Citation Nr: 1801345	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-18 961	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

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

2. Entitlement to service connection for a neck disability.

REPRESENTATION

Appellant represented by:	Diane O'Malley, Attorney

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

T. Davis, Associate Counsel


INTRODUCTION

The Veteran served in the United States Marine Corps from January 1977 to April 1978.  These matters come before the Board of Veterans Appeals on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

In January 2016, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing at the RO; a transcript of the hearing is of record. 

During the hearing, the Veteran submitted evidence, along with a waiver of Agency of Original Jurisdiction (AOJ) consideration. In April 2016, the Veteran's attorney submitted additional evidence, including duplicative evidence, as well as private treatment records. A waiver of AOJ consideration did not accompany the submission. However, the Board notes that, since the Veteran's Form 9 was received after February 2, 2013, a waiver of review by the AOJ was not required. See § 501, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or the claimant's representative requests in writing that the AOJ initially review such evidence). Therefore, the Board may consider the evidence in the first instance. 38 C.F.R. § 20.1304 (c) (2017).

In an August 2016 Board decision, the issues stated on the title page were reopened and remanded for further development, including a VA examination and to obtain treatment records.

FINDINGS OF FACT

1.  The Veteran has arthritis of his cervical and lumbosacral spine.

2.  The Veteran's spine disabilities are not related to service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for cervical and lumbosacral spine disabilities have not been met.  38 U.S.C.A. §1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As the Board's decision to grant service connection for lumbosacral and cervical spine disabilities is completely favorable, no further action is required to comply with VA's duties to notify and assist.

The Board observes that, besides a January 1977 entrance examination and a January 1977 Report of Medical History, the Veteran's service treatment records are unavailable. In a Formal Finding of Unavailability issued in March 2007, the RO indicated that, despite exhausting all reasonable efforts, the Veteran's complete service treatment records were unavailable, and that any further attempts to associate outstanding service treatment records with the record would be futile. The Board notes that the Veteran's attorney has also attempted to obtain his complete service treatment records but, in a January 2014 letter, the National Personnel Records Center indicated that it did not have the Veteran's service treatment records. 

All methods appear to have been exhausted in attempting to obtain the missing service treatment records, which are unavailable for consideration. The Board finds no basis for further pursuit of these records as such efforts would be futile. 38 C.F.R. § 3.159 (c)(2), (3). 

Applicable Laws and Regulations

The Veteran claims entitlement to service connection for a low back disorder and a cervical spine disorder, to include associated neurological manifestations, as a result of his military service. During his January 2016 hearing, the Veteran testified that, during basic training, he engaged in hand to hand combat using pugil sticks. See January 2016 Hearing Transcript, pg. 9. He stated that he was consistently pitted against another soldier who was double his height and weight. He further testified that he was repeatedly struck in his upper torso area, including his head and neck. He stated that he when to sick call a number of times, but that he was only given aspirin to treat his pain. Id. at 10. The Veteran also reported being attacked in his barracks by a fellow Marine. Id. at 13. He recalled that he was hit over the head with an iron. The impact caused him to fall backwards and his lower back landed on a bar going across the foot of his bed. He stated that, following this incident, he was taken to the hospital. Since these incidents, he reported pain in both his back and neck. Id. at 25.

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. §1131 (West 2014); 38 C.F.R. § 3.303(a) (2017).  Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Service connection may also be granted for listed chronic diseases if they are shown to have manifested to a compensable degree within one year after the Veteran was separated from service or through a showing of "continuity of symptomatology" since service. 38 U.S.C.A. §§ 1101, 1112; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309.

In the present case, the Board finds that the Veteran has a lumbosacral spine disability.  In June 2017, a VA examiner diagnosed the Veteran with degenerative arthritis of the spine and noted degenerative joint disease and degenerative disc disease diagnoses made in 2009. See June 2017 lumbosacral spine VAX.  The Board also finds that the Veteran has a cervical spine disability. In June 2017, a VA examiner indicated a diagnosis of cervical degenerative disc disease and radiculopathy. See June 2017 cervical spine VAX.  The first element of service connection is established for both disabilities.

The Board also finds that the Veteran sustained a neck during basic training when engaged in hand-to-hand combat using pugil sticks. The Board also finds that the Veteran sustained a back injury when an iron attack by a fellow marine caused him to fall over a bed rail.  The record does not include service treatment records. Nevertheless, the available evidence, including the Veteran's competent and credible testimony, his military personnel records, and buddy statements from various friends and family all corroborate the aforementioned in-service occurrences. The second element of service connection is established for both disabilities.  

As noted, the third element of service connection required a nexus or link between the currently shown disabilities and service.  Evidence on this point includes a report of VA examination in June 2017.  Following a review of the Veteran's records, the examiner provided a medical opinion that the back disabilities were less likely than not incurred in [service] or caused by the claimed in-service injury, event or illness.  As rationale, the examiner found significant medical records from Kaiser which show treatment of the Veteran's back within a few years after service.  He pointed to records from September 1982, four years after separation from service, when the Veteran was treated for a work injury back strain with pain that radiated to the legs and diagnosed as acute lumbar strain.  The examiner also noted Kaiser records dated in 1989 which document a complaint of acute back pain while playing basketball, diagnosed as muscle strain.  Other notes from the Palo Alto VA dated from 1987 forward include reference to longstanding back pain, and he was seen in 2009 with an acute exacerbation of chronic pain in the neck and lumbar spine.  The examiner noted, as does the Board, that a review of these medical records show not references [to] injuries or pain conditions related to his military service.  

Based upon the evidence of record, service connection is denied, as the third element of service connection has not been satisfied.

Although, as indicated previously, the Veterans' cervical and lumbosacral diagnoses are chronic disease listed in 38 C.F.R. § 3.309(a).  They were not diagnosed during service, or within the applicable presumptive period. Therefore, service connection can be granted on a presumptive basis.  Additionally, continuity of symptomatology is not demonstrated.  Even conceding the events the Veteran claimed in service, the records after service show treatment of an acute nature and unconnected to the events that occurred in service.  

The Board recognizes that he Veteran has consistently complained of back and neck pain. Of records are VAMC records from 1987 to 2017. The Veteran was discharged for service in the late 1970's and his first complaint of pain that he connected to an in-service injury occurred in the 2000's (decades after service discharge). During a September 2008 office visit, the Veteran reported experiencing neck and back pain for the past 30 years.  The Board finds that the Veteran's assertions of continuous or recurrent symptoms of the claimed disorder after service are not accurate because they are outweighed by other evidence of record which is negative for any findings or diagnoses of a back disability until years after service.  

Other evidence of record includes the Veteran's personnel file.  While not determinative, it is noteworthy that it does not contain any records showing the Veteran was placed on a profile during his year and a half of service.  

The Board acknowledges the Veteran's belief that his back disability was related to active service. However, his and the other statements alone do not establish a medical nexus. Indeed, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, they are not shown to be competent to render medical opinions on questions of etiology. As such, as lay people, they are without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that neither the appellant nor the Veteran is competent to address.

It light of the foregoing, the Board finds that the criteria for entitlement to service connection for low back and cervical spine disabilities have not been met.  


ORDER

Service connection for a low back disability is denied.

Service connection for a neck disability is denied.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs