Citation Nr: 1754634	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  11-15 245A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to service connection for a low back disorder.

2. Entitlement to service connection for a cervical spine disorder.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Kettler, Associate Counsel




INTRODUCTION

The Veteran had active service from August 1958 to July 1960.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.  

In March 2017, the Board remanded this claim for a VA medical examination and outstanding records.  

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1. A low back disorder was not present in service, was not manifested to a compensable degree within the first year after discharge from service, and is not related to the Veteran's active military service.

2. A cervical spine disorder was not present in service, was not manifested to a compensable degree within the first year after discharge from service, and is not related to the Veteran's active military service.


CONCLUSIONS OF LAW

1. The criteria for service connection for a low back disorder have not been met.  38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

2. The criteria for service connection for a cervical spine disorder have not been met.  38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  Further, the Board finds that the March 2017 remand directives have been substantially completed.  Stegall v. West, 11 Vet. App. 268 (1998).

II. Legal Criteria

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).  Where a condition noted during service is not shown to be chronic or where the diagnosis of chronicity may legitimately be questioned, a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a).  The theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Certain chronic diseases (e.g. arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time post service (one year for arthritis).  38 U.S.C. § 1137; 38 C.F.R. §§ 3.307, 3.309.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. §5107(b).

III. Merits of the Claim

The Veteran claims entitlement to service connection for cervical and lumbar spine disorders.  He attributes the onset of the disabilities to military service as an artillery crewmember.  See November 2010 Statement in Support of Claim.  

The Veteran's service treatment records were entirely silent for complaints, findings, or treatment for cervical or lumbar spine problems, except the Veteran marking "yes" to the question about arthritis or rheumatism on separation.  See April 2017 VA examination.  However, the Veteran noted his health was "good."  Moreover, upon clinical evaluation, the Veteran's spine was assessed as "normal."  Id. 

The first record of arthritis is a treatment record in June 1991, but the report does not specify the location.  See June 1991 VA 10-10 Form.

The Veteran received a VA general medicine examination in July 1992, where he complained of pain in the lumbar spine since 1982.  The examiner diagnosed the Veteran with low back pain but did not opine on the etiology of that diagnosis.

In April 2017, the Veteran underwent a VA spine examination for his cervical and lumbar spine.  The Veteran complained of constant right upper back pain radiating towards his head.  Similarly, he complained of low back pain without radiation.  Following an examination of the Veteran, the examiner diagnosed him as having cervical degenerative disc disease (DDD) and cervical spondylosis with posterior spurring.  He similarly diagnosed him as having lumbar DDD and lumbar spondylosis.  The examiner acknowledged the Veteran's in-service notations reflecting the arthritis and rheumatism, and determined that the service records are silent for the conditions claimed.  Furthermore, the examiner noted there is no objective evidence in the claims file that the Veteran has been diagnosed with rheumatoid arthritis.

Following a review of his claims file and an examination, the examiner opined the Veteran's cervical and lumbar disorders were less likely as not related to his military service.  The examiner noted the Veteran's 20 years as a cabinetmaker, remarking that the physical demands on the Veteran's back makes him prone to suffer from a discogenic disease.  He opined that the nature and etiology of the Veteran's cervical and lumbar disorders were more likely than not caused by the normal aging process.

Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to service connection for low back and cervical spine disorders.

While the Veteran has a current disability of the low back and cervical spine, the Board notes that the Veteran's service treatment records were silent for any low back or cervical spine disorders or issues during the Veteran's period of active service, to include his entrance and separation physical examinations with their reports of medical history.  See April 2017 VA examination.  This contemporaneous evidence indicates that the low back and cervical spine disorders were not manifest during service and the Board finds this contemporaneous evidence to be highly probative.  The Veteran has not provided any competent evidence, to include from VA or a private medical provider, that indicates the Veteran's diagnosed lumbar DDD or cervical DDD originated in service.

In addition, the Board considers the April 2017 VA examiner's medical opinion to be of great probative value in this appeal.  The VA examiner provided a complete rationale for the stated opinion, and supported the opinion by utilizing his medical knowledge as well as citing to evidence included in the record.  The opinion was based on a review of the claims file, history from the Veteran, a thorough examination, and included references to pertinent evidence of record.  The examiner offered a negative direct nexus opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Board has considered the lay statements of the Veteran asserting active duty service caused his low back and cervical spine disabilities.  While the Veteran is competent to report symptoms of a low back and cervical spine disorders, he is not competent to make a diagnosis, or to link such a diagnosis to service or to an in-service injury.  Medical findings of that nature require medical testing and expertise that is outside the realm of common knowledge of a layperson.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Therefore, the Veteran is not competent to provide a diagnosis or etiology opinion in this case.  

The Board has considered the application of the concept of continuity of symptomatology in reviewing this claim, as arthritis can be considered a "chronic disease."  See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In this regard, the Board finds the Veteran's allegations of continuity of symptomatology with respect to his lumbar or cervical DDD to be inconsistent with the record.  While arthritis (DDD) is a listed chronic disease, the preponderance of the evidence is against finding that the Veteran had a diagnosis of such in service or that a diagnosis of such manifested to a degree of 10 percent or more within one year of the Veteran's separation from service.  38 C.F.R. § 3.307(a)(3).  The first noted diagnosis of record is in 1991, more than one year from the Veteran's separation.  Moreover, as noted, the June 1991 diagnosis does not specify the location of the arthritis.  The report of the July 1992 VA examiner details low back pain complaints beginning in 1982, over 20 years after service and with no indication of injury in service.  As such, presumptive service connection, to include on the basis of continuity of symptomatology is not warranted for lumbar or cervical spine disorders.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra.

As such, the Board finds that a preponderance of the evidence is against the claims for service connection for low back and cervical spine disorders, and these claims must be denied.  Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2013); Gilbert, 1 Vet. App. at 49.


ORDER

1. Service connection for a low back disorder is denied.

2. Service connection for cervical spine disorder is denied.




____________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs