Citation Nr: 18145874 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-32 649 DATE: October 30, 2018 ORDER Entitlement to service connection for thoracolumbar spine disorder is denied. Entitlement to service connection for cervical spine disorder is denied. Entitlement to service connection for headaches is denied. FINDINGS OF FACT 1. The objective medical evidence shows that the Veteran’s thoracolumbar spine disorder is not caused by an event, injury or illness during active service. 2. The objective medical evidence shows that the Veteran’s cervical spine disorder is not caused by an event, injury or illness during active service. 3. The objective medical evidence shows that arthritis, as associated with cervical spine disorder, did not manifest to a compensable degree within one year of separation from active service. 4. The objective medical evidence shows that the Veteran’s headaches are not caused by an event, injury or illness during active service, nor did they manifest to a compensable degree within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for thoracolumbar spine disorder have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for cervical spine disorder have not been met, nor are they presumed to be. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for service connection for headaches disability have not been met, nor are they presumed to be. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from May 2006 to May 2010. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any 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). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree after separation from active service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). 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. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing and in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). 1. Entitlement to service connection for thoracolumbar spine disorder. 2. Entitlement to service connection for cervical spine disorder. 3. Entitlement to service connection for headaches. The Veteran’s service treatment records (STRs) show that in his April 2006 enlistment examination, the Veteran denied having current or past “recurrent back pain or any back problem,” “frequent or severe headaches,” “a period of unconsciousness or concussion,” or “arthritis.” The categories of “head, face, neck, and scalp” and “spine, other musculoskeletal” were checked off as normal. In an in-service Medical Surveillance Questionnaire, compiled between February 2007 and December 2009, the Veteran reported that between May and September 2006 he strained back muscles by lifting heavy objects, the improper wearing of his pack during a hike and by continuous exercising. He further reported that, between November 2007 and May 2008, he suffered a traumatic brain injury when the vehicle he was in hit a large bump. The Veteran’s in-service Chronological Record of Medical Care reflects that a September 2006 treatment note for left-knee pain states that the Review of Systems otherwise showed no reports by the Veteran of musculoskeletal symptoms. Physical findings showed normal appearance and motion for hips. In December 2007, while deployed in Iraq, the Veteran presented with low-back pain for the past three days. He reported the onset of pain began after some weight-lifting exercises. The examiner found mild tightness and swelling at the posterior lower back centerline at approximately L4-L5 and noted that the Veteran experienced increased pain when arching and twisting his back and when rising from a seated position. There was no numbness or tingling in the lower extremities. In both his March 2008 and August 2008 Post-Deployment Health Reassessments, the Veteran reported “very good health” and no difficulties from health problems in performing his regular activities of daily living. Although the Veteran reported in the August 2008 Reassessment that he had a head injury during deployment, he did not mark affirmatively the category of “bad headaches;” nor did he so mark “back pain.” The treatment provider designated the Veteran as not at potential risk for traumatic brain injury. August 2008 in-service treatment notes show that the Veteran presented after being struck on the jaw by a fist the night before, hitting his head when he fell and being told he had lost consciousness for two minutes. The examiner noted hematoma in the occipital region of the head, with erythema, edema, tenderness to palpation, ecchymosis, and minimal sanguinous discharge. In a June 2009 retention examination, the Veteran responded affirmatively to current or past “recurrent back pain or any back problem,” “a period of unconsciousness or concussion” and “dizziness and fainting spells,” but reported this pertained to instances of dehydration. He admitted “numbness and tingling,” but reported that this was only in regard to his arm. However, he denied “frequent or severe headaches” and “a head injury, memory loss or amnesia.” The STRs indicate there appear to have been either two separation examinations for the Veteran or one separation examination conducted in two parts. In any case, there were examinations designated “separation” in November and December 2009. The November 2009 examination shows that the Veteran answered affirmatively to current or past “recurrent back pain or any back problem,” “frequent or severe headaches” and “a period of unconsciousness or concussion.” He denied current or past “a head injury, memory loss or amnesia.” The Veteran reported hurting his back while deployed in Iraq and reported being knocked out when struck in the face in August 2008. The examiner noted the Veteran’s report that, although having complained of back pain since his deployment in Iraq, the Veteran now stated he “got better and has a little pain when carrying heavy weights.” He further noted the Veterans complaints of headaches which last a few seconds, but he was unable to say how frequently. However, in the December 2009 separation examination, the Veteran denied “recurrent back pain or any back problem,” “frequent or severe headaches” and “a period of unconsciousness or concussion.” He again denied current or past “head injury, memory loss or amnesia.” The examiner noted and commented only on unresolved and untreated conditions of the knees, ankles, right foot, and right shoulder. After active service, an October 2010 VA traumatic brain injury consultation note, after summarizing the Veteran’s reports of his 2008 motor vehicle accident while deployed in Iraq, noted that the Veteran “has very vague complaints about dizziness, balance problem and headache.” The treatment provider went on to note the Veteran’s feelings of anxiousness. In a November 2010 VA traumatic brain injury note, the Veteran reported neck and upper-back pain. Additionally, as a neuro-behavioral symptom, the Veteran’s headaches, as reported, were thought to be “moderate.” The Veteran has submitted a June 2013 medical statement and opinion of Dr. T.N, a chiropractor. Dr. T.N. noted that the Veteran presented with neck and back pain, reporting its presence for the past six-to-seven years, originating in the period of his active duty in the Marines; the pain is chronic in nature, with intermittent pains ranging from dull to sharp, inhibiting him from performing activities of daily living. Dr. T.N. added that the Veteran also complained of tension-type headaches, originating in the back of the neck and radiating into his forehead, occurring multiple times a week; the pain makes it difficult to concentrate at school; and it causes associated sleep disturbances. On examination, Dr. T.N. found “the following tests were positive:” Bilateral Cervical Compression, with pain localized in the cervical region. Bilateral Shoulder Depression Test, with diffuse pains extending into the shoulders. Bilateral Soto-Hall Test, with generalized pain in the neck and upper thoracic spine. Well Leg Raiser Test produced diffuse discomfort in the lower lumbar spine at 60 degrees. X-rays results were the following: Cervical Kyphosis with [degenerative joint disease] at levels C3/C4 and C4/C5. Minor left Thoracic scoliosis with apex at level T4. Encroachment of neuroforamina between levels L2/L3 and L3/L4. Using the diagnostic codes 739.1, 739.2., 739.3, 723.1, 724.2, and 729.4 of the International Statistical Classification of Diseases and Related Health Problems (2013), Dr. T.N. diagnosed the Veteran in the first three codes with nonallopathic lesions of the cervical, thoracic and lumbar regions. The remaining three are for cervicalgia, lumbago and fasciitis (unspecified), respectively. Dr. T.N. stated: My final conclusion, after having reviewed [the Veteran’s] service medical records and completing the examination and x-rays, is that injuries that [the Veteran] presented to my office with are a direct result of injuries sustained while serving in the Marines. The chronic nature of his pain, with correlated objective tests and x-ray findings lead me to believe the damage has been present for some time now. An October 2013 VA primary care physician note states the Veteran had seen a chiropractor recently for back pain and had x-rays taken. The primary care physician assessed the Veteran with chronic back pain. A June 2014 and VA telephone encounter note states the Veteran reported a one-month history of persistent on-and-off severe headaches at a pain level of 7 out of 10. He stated he had headaches while in the military and had been having headaches on-and-off and sporadic dizziness. However, it was further noted that since developing headaches, the Veteran had not yet tried any home remedies, such as pain-relieving medications. In a March 2015 VA examination for thoracolumbar spine, the VA examiner found some reduced range of motion, overall moderate pain affecting function, normal muscle strength, normal sensory responses, negative straight leg raising test results, no radiculopathy pain or symptoms, no intervertebral disc syndrome, and no imaging studies had been made. He diagnosed the Veteran with mechanical back pain syndrome and noted the impact on occupation tasks as being limited in bending, tilting and twisting of the torso on occasion, but able to perform any type of occupational task without significant restrictions. The March 2015 VA examiner opined that the Veteran’s lumbar spine injury is less likely as not incurred in or caused by a combat-claimed in-service injury, event or illness during military service. He explained: Rationale: The Veteran is claiming a lumbar spine injury and thoracic spine injury and has not been previously rated for this. On today’s exam, the Veteran presents with decreased [ranges of motion], with pain on motion of the back. Records were reviewed and the STRs are silent at this time regarding a thoracic spine injury. Considering the evidence, the Veteran does currently have a thoracic spine condition. However, there are no records in the STRs regarding the Veteran’s thoracic spine condition during service. At this time, there is insufficient evidence to support his current thoracic spine condition is related to service. With that being said, the Veteran’s thoracic spine condition is less likely related to his service. Also in March 2015, the Veteran presented for a VA examination for cervical spine, in which the VA examiner diagnosed the Veteran with cervical sprain/strain. He found some reduced range of motion, overall moderate pain affecting function, normal muscle strength, normal sensory responses, normal cold sensation test results, no radiculopathy pain or symptoms, no intervertebral disc syndrome, and no imaging studies had been made. He noted the impact on occupational tasks as being limited in constant tilting and turning of the head on occasion, but able to perform any type of occupational task without significant restrictions. The March 2015 VA examiner opined that the Veteran’s cervical spine injury is less likely as not incurred in or caused by a combat-claimed in-service injury, event or illness during military service. He explained: Rationale: The Veteran is claiming a cervical spine injury and has not been previously rated for this. On today’s exam, the Veteran presents with decreased [ranges of motion], with pain on motion of the cervical spine. Records were reviewed and the STRs are silent at this time regarding a cervical spine injury. Considering the evidence, the Veteran does currently have a cervical spine condition. However, there are no records in the STRs regarding the Veteran’s cervical spine condition during service. At this time, there is insufficient evidence to support his current cervical spine condition is related to service. With that being said, the Veteran’s cervical spine condition is less likely related to his service. The Veteran underwent a March 2015 VA examination for headaches, in which the VA examiner diagnosed the Veteran with “migraine, including migraine variants.” The March 2015 VA examiner further found work ability limited to tasks not requiring much concentration, but able to perform general activities without significant restrictions. He opined that the Veteran’s headaches are less likely as not incurred in or caused by a combat-claimed in-service injury, event or illness during military service. He explained: Rationale: The Veteran is claiming headaches and has not been previously rated for this. On today’s exam, the Veteran reports a history of complaints of headache pains that occur on the right side of the head. The headaches are associated with sensitivity to light and changes in vision. He notes that the symptoms last less than 1 day and are reportedly prostrating. Records were reviewed and the STRs are silent at this time regarding headaches. Considering the evidence, the Veteran does currently have condition of headaches. However, there are no records in the STRs regarding the Veteran’s headaches during service. At this time, there is insufficient evidence to support his current complaints of headaches are related to service. With that being said, the Veteran’s headaches are less likely related to his service. The Veteran contends that the March 2015 VA examinations are inadequate because the March 2015 VA examiner failed to order any diagnostic testing. Yet, in the thoracolumbar spine and cervical spine examinations, the March 2015 VA examiner made range of motion measurements, both initial and on repetitive use; physically manipulated all segments of the lower extremities for muscle strength testing; conducted a sensory examination and straight leg testing; examined for symptoms of radiculopathy; and assessed functional impact. For the headaches examination, the March 2015 VA examiner questioned the Veteran closely about symptoms, carried out a neurologic examination and assessed reflexes. The thoroughness of the March 2015 VA examiner’s extensive and various testing is borne out by the numerous findings he set forth. Moreover, in each of the three examinations, the March 2015 VA examiner specifically stated the Veteran does currently have a current condition. It presently eludes the Board as to what would be revealed by further diagnostic testing. The diagnoses are not in dispute; comprehensive physical testing maneuvers on examination confirm reported current symptoms; and signs detected on examination are consistent with both reported and demonstrated symptoms. At this point, the Board must emphasize that the issue for determination is whether in-service events, injuries or illnesses directly caused each of the Veteran’s current disorders. The March 2015 examiner, in explaining his opinions, repeatedly referred to the STRs for what they could tell him about direct causation and its relation to service. It is these past in-service treatment records which would provide determinative evidence of direct causation. As it is, further testing would merely confirm what is not in dispute, that is to say, the nature, extent and severity of the Veteran’s current disabilities. For these reasons, the Board concludes that there is no reasonable possibility that additional testing would provide further assistance to the Veteran in substantiating his claims. The Veteran further contends that the March 2015 VA examiner failed to address the diagnostic results provided in Dr. T.N.’s June 2013 medical statement. Additionally, he asserts that the agency of original jurisdiction (AOJ) failed to have the March 2015 VA examiner “amend his opinion[s] to address the conflicting medical evidence, to include the results found in the diagnostic testing revealing [the Veteran] suffered from cervical kyphosis with [degenerative joint disease] at levels C3/C4 and C4/C5, minor left thoracic scoliosis with apex at level T4 and encroachment of neuroforamina between levels L2/L3 and L3/L4.” So, too, for the same reasons stated above, there is no probative value for establishing the Veteran’s claims in having the March 2015 reconcile his findings with those of Dr. T.N. Variances or dissimilarities of findings pertaining to pathology are not at issue; causation and origin are. As it is, Dr. T.N.’s opinion states “[m]y final conclusion, after having reviewed his service medical records and completing the examination and x-rays, is that injuries that [the Veteran] presented to my office with are a direct result of injuries sustained while serving in the Marines.” No further explanation follows. Dr. T.N. makes findings, he identifies the tests and x-rays, but he does not explain the reasons or the basis on which he concludes the Veteran’s disorders are the “direct result of injuries sustained while serving in the Marines” (emphasis added). Furthermore, he states that the “chronic nature of his pain,” the “correlated objective tests” and “x-rays findings” indicate that the disorders have “been present for some time now.” This observation appears to be intended to support the assertion that the disorders originated in service and have been ongoing since. However, Dr. T.N. does not set forth what was shown in the testing or revealed in the x-rays. It is otherwise impossible to conclude why such results, first, indicate longstanding signs and symptoms and, second, why any of that might show direct causation from in-service events, injuries or illnesses. A medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.” Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only “data and conclusions.” Nieves-Rodriguez v. Peake, 22 Vet. App 295, 304 (2008). Dr. T.N. has provided a positive nexus opinion, but without offering reasons or a basis for it. Without more, its statements are speculative and conclusory and, therefore, of limited probative value. For the reasons already stated, the Board finds the three opinions of the March 2015 VA examiner to be of greater probative weight. The foregoing summary of the treatment record shows that the STRs contain the Veteran’s reports of occurrences of injuries. In particular, as stated above, the Veteran was examined for low-back pain in December 2007 while on deployment. By his own report, he experienced low-back pain after weight-lifting exercises. After noting the Veteran symptoms as reported and making his own observations, the December 2007 in-service examiner provided no assessment, but only recommendations for ice packs, pain relief medication and proper weight-lifting techniques. In the March and August 2008 Post-Deployment Health Reassessments which followed, the Veteran, although he reported a head injury during deployment, otherwise reported overall good health, no bad headaches, no back pain, and he was determined by the post-deployment examiner not the treatment provider be at risk for traumatic brain injury. Thus, the Veteran never sought treatment for motor vehicle accident injuries to his spine and head during deployment or after, he was never in fact treated during service and he was never diagnosed with motor vehicle accident injuries, strain from carrying a heavy pack while in training or deployed or even strain from weight-lifting exercises. There is no in-service record of treatment, in which signs and symptoms were identified, treatment given and diagnoses made, on which to base a causal connection of the Veteran’s current disabilities with events, injuries or illnesses in service. As stated at the beginning of this decision, certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree after separation from active service, usually within one year. Dr. T.N.’s x-ray findings included degenerative joint disease of the cervical spine, which would indicate arthritis. No such finding was made for the thoracolumbar spine. The Board does not have the knowledge or training to confirm or dispute this finding. As it is part of the evidence of record, the Board further notes that arthritis is also included among chronic diseases for purposes of presumptive service connection. Additionally, “[o]ther organic diseases of the nervous system,” as a category, is included among chronic diseases. VA considers non-ocular-related headaches to be an organic disease of the nervous system. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309 (e). The Veteran reported neck pain in November 2010, approximately six months after active service. However, although the report was duly noted, there was no identification of symptoms, no examination and no record of treatment, therefore giving no indication of arthritis, as associated with the Veteran’s cervical spine disorder, manifesting conceivably “to a compensable degree.” The medical evidence shows that the earliest report after active service of headaches was in October 2010, approximately five months after separation. As stated in the above summary of the treatment record, the treatment provider noted that the Veteran “has very vague complaints about… headache.” Besides no treatment record, from the treatment provider’s observation, there is no clinical basis on which to conclude that headaches were in fact manifesting to a compensable degree. Although arguably “noted” during service in the November 2009 separation examination, the objective medical evidence does not establish for headaches the “same” symptomatology after service. As already stated, the October 2010 VA treatment provider had merely noted “vague complaints” of headaches. There is no identification of symptoms and no record of treatment. As late as October 2013, the Veteran’s VA primary care physician noted that since developing headaches, the Veteran was not even treating himself, that is, he had not yet even tried over-the-counter pain relievers. The foregoing does not indicate a nexus between current headaches and any discernible post-service symptomatology. Based on the objective medical evidence overall and the findings and opinions of the March 2015 VA examiner in particular, the Board finds the Veteran’s thoracolumbar spine disorder is not caused by an event, injury or illness during active service. The Board finds that cervical spine disorder is not caused by an event, injury or illness during active service. The Board also finds arthritis, as associated with cervical spine disorder, did not manifest to a compensable degree within one year of separation from active service. The Board further finds headaches are not caused by an event, injury or illness during active service, nor did they manifest to a compensable degree within one year of separation from active service. Consequently, service connection for these disorders has not been established and presumptions of service connection as chronic diseases for headaches and for arthritis, as associated with cervical spine disorder, are not applicable. Conclusion The Board has reviewed and carefully considered the Veteran’s statement accompanying his July 2015 Notice of Disagreement and the statement accompanying his July 2016 VA Appeals Form 9, as well as his reports to treatment providers, as they appear throughout the record. These have helped the Board in understanding better the nature and development of the Veteran’s disorders and how they have affected him. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that he is not competent to diagnose orthopedic and neurological disorders or interpret accurately clinical findings pertaining to them, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must look to the medical evidence when there are contradictory findings or statements inconsistent with the record and it must rely on clinical findings and opinions to establish the connection of current disabilities to service-related events, injuries or illnesses or determine their current level of severity. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Based on the evidence of record, for each claim the Board has made it findings as stated above. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claims, the doctrine is not applicable and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Franke, Associate Counsel