Citation Nr: 18149964 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 10-25 293 DATE: November 14, 2018 ORDER Service connection for a low back disability is denied. Service connection for a neck disability is denied. FINDINGS OF FACT 1. The Veteran’s low back disability did not manifest during active military service, is not shown to have manifested within one year from the date of his separation from active service, and the weight of evidence is against a finding that the Veteran’s current low back disability is related to his active service. 2. The Veteran’s neck disability did not manifest during active military service, is not shown to have manifested within one year from the date of his separation from active service, and the weight of evidence is against a finding that the Veteran’s current neck disability is related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability have not been satisfied. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for a neck disability have not been satisfied. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1966 to May 1970. As a preliminary matter, the Board of Veterans’ Appeals (Board) observes that the above listed issues were remanded in a June 2016 Board decision to comply with the Veteran’s request for a video conference hearing before a Veterans Law Judge. In a July 2016 letter, the Veteran and his representative were notified that the video conference hearing was scheduled for August 15, 2018. The Board notes that the Veteran failed to report for the scheduled hearing, did not request postponement of the hearing, and has not submitted a motion for a new hearing date. As such, this case is being processed as though the request for a hearing has been withdrawn. 38 C.F.R. § 20.702(d). Additional VA treatment records were added to the Veteran’s claims file since the last prior adjudication of the appeal, but they are cumulative of prior treatment reports considered by the agency of original jurisdiction (AOJ) in the first instance for back pain, and they do not contain assertions of in-service onset or in-service injury for either claimed disability. Thus, there is no prejudice to the Veteran in proceeding with a decision on the merits. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a period of war or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. LOW BACK DISABILITY The Veteran contends that his current low back disability, diagnosed as degenerative arthritis, is related to back pain in service. See August 2007 VA Form 21-526. In the September 2008 VA Form 21-4138, the Veteran reported that his duties as a boatswain in the Navy included loading heavy weapons systems, and that he has had back pain since service. The Veteran also indicated that, under the circumstances of serving during a period of war in the Republic of Vietnam, he did not seek medical treatment for his back pain in service. While the Veteran is competent to report on the onset of observable symptoms such as pain, he has not been shown to have the specialized training to diagnose or opine as to the etiology of a complex medical condition such as arthritis. 38 C.F.R. § 159(a)(2); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The medical evidence of record is notably silent for any complaints of low back pain until approximately 2002, more than 32 years after the Veteran’s separation from service. See January 2004 SSA Disability Report; and August 2006, October 2008, February 2010, February and April 2014, and April 2018 VA treatment records. The Board finds that service connection is not warranted on a presumptive basis. There is no showing of back pain or disability in service treatment records, and the Veteran was assessed as having a “normal” clinical evaluation of the spine upon separation on his Report of Medical Examination in May 1970. Additionally, there is no showing that the Veteran’s current low back disability manifested within one year of separation from service. As discussed below, the preponderance of evidence is also against a finding that he demonstrated continuity of symptomatology for his current low back disability after service. The Veteran was afforded a VA examination in December 2015 to assess whether his current low back disability is related to service. The examiner conducted an in-person examination and reviewed the Veteran’s claims file, and opined that the Veteran’s current low back disability is less likely than not (less than 50 percent probability) related to service. The examiner explained that there is no indication of a back injury in service, or nexus between his current diagnosis of degenerative arthritis of his low back and his military service. There is no positive medical opinion of record linking the Veteran’s current low back disability to his military service. While the Board acknowledges the Veteran’s belief that his current low back disability is due to loading heavy weapons systems in service, as noted above, he is not competent to opine as to the etiology of degenerative arthritis. Insofar as the Veteran asserts he has had back pain since service, the Board finds the assertions to be not credible in light of prior conflicting statements made to his treating physicians regarding date of onset. The Board observes the Veteran has consistently reported to his treating physicians that his low back pain began in 2002 after he fell from a second story roof. The Veteran began seeking pain management for his low back in 2003, and reported bilateral low back, sacral pain with a radiation component and intermittent numbness and tingling after his fall. See November 2003 private treatment records from Dr. G.K. In the January 2004 Social Security Disability Report the Veteran reported his low back disability first bothered him in October 2002. In the October 2008 VA internal medicine note, the Veteran reported the onset of his low back pain began in 2002 following a fall of about 20 feet. See also August 2006 VA mental health note; September 2007, November 2009 and February 2010 VA pain clinic note; February 2014 VA substance abuse note; and April 2014 VA PTSD examination. The Board places greater weight of probative value on the history the Veteran presented to medical professionals for treatment purposes (i.e., during active service and years thereafter) than it does on his recent statements to VA in connection with his claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). In addition, the Veteran’s history of prior inconsistent statements weighs against his credibility. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of a veteran). The preponderance of evidence is against a finding that the Veteran’s low back disability is related to service, or that it was manifest to a compensable degree within one year of discharge; therefore, the benefit of the doubt rule does not apply and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. 2. NECK DISABILITY The Veteran contends that his current neck disability, diagnosed as degenerative arthritis, is related to neck pain in service. See August 2007 VA Form 21-526. Additionally, in the September 2008 VA Form 21-4138, the Veteran reported that the physician who treated his carbuncle in service stated the Veteran would have residuals later in life. The Board observes that the Veteran was treated for a left shoulder carbuncle in service. See January, February, March, and April 1968 service treatment records. The Board has considered the Veteran’s statement that he believes his current neck disability, diagnosed as degenerative arthritis, is related to neck pain in service, including as related to the left shoulder carbuncle documented in his service treatment records. While the Veteran is competent to report on the onset of observable symptoms such as pain, he has not been shown to have the specialized training to diagnose or opine as to the etiology of a complex medical condition such as arthritis. 38 C.F.R. § 159(a)(2); Layno, 6 Vet. App. at 470. The evidence of record indicates the Veteran consistently reported the onset of his current neck disability beginning in 1992, more than 21 years after his separation from service. See January 1992 VA treatment records. The Board finds that service connection is not warranted on a presumptive basis. There is no showing of neck pain or disability in service treatment records, and the Veteran was assessed as having a “normal” clinical evaluation of the neck and spine upon separation on his Report of Medical Examination in May 1970. Additionally, there is no showing that the Veteran’s current neck disability manifested within one year of separation from service. As discussed below, the preponderance of evidence is also against a finding that he demonstrated continuity of symptomatology for his current neck disability after service. The Veteran was afforded a VA examination in December 2015 to assess whether his current neck disability is related to service. The examiner conducted an in-person examination and reviewed the Veteran’s claims file, and opined that the Veteran’s current neck disability is less likely than not (less than 50 percent probability) related to service. The examiner explained that there is no indication of a neck injury in service, or nexus between his current diagnosis of degenerative arthritis of his neck and his military service. There is no positive medical opinion of record linking the Veteran’s current neck disability to his military service, including as related to the left shoulder carbuncle treated in service. While the Board acknowledges the Veteran’s belief that his current neck disability is related to service, including the left shoulder carbuncle, as noted above he is not competent to opine as to the etiology of degenerative arthritis. Insofar as the Veteran asserts he has had neck pain since service, the Board finds the assertions to be not credible in light of prior conflicting statements made to his treating physicians regarding date of onset. The Board observes VA treatment records indicate the Veteran consistently reported his current neck disability began in 1992. In January 1992 VA preoperative records for the Veteran’s cervical discectomy, he reported he incurred an injury to his neck in August 1991 while lifting cement. See also July 1993 VA treatment records. The Veteran reported injuring his neck again in January 1992, and had corrective surgery to repair his cervical discectomy. See June 1992 VA treatment records. As above, the Board assigns more probative value to the history the Veteran presented to medical professionals for treatment purposes than it does on his recent statements to VA in connection with his claim for monetary benefits, and his history of prior inconsistent statements weighs against his credibility. Curry, 7 Vet. App. at 68; Cartwright, 2 Vet. App. at 25. The preponderance of evidence is against a finding that the Veteran’s neck disability is related to service, or that it was manifest to a compensable degree within one year of discharge; therefore, the benefit of the doubt rule does not apply and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Mask, Associate Counsel