait from the lumbar spine would not significantly impact the neck and that there is no medical literature showing a causal relationship.  

After considering the evidence of record, the Board concludes that the most probative evidence establishes that the Veteran's current cervical strain is not causally related to his active service or any incident therein, to include his service-connected low back disability.

As an initial matter, the Board finds that the Veteran's statements regarding the onset of his neck pain is inconsistent and contradictory.  Contemporaneous medical treatment records show that the Veteran complained of various ailments during service, including injuries to his low back, shoulders, shin pain, especially his low back injury that happened when he was lifting drop tanks.  The Board notes that the Veteran contends that he also injured his neck while loading bombs or otherwise lifting in service, yet unlike his back injury or back pain, did not report any neck injury or neck pain.  More importantly, after discharge, the Veteran specifically denied having neck pain as early as in March 2004, and consistently denied any neck pain while reporting chronic back pain until September 2011.  The Board finds that had the Veteran experienced symptoms of neck pain, he would have reported it in a clinical setting as he did with his other ailments, specifically as he did with his back pain that was caused by similar circumstances.  Cf. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7))); see AZ v. Shinseki, 731 F.3d 1301 (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).

Moreover, it is well established that internal inconsistency, bias, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran may be considered.  Caluza v. Brown, 7 Vet. App. 498, 511-12, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curium) (table); Madden v. Gober, 125 Fed. Cir. 1477, 1481 (Fed
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).

Moreover, it is well established that internal inconsistency, bias, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran may be considered.  Caluza v. Brown, 7 Vet. App. 498, 511-12, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curium) (table); Madden v. Gober, 125 Fed. Cir. 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  Given the inconsistencies and contradictions in the record, including the examples discussed above, the record does not establish an in-service neck injury or consistent neck symptoms since service.

Turning to the contention of his cervical strain being caused or aggravated by his service-connected low back disability, the Board again finds that the evidence weighs against the Veteran's claims.  All medical opinions of record consistently diagnose the Veteran as having a cervical strain, which, as the September 2023 VA examiner explained, is a soft tissue injury, that is medically unrelated to the Veteran's low back disability.  Although the examiners do not agree whether an altered gait can cause or aggravate the Veteran's cervical strain, this is not pertinent to the Veteran as his gait was normal throughout the period on appeal, or at least as recently as in March 2023 where guarding and muscle spasms did not result in abnormal gait or abnormal spinal contour.  

The Board acknowledges that the VA examiners did not explicitly address the Veteran's report of radiating pain but finds that the examiners implicitly addressed the Veteran's statements in their explanations of the distinct nature of the Veteran's low back disability, a degenerative disc disease, and the Veteran's cervical strain, a soft tissue injury that requires, at minimum, an altered gait for there to exist causation or even aggravation.  Put another way, by describing the relationship, or lack thereof, between the two disabilities, the Board finds that the VA examiners addressed the Veteran's contentions including his back pain "radiating" to his neck.

There is also no medical opinion contrary to the VA medical opinions that, since May 2014, consistently opined that the Veteran's low back disability did not cause or aggravate his cervical strain.  

As the evidence weighs against the claim, the benefit of the doubt doctrine is not for application, and the Veteran's claim of service connection for a cervical disability is denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

2. Service connection for left ear hearing loss

The Veteran contends that he has a current left ear hearing loss that is caused by his service.  The Board found in February 2023 that the Veteran had "documented hearing loss" in May 2014 and directed the AOJ to schedule a VA examination and to obtain a medical opinion addressing whether the Veteran's left ear hearing loss was at least as likely as not caused or aggravated by his service, to include exposure to hazardous noise.  

Service connection for hearing loss, in addition to the criteria set forth above, is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability, in pertinent part, if speech recognition scores using the Maryland CNC Test are less than 94 percent.  See also Hensley v. Brown, 5 Vet. App. 155 (1993).

Service treatment records show that the Veteran's pure tone thresholds for the left ear, in decibels, were as follows:

	HERTZ

LEFT	500	1000	2000	3000	4000

04/06/1998	10	0	0	0	0

01/06/1999	5	-5	-5	-5	-10

10/11/2000	5	0	-10	-10	-10

09/28/2001	5	-10	0	-5	-5

10/30/2002	5	-5	-5	-10	0

There were no speech discrimination scores associated with the hearing examinations.

VA Medical Center treatment records show that the Veteran denied hearing changes or tinnitus in March 2004, April 2005, and December 2013.  His
3000	4000

04/06/1998	10	0	0	0	0

01/06/1999	5	-5	-5	-5	-10

10/11/2000	5	0	-10	-10	-10

09/28/2001	5	-10	0	-5	-5

10/30/2002	5	-5	-5	-10	0

There were no speech discrimination scores associated with the hearing examinations.

VA Medical Center treatment records show that the Veteran denied hearing changes or tinnitus in March 2004, April 2005, and December 2013.  His hearing was also determined to be normal in February 2015, with no change in hearing in April 2016.  He reported decreased hearing in March 2018.  In June 2021, he reported that he lost hearing in his right ear a "week ago" but can hear now.

In May 2014, the Veteran underwent a VA examination for his claim of service connection for left ear hearing loss.  The audiogram showed that the Veteran's pure tone thresholds, in decibels, were as follows:

 	HERTZ

 	500	1000	2000	3000	4000

LEFT	15 	10	5	10	10

The average threshold was 9 decibels and the speech discrimination score using the Maryland CNC Wordlist was 92 percent in his left ear.  Despite the 92 percent score, however, the examiner found that the Veteran had "normal hearing" and that the "claimed condition [was] not found, hearing is within normal limits for both ears."  

In November 2021, the audiogram showed that the Veteran's pure tone thresholds, in decibels, were as follows:

 	HERTZ

 	500	1000	2000	3000	4000

LEFT	 15	20	20	20	20

The puretone threshold average was 20 decibels for the left ear.  His speech discrimination score was 100 percent for the left ear using the Maryland CNC wordlist.   

In July 2022, the VA examiner opined that the Veteran "has no hearing loss in the left ear" and "normal hearing in the left ear."

In March 2023, the Veteran underwent a VA examination for his claim of service connection for left ear hearing loss.  The audiogram showed that the Veteran's pure tone thresholds, in decibels, were as follows:

 	HERTZ

 	500	1000	2000	3000	4000

LEFT	 20	15	15	25	25

The average threshold was 20 decibels and the Veteran's speech discrimination score was 96 percent for the left ear using the Maryland CNC Wordlist. The examiner found that the Veteran had sensorineural hearing loss in the left ear but that it did not meet the criteria to be considered a disability for VA purposes.  Regarding causation, the examiner found that there was no permanent positive threshold shift greater than normal during service and that it was less likely than not that the Veteran's left ear hearing loss was caused by service based on the Veteran's in-service medical treatment records and his current normal hearing in his left ear.  

The examiner emphasized that a "significant shift in hearing thresholds is the standard to determine auditory damage regardless of etiology," and that the lack of such a permanent shift in threshold is "evidence against auditory damage in service."  Regarding the May 2014 VA examination, the examiner noted in September 2023 that there was "no clinical hearing loss ... other than 500 Hz which is not consistent with noise-induced shift in hearing."  Specifically, the examiner explained that the 92 percent score in speech discrimination meant that there is "ratable hearing loss in the left although there is no clinical hearing loss."  

After reviewing the evidence of record, the Board finds that the Veteran's left ear hearing loss, diagnosed once in May 2014, is not caused by service.

As an initial matter, the Board notes that the Veteran's left ear hearing loss is considered "hearing loss" for VA purposes, but not considered "clinical" hearing loss.  Thus, the Board does not interpret the VA examiners' statements of the Veteran's left ear hearing being "normal" as there being no diagnosis of left ear hearing loss, but that there is no hearing loss for medical purposes.  As the Board, however, is only concerned with what is considered a hearing loss disability for VA purposes, the Board finds that the Veteran had a diagnosis of left ear hearing loss in May 2014.

Turning to the cause of the Veteran's left ear hearing loss, the Board assigns great prob
, is not caused by service.

As an initial matter, the Board notes that the Veteran's left ear hearing loss is considered "hearing loss" for VA purposes, but not considered "clinical" hearing loss.  Thus, the Board does not interpret the VA examiners' statements of the Veteran's left ear hearing being "normal" as there being no diagnosis of left ear hearing loss, but that there is no hearing loss for medical purposes.  As the Board, however, is only concerned with what is considered a hearing loss disability for VA purposes, the Board finds that the Veteran had a diagnosis of left ear hearing loss in May 2014.

Turning to the cause of the Veteran's left ear hearing loss, the Board assigns great probative weight to the September 2023 VA medical opinion that explains the etiology of hearing loss.  The examiner stated that a significant shift in hearing thresholds is "the standard to determine auditory damage" and that there is no evidence of such significant shift in service nor after service.  Put another way, the September 2023 VA examiner is stating that the medical evidence of record shows that there was no auditory damage during service.  As there was no auditory damage during service, exposure to hazardous noise did not result in auditory damage, and therefore such exposure could not have caused the Veteran's left ear hearing loss.  

The Board finds that the September 2023 VA medical opinion is also supported by the evidence of record, to include the Veteran's own contemporaneous statements and statements that are closer in time to his service.  As discussed above, the Veteran did not report any hearing loss until the May 2014 VA examination that took place more than a decade after his discharge in January 2004.  Again, it is well established that internal inconsistency, bias, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran may be considered.  Caluza, 7 Vet. App. at 511-12; Madden, 125 Fed. Cir. at 1481.  

To the extent the Veteran asserts that a relationship exists between his left ear hearing loss and his service, the Board finds that such assertions do not provide persuasive evidence in support of the claim.  The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals.  Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).  Although lay persons are competent to attest to matters within their own personal knowledge, to include symptoms experienced or observed (as appropriate), as well as to provide opinions on some medical issues, such as those perceived through the senses (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the etiology of the Veteran's left ear hearing loss is a complex medical matter that falls outside the realm of common knowledge of a lay person, especially as the Veteran's left ear hearing is clinically normal.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Thus, lay assertions as to the etiology of the Veteran's left ear hearing loss have no probative value.  In summary, the absence of competent medical or scientific evidence documenting a relationship between the Veteran's left ear hearing loss and his service, service connection on a direct basis must be denied.

As the evidence weighs against the claim, the benefit of the doubt doctrine is not for application and the claim of service connection for left ear hearing loss is denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

 

 

Paulette Vance Burton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	H.S. Yun

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. 


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