CERVICAL SPINE DISABILITY

Summary

The veteran, who served on active duty from November 2003 to November 2007, including service in the Southwest Asia theater of operations, and later as a Reservist through October 2009, appeals the denial of service connection for neck pain, stiffness, and swelling, and for a fungal infection of the toes and/or feet. The veteran also seeks service connection for a change in bowel habits, potentially as secondary to an undiagnosed illness, which was remanded for further development. For the neck condition, the veteran claimed a direct service connection due to IED blast incidents in Afghanistan and Iraq, which he stated caused TBI and neck pain. He also claimed it was secondary to his service-connected TBI. Service treatment records did not corroborate the neck injury, but the Board accepted the veteran's lay reports of neck pain as credible due to his combat service. However, post-service records and a VA examination in November 2020 found the neck disability less likely than not related to service, citing a lack of continuity of treatment and imaging prior to 2016. The Board found the VA examiner's opinion probative and the veteran's assertions insufficient to establish service connection. For the fungal infection, the veteran claimed it began in service and worsened over time. Service and post-service records prior to 2020 showed no diagnosis of fungal infection. While a November 2020 VA examination diagnosed onychomycosis, subsequent VA examiners found it less likely than not related to service due to lack of chronicity and nexus. The Board found the veteran competent to report symptoms but not to diagnose, and without competent evidence linking the condition to service, the claim was denied. The bowel habit claim was remanded for a VA examination to assess the etiology of the veteran's gastrointestinal complaints, including whether they represent an undiagnosed illness, as the prior opinions were inadequate.

Rationale

Service treatment records do not corroborate in-service neck injury.; VA examiner found neck disability less likely than not related to service.; Veteran's lay assertions insufficient to establish service connection without competent medical nexus.

Full Decision Text

Citation Nr: 21052242
Decision Date: 08/24/21	Archive Date: 08/24/21

DOCKET NO. 16-63 290
DATE: August 24, 2021

ORDER

Entitlement to service connection for neck pain, stiffness and swelling, including as secondary to service-connected traumatic brain injury (TBI), is denied.

Entitlement to service connection for a fungal infection affecting the nails and/or feet, including Athlete's foot, is denied.

REMANDED

The claim of entitlement to service connection for a change in bowel habits, including as secondary to an undiagnosed or medically unexplained chronic multi-symptom illness, is remanded.

FINDINGS OF FACT

1. A cervical spine disability is not related to the Veteran's active service. 

2. A fungal infection affecting the nails and/or feet, including Athlete's foot, is not related to the Veteran's active service.  

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for neck pain, stiffness and swelling, including as secondary to TBI, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for entitlement to service connection for a fungal infection affecting the nails and/or feet, including Athlete's foot, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty (AD) from November 2003 to November 2007, including in the Southwest Asia theater of operations.  Thereafter, through October 2009, he served as a Reservist.  His awards and decorations include the Combat Action Ribbon.  

These claims come before the Board of Veterans' Appeals (Board) on appeal of a December 2014 Department of Veterans Affairs (VA) rating decision.  The Veteran testified in support of these claims before the undersigned Veterans Law Judge at the Agency of Original Jurisdiction (AOJ) in December 2019.  In February 2020, the Board remanded these claims and three others that have since been granted to the AOJ for additional action.  

Service Connection

The Veteran claims entitlement to service connection for neck symptoms on a direct or secondary basis as related to his active service or service-connected TBI, and for a fungal infection of the toes and/or feet on a direct basis as continuously manifesting since active service.    

Service connection may be granted on a direct basis for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  "Active military, naval or air service" includes: (1) AD; (2) any period of active duty for training (ACDUTRA) during which an individual became disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which an individual became disabled or died from an injury incurred or aggravated in the line of duty, or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training.  38 U.S.C. § 101(24).

The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection may also be granted on a secondary basis for disability that is proximately due to, or aggravated by, service-connected disease or injury.  38 C.F.R. § 3.310.  

Service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if they were noted as chronic in service, manifested to a compensable degree within a year of separation from service, or if continuity of the same symptomatology of those diseases existed since service, with no intervening cause.  38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v
 basis for disability that is proximately due to, or aggravated by, service-connected disease or injury.  38 C.F.R. § 3.310.  

Service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if they were noted as chronic in service, manifested to a compensable degree within a year of separation from service, or if continuity of the same symptomatology of those diseases existed since service, with no intervening cause.  38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).

The questions for the Board are thus whether the Veteran currently has these claimed disabilities, and, if so, whether they initially manifested during active service or are at least as likely as not related to such service.  

The preponderance of the evidence is against each of these claims.  

Entitlement to service connection for neck pain, stiffness and swelling, including as secondary to TBI

The Veteran testified that, during service in Afghanistan and Iraq, he was involved in three different improvised explosive device (IED) blast incidents, two while in a vehicle, one while on foot, during which he sustained a TBI and back and neck pain.  One such blast reportedly caused the vehicle to flip, which in turn caused him to land on his back and hit his neck.  When he was on foot, another blast caused a large piece of wall to explode and hit him on the right side of his body and his head; he was knocked out and does not recall how long he was unconscious.  The last, most violent blast struck the vehicle in which he was standing, throwing him to the back of the vehicle; he could barely get out of the vehicle due to the shock his back was in.  When he hit the back of the vehicle, he felt like he was getting crushed in a compactor.  His condition necessitated a ride back to the base.  

The Veteran claims that, since service, he has had neck symptoms that necessitate the use of over-the-counter medication; he feels as if someone is compressing his neck, causing shooting nerve pain down into his extremities.  His wife has had to get them a different bed that alleviates some of the pain and pressure in his neck.  Due to his employment, he tries to stay physically fit, but doing so is challenging thanks to his injuries.  He does not seek medical care for these problems due to the expense and because he wouldn't be able to make appointments and would get marked by his employer; he seeks outside treatment, including acupuncture and Pilates (spouse became instructor).  He cannot recall whether, when seen by VA, he was diagnosed with a neck disability.  He claims that, after undergoing an evaluation and x-rays in 2016, a doctor told him he had two pinched discs in his neck; he believes this would explain the tingling and pain he feels in his hands.  

The Veteran's spouse submitted a written statement in support this claim indicating she has witnessed what the Veteran's joint pain, including in his neck, has done to his body and mind.  She reported that the Veteran has had to change jobs due to his pain; he previously worked as a military contractor overseas, a job he enjoyed very much, but he left that job because it demanded too much physically.  She refers to the Veteran's back pain, for which he is separately service connected, indicates that they have had to purchase new beds every few years to help the pain, and notes that she has heard his joints cracking and popping and witnessed him grimacing in pain on a daily basis.  She reports that doctors who examined the Veteran in October 2016 told them that the Veteran had compressed disks in his neck and a bulging disk in his back.  She notes that the Veteran has stop doing yoga with her due to pain in his knees and tingling and numbness in his hands and feet; while the Veteran enjoys working out and running, she has witnessed him taking weeks off at a time due to pain.  She claims his pain has taken a toll on him both physically and mentally.

A report of VA examination conducted in October 2020 confirms that the Veteran currently has a cervical spine disability diagnosed as cervical strain.  The question is thus whether this disability is related to an in-service injury, event or disease.  

Service treatment records do not corroborate the Veteran's assertions that he injured his neck in service; instead, they document back complaints and a 2007 report of hand numbness and finger tingling never
 has stop doing yoga with her due to pain in his knees and tingling and numbness in his hands and feet; while the Veteran enjoys working out and running, she has witnessed him taking weeks off at a time due to pain.  She claims his pain has taken a toll on him both physically and mentally.

A report of VA examination conducted in October 2020 confirms that the Veteran currently has a cervical spine disability diagnosed as cervical strain.  The question is thus whether this disability is related to an in-service injury, event or disease.  

Service treatment records do not corroborate the Veteran's assertions that he injured his neck in service; instead, they document back complaints and a 2007 report of hand numbness and finger tingling never attributed to the cervical spine.  However, given that the Veteran served in combat and his competent reports of lay-observable neck pain are consistent with the circumstances, conditions or hardships of such service, the Board accepts as true that the blast injuries occurred as described, resulting in neck pain.  See 38 C.F.R. § 3.304(d) (providing a "combat presumption" relaxing adjudicative evidentiary requirements for establishing an in-service event).  He is now service connected for a TBI.  

Post-service treatment records and VA examination reports also do not corroborate the Veteran's assertions that neck symptoms, including the pain, persisted continuously after service.  However, as the Veteran is competent to report lay-observable neck symptoms such as pain, stiffness and swelling, the Board accepts as true that these symptoms manifested as described.  Prior to 2020, no medical professional attributed these symptoms to a particular diagnosis.  Rather, according to treatment records, the Veteran was seen for multiple medical conditions after discharge from AD in 2007, until 2015, but he never mentioned his neck.  It was not until 2016, when the Veteran presented with neck complaints and underwent cervical spine x-rays, that a medical professional addressed the Veteran's neck.  X-rays revealed straightening of the cervical spine secondary to spasm or positioning but no acute process.  By this point, the Veteran had reported a history of neck arthritis, but there was no documentation of such arthritis of record, x-rays or otherwise, and during a November 2016 VA non-degenerative arthritis examination, an examiner, acknowledging neck pain since 2004 and the 2016 x-rays, ruled out such a condition.  Four years later, during the November 2020 VA examination, an examiner rendered a cervical spine diagnosis.

This examiner addressed whether the cervical spine disability is related to the Veteran's active service, including the neck pain and TBI, and her opinion is unfavorable.  Acknowledging a history consistent with neck pain and the 2016 x-rays, she concluded that the Veteran's neck disability was less likely than not incurred in service or caused by an in-service injury, event or illness, including the IED incidents.  She based this opinion on a lack of continuity of treatment and imaging studies prior to 2016 and the 2016 x-rays showing vertebral bodies normal in height with well-preserved interspace distances and normal posterior elements.  

The examiner's opinion is probative, because it is based on an accurate medical history and provides a conclusion supported with rationale.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  The Veteran has not submitted a medical opinion refuting that of the VA examiner.  His assertions therefore represent the only nexus evidence of record.  While the Veteran is competent to report having experienced lay-observable neck symptoms during and since service, not being trained in medicine, he is not competent to determine that these symptoms represent the initial manifestations of a diagnosed neck disability.  The issue is medically complex, requiring interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  

In the absence of competent evidence linking the Veteran's current cervical spine disability to his active service, including his neck pain and the IED blasts, and/or his service-connected TBI, the criteria for entitlement to service connection for the cervical spine disability are not met.  The positive and negative evidence of record pertaining to the cause of the cervical spine disability is not in equipoise; therefore, reasonable doubt may not be resolved in the Veteran's favor.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Entitlement to service connection for a fungal infection affecting the nails and/or feet, including Athlete's foot 

The Veteran testified that he began getting toe fungus or Athlete's foot early on in his period of service, when he was in SOI (school
 service, including his neck pain and the IED blasts, and/or his service-connected TBI, the criteria for entitlement to service connection for the cervical spine disability are not met.  The positive and negative evidence of record pertaining to the cause of the cervical spine disability is not in equipoise; therefore, reasonable doubt may not be resolved in the Veteran's favor.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Entitlement to service connection for a fungal infection affecting the nails and/or feet, including Athlete's foot 

The Veteran testified that he began getting toe fungus or Athlete's foot early on in his period of service, when he was in SOI (school of infantry), and thereafter, it progressively worsened despite treatment the Marine Corps provided.  He's not sure the treatment, which consisted of ointments "and things of that nature", was documented.  He testified that, after AD, he did stuff outside the Marine Corps (purchased ointments) to keep the fungus from spreading, but it was incredibly expensive.  At the time of the hearing, he indicated he was considering removing his nails.  

During an October 2020 skin diseases examination, he clarified that he had toenail fungus, not Athlete's foot, which began in 2003, during physical training, because he stood in water in combat boots for three days.  This condition has reportedly been ongoing since then, is worsening, and has required treatment with oral Lamisil and over-the-counter creams.  

According to service and post-service treatment records and VA examination reports, prior to 2020, the Veteran was never diagnosed with any type of nail, toe or foot fungus, including Athlete's foot.  However, during a November 2020 VA skin diseases examination, an examiner diagnosed onychomycosis, which, like Athlete's foot, is a fungus infection.  (Onychomycosis affects one's nails, whereas Athlete's foot affects the skin between the toes.)  The question is thus whether this disability is related to the Veteran's active service.  

Service and post-service treatment records are devoid of any evidence of skin changes on the Veteran's feet.  Therefore, they do not corroborate the Veteran's assertions that he has had fungus infections since active service.  However, given the lay-observable nature of skin changes on the feet, the Veteran is competent to report that he has experienced skin abnormalities and has used ointment to treat such abnormalities since AD.    

VA examiners addressed whether the Veteran's toenail fungus is related to the Veteran's active service, including the reported skin abnormalities, in November 2020 and March 2021, and their opinions are unfavorable.  Acknowledging a history of foot complaints, but none involving the skin or nails, service treatment records containing no evidence of treatment for toe or skin conditions or fungal infections, including onychomycosis and Athlete's foot, and 2016 VA examinations, during which no active, chronic skin infection was shown, they concluded that they could not establish chronicity to the onychomycosis or a nexus between the current condition and the Veteran's service.  They also found that the condition was not aggravated during service or by any service-connected disability.  

The Veteran has not submitted a medical opinion linking his onychomycosis to his active service.  His assertions therefore represent the only nexus evidence of record.  Again, although the Veteran is competent to report that he began experiencing skin changes during service, and those changes persisted, he is not competent to attribute the changes to a particular diagnosis.  Rendering such a diagnosis requires testing, interpretation of the results, and knowledge of dermatology.  Jandreau v. Nicholson, 492 F.3d at 1377, 1377 n.4.  

In the absence of competent evidence linking the Veteran's onychomycosis to his active service, the criteria for entitlement to service connection for that disability are not met.  As the positive and negative evidence is not in equipoise in this case, reasonable doubt may not be resolved in the Veteran's favor.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

REASONS FOR REMAND

Entitlement to service connection for a change in bowel habits, including as secondary to an undiagnosed or medically unexplained chronic multi-symptom illness  

The AOJ initially characterized this claim as entitlement to service connection for bowel incontinence; however, in testimony and written statements, it has become clear the Veteran is seeking service connection for a change in bowel habits, however described.  The Board has thus recharacterized this claim to reflect the Veteran's intentions.  The Veteran seeks this benefit on the basis that he has had bowel issues
 be resolved in the Veteran's favor.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

REASONS FOR REMAND

Entitlement to service connection for a change in bowel habits, including as secondary to an undiagnosed or medically unexplained chronic multi-symptom illness  

The AOJ initially characterized this claim as entitlement to service connection for bowel incontinence; however, in testimony and written statements, it has become clear the Veteran is seeking service connection for a change in bowel habits, however described.  The Board has thus recharacterized this claim to reflect the Veteran's intentions.  The Veteran seeks this benefit on the basis that he has had bowel issues, including incontinence, stomach pain, diarrhea, nausea and vomiting, that have continuously manifested since service, issues that might be due to his service overseas in the Persian Gulf.  He testified that he first began experiencing these symptoms after serving in Afghanistan in 2004 and 2005.  

Service connection may be granted on a presumptive basis in the case of a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability (includes an undiagnosed or medically unexplained chronic multi-symptom illness such as fibromyalgia) that became manifest during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021.  38 C.F.R. § 3.317(a)(1).  

Here, service treatment records confirm that the Veteran received care for gastrointestinal complaints during AD and service as a Reservist.  An October 2020 VA examination report reflects current gastrointestinal problems, which, based on medical records and the Veteran's history, the examiner confirmed as a change in bowel habits.  Opinions addressing the etiology of these problems, including whether they represent symptoms of an undiagnosed or medically unexplained chronic multi-symptom illness, are inadequate to decide this claim.  All focus solely on the incontinence.  One opinion, lacking supportive evidence and rationale, includes a finding that the incontinence preexisted service and was not aggravated therein.  Another examination is therefore needed.    

This matter is REMANDED for the following action:

Afford the Veteran a VA digestive system examination. 

The examiner should review all pertinent evidence of record, including: (a) service treatment records showing gastrointestinal complaints during AD and Reserve service; (b) post-service treatment records showing gastrointestinal complaints; (c) reports of November 2016, November 2020 and April 2021 VA examinations, during which the Veteran reported conflicting medical histories; and (d) the Veteran's written statements and hearing testimony claiming that gastrointestinal symptoms, including incontinence, stomach pain, diarrhea, nausea and vomiting, have continuously manifested since AD, after he served in Afghanistan.   

The examiner should record in detail the Veteran's history of gastrointestinal symptoms.  

The examiner should ask the Veteran to explain why he reported conflicting medical histories during VA examinations and his hearing conducted in 2016, 2020 and 2021.

If the examiner finds the Veteran not credible, he or she should so state this fact in writing in the record.

After conducting any necessary testing, the examiner should diagnose any gastrointestinal disability shown on examination.

Accepting as competent all reports of lay-observable gastrointestinal symptoms, the examiner should opine whether any diagnosed gastrointestinal disability initially manifested during AD or is at least as likely as not (50 percent or greater probability) related to a period of active service.  

If the Veteran's gastrointestinal symptoms are not due to a known disability, the examiner should opine whether they represent objective indications of an undiagnosed or medically unexplained chronic multi-symptom illness.   

The examiner should provide rationale for each opinion.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. N.

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.