Citation Nr: 1806217	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  09-33 424	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to service connection for residuals of a traumatic brain injury (TBI), other than headaches and a scar, to include neck and back pain.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

T. Davis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1985 to March 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied entitlement to service connection for the residuals of TBI.

The Veteran appeared at hearing before the undersigned in March 2013,

In May 2013, the Board remanded the appeal for further development, including an examination.

After the remand, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for the residuals of TBI, to include headaches and a scar from the in-service head injury; however, it determined service connection was not warranted for neck and back pain as a result of TBI.

This case was again before the Board in March 2016 and remanded for further development to include obtaining a VA examination and Social Security Administration (SSA) records.



FINDINGS OF FACT

The Veteran's current back neck pain disabilities were not caused by a disease or injury in service, to include an in-service head injury, or a service-connected disability.



CONCLUSION OF LAW

The criteria for entitlement to service connection for residuals of a traumatic brain injury (TBI), other than headaches and a scar, to include neck and back pain, have not been met.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309; 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Disabilities diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d).

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. §§ 1101, 1112; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309. 

Also entitlement to service connection me be granted on a secondary basis, is there is: (1) evidence confirming the Veteran has the currently claimed disability; (2) evidence of the service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the currently claimed disability



Facts and Analysis

The Veteran experienced a head injury during service. Specifically he was diagnosed with scalp laceration, blunt head trauma, and skull fracture, after another person attacked him. He is currently serviced connected for TBI residuals inclusive of headaches and scars. However, the RO has denied service connection for TBI residual inclusive of back and neck pain. Nonetheless, the Veteran contends that his current neck and back disabilities are also residuals of TBI.

The evidence of record demonstrates that the Veteran has current degenerative arthritis of the lumbar and cervical spines. February 2017 and May 2017 VA examiners independently diagnosed degenerative arthritis of the lumbar and cervical spine. He is also been diagnosed with sciatica and cervical spondylosis.

The Veteran's service treatment records substantiate his reports that he sustained a head injury in service. This appeal turns on whether a relationship exists between his current spinal degenerative arthritis and his in service injury.

SSA records as well as Pittsburgh VAMC treatment records have been associated with the claims file, however they fail to include any evidence demonstrating a relationship between the Veteran's neck and back disabilities and his active military service. 

The record also contains several medical opinions, none of which is in the Veteran's favor. In February 2013, after review of the entire claim file and examination finding, a VA examiner found that there was no clear evidence that the Veteran's reported neck and back pain are due to the February 1988 in-service assault, which resulted in TBI. The examiner further stated; "However, records indicated several other incidents over the years involving fights and assaults that may have resulted in back and neck injuries, these incidents occurred post military and are not related to service."

The Veteran underwent additional VA examinations in February, May and September 2017 for TBI, the cervical and lumbar spines, respectively.  
At a VA examination in February 2017, the examiner noted that chronic posttraumatic headaches in 2005 and "associated with that was neck and low back pain."

At the TBI examination the Veteran complained of daily headaches and throbbing pain mostly in the back of his head, but does not appear to have reported neck or back pain.  The examiner noted that the only current TBI residuals were headaches and a scar. He noted, neither back nor neck pain as a TBI residuals.  

The lumbar/cervical spine examiner opined that it was less likely than not(less than 50 percent probability) that the lumbar and cervical disabilities were incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner noted that the Veteran was competent to describe his current symptomology, which included daily headaches that radiate from the top of his head, down his neck to mid back. The examiner further noted that while in service the Veteran was hit in the head with a steel pole and required 72 stitches. However, upon review of the service treatment records, the examiner noted that there was no noted back injury or neck pain noted at time of the in-service TBI event. The examiner further provided that "the Veteran's current TBI exam dated February 9, 2017 notes no motor dysfunction" and that "a nexus could not be established relating the cervical and lumbar spine degenerative arthritis to the in-service head injury or the service connected TBI."

The Veteran has asserted that his back and neck pain are related to the in-service head injury, but this is a relatively recent contention.  He did not report neck or back pain as a TBI residual in his substantive appeal or at his hearing.  The Veteran's examination upon separation in 1988 shows a "normal" clinical evaluation of his spine and there is no evidence of a continuity of symptomatology.  The Veteran reported no back or neck problems on his Report of Medical History upon separation.  There is no other evidence of a nexus between current back or neck disability and a disease or injury in service. 



Accordingly, the evidence is against a finding that the Veteran's cervical and lumbar spine degenerative arthritis manifested to a compensable degree within his first post-service year, or that a continuity of symptomatology exists from the Veteran's time in service to the present day.  Indeed, although the Veteran is competent to attest to experiencing ongoing pain symptoms since service, the Board does not find his reported history of continuity to be credible.  

The Board adds that the Veteran has not been shown to have the background or expertise to provide a competent opinion linking his current spine disability to his in-service injury, nor his service connected TBI.  In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship.  As such, the question of etiology in this case may not be competently addressed by the Veteran's own statements.  

In conclusion, based on the analysis above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for residuals of TBI, specifically back and neck pain.  As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. § 5107(b).

ORDER

Entitlement to service connection for residuals of a traumatic brain injury (TBI), other than headaches and a scar, to include neck and back pain is denied.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs