Citation Nr: 18150265 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 11-05 455A DATE: November 14, 2018 ORDER Entitlement to service connection for a cervical spine disorder is denied. Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. A cervical spine disorder was not manifest during service and arthritis was not manifest within one year of separation. A cervical spine disorder is unrelated to service. 2. A lumbar spine disorder was not manifest during service and arthritis was not manifest within one year of separation. A lumbar spine disorder is unrelated to service. 3. The Veteran is not service-connected for any disabilities. CONCLUSIONS OF LAW 1. A cervical spine disorder was not incurred in or aggravated by active service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. A lumbar spine disorder was not incurred in or aggravated by active service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been satisfied. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1993 to November 1994. These issues were previously remanded by the Board in March 2014, March 2016 and October 2017. The Veteran testified before a Veterans Law Judge (VLJ) at a January 2014 Travel Board hearing. That VLJ has since retired. In a March 2016 communication, the Veteran declined his right to appear before another VLJ. 1. Entitlement to service connection for a cervical spine disorder 2. Entitlement to service connection for a lumbar spine disorder Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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 -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran has been diagnosed with degenerative arthritis of the lumbar and cervical spine. Arthritis is identified as a “chronic disease” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). “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.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. 3.303 (b). The Veteran contends that his cervical and lumbar spine disorders are the result of an in-service injury when he was ordered to unload a vehicle. The Veteran reported that he was sent to a hospital and discharged the same day for a back injury. He reports that he has experienced pain since that in-service injury and that upon attempting to seek treatment at a VA hospital in 1995, he was turned away. Service treatment records document a normal spine and musculoskeletal system upon clinical evaluation at enlistment. The Veteran denied any relevant symptoms upon enlistment. July 1994 treatment records document treatment for back pain, which was assessed as acute muscle strain. Treatment records do not document the Veteran’s reported injury, and relevant hospital records are not available after VA took appropriate steps to obtain them. Clinical evaluation at the Veteran’s September 1994 separation examination documents a normal spine and musculoskeletal system. The Veteran did report recurrent back pain in the accompanying Report of Medical History. The Veteran submitted a March 2010 private medical opinion, in which the physician opined that the Veteran’s “damage to his spine could very well likely be the result of a traumatic injury sustained while in the armed services in 1994.” He did not provide a supporting rationale. A July 2015 VA examiner opined that the Veteran’s cervical spine disorder was less likely than not related to his active service, as there were no relevant notations in service treatment records. The examiner similarly opined that the Veteran’s lumbar spine disorder was less likely than not related to the Veteran’s active service, to include in-service complaints of back pain. In a January 2017 addendum opinion, another VA examiner agreed that the Veteran’s cervical spine disorder was less likely than not related to the Veteran’s active service. The examiner cited service treatment records, the Veteran’s lay statements, and initial complaints of neck pain in 2009. Specific to the Veteran’s lumbar spine disorder, the January 2017 examiner opined that it was less likely than not related to the Veteran’s active service. The examiner explained that documented in-service complaints were related to muscle strain, which was acute and transitory, and that the Veteran’s separation examination documented a normal spine. The examiner acknowledges the Veteran’s report of back pain, but notes that a 2008 spine X-ray was normal and a concurrent MRI showed small central disc protrusion. The examiner explained that it was unlikely that such a disorder occurred 14 years prior, while in service, and remained “small.” In June 2017, another VA examiner opined that the Veteran’s cervical spine disorder is less likely than not related to his active service. The examiner explained that medical literature does not support a correlation between in-service back pain and the Veteran’s current neck disorder. The June 2017 examiner similarly concluded that the Veteran’s lumbar spine disorder is less likely than not related to active service. The examiner again cites service treatment records, acknowledges the Veteran’s reported back injury, and the first documented complaint of back in pain in 2008. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the VA examiners’ opinions that the Veteran’s cervical and lumbar spine disorders are less likely than not related to his service as highly probative medical evidence on this point, particularly when viewed in concert. The Board notes that the examiners rendered their opinions after thoroughly reviewing the claims file and relevant medical records. The examiners noted the Veteran’s pertinent history and provided reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician’s opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). Here, the Board finds the March 2010 private medical opinion to be of less probative value than the multiple VA medical opinions. The private physician provided no medical rationale to support a contention that the Veteran’s current arthritis of the spine is related to his active service. The examiner did not discuss the Veteran’s service treatment records or any other potentially relevant medical or lay evidence. The examiner provides no medical explanation as to why the Veteran’s current disability may be related to his service. In this instance, the Board finds the VA examiners’ opinions, particularly when viewed in concert, to be the most probative as they provided unequivocal and detailed medical opinions supported by pertinent rationales based upon a review of the Veteran’s claims file, including relevant medical and lay evidence, when concluding that the Veteran’s cervical and lumbar spine disorders were not related to his service. The Board has also considered the lay statements of record, to include the Veteran’s previously referenced assertions. With respect to the Veteran’s report that he has experienced a continuity of symptoms since service, he is competent to report his observations and relate what he was told by medical professionals. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran’s lay evidence of onset and continuity is far less probative than the opinions of the VA professionals, as the VA medical opinions are far more detailed and reasoned; thus warranting a greater probative value. The Board finds that the probative value of the lay assertions are outweighed by the clinical evidence of record. Physical examination upon separation from service revealed a normal spine and musculoskeletal system. The Board notes that the Veteran reported recurrent back pain upon separation, however, the Board affords the medical evidence of record, to include physical examination upon separation and the VA medical opinions, greater probative value than the more general lay assertions of the Veteran. In addition, the Board notes that the medical evidence suggests that the Veteran’s reported back pain upon separation pertained to an acute and transitory condition, and was not the manifestation of the Veteran’s current chronic cervical and lumbar spine disorders. In sum, there is no reliable evidence linking the Veteran’s cervical and lumbar spine disorders to service. The contemporaneous records establish that there were no documented manifestations of a chronic neck or back disorder in service, the spine was physically normal upon separation, there were no manifestations of arthritis within one year of separation, and arthritis was first manifest many years after separation. The Board finds the contemporaneous records to be far more probative and credible than the Veteran’s report of onset, continuity, and treatment. Here, chronic disease (arthritis) of the cervical and lumbar spines was not “noted” during service or within one year of separation within the meaning of section 3.303(b). While the Board notes the Veteran’s reported history of in-service events, it finds that the service treatment records do not show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Rather, despite his report of a history of back pain, the spine was normal at separation. Furthermore, the evidence does not establish that arthritis of the spine was manifest to a compensable degree within one year of separation. 38 C.F.R. §§ 3.307; 3.309. The evidence of record shows that arthritis was manifest many years after service and is more likely related to a post-service event. The Veteran was not shown to have arthritis, or any relevant chronic neck or back disorder in service, and did not have characteristic manifestations of such a disorder until multiple years after discharge. In essence, the evidence establishes that the spine was normal upon separation from service and the onset of arthritis occurred many years after service. The Board finds that the contemporaneous in-service and post-service treatment records are entitled to greater probative weight and credibility than the lay statements of the Veteran. As previously noted, the Board also finds the VA examiners’ opinions to be of greater probative value than the private physician’s opinion, as a result of more thorough rationales. The more probative evidence establishes that he did not have a chronic cervical or lumbar spine disorder during service or within one year of separation. Furthermore, the evidence establishes that the remote onset of cervical and lumbar spine disorders is unrelated to service. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) As noted above, service connection is not warranted for a cervical spine or lumbar spine disorder. The Veteran is not service-connected for any disability. As a result, entitlement to a TDIU is not warranted, as the Veteran is not unemployable due solely to service-connected disabilities. 38 C.F.R. § 4.16 (a), (b). Biswajit Chatterjee Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. R. Stephens, Counsel