Citation Nr: 18154795 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 10-44 849 DATE: December 4, 2018 ORDER Service connection for a lumbar spine disability is denied. Service connection for chronic thoracic strain, also claimed as a dorsal spine condition, is denied. FINDINGS OF FACT 1. The diagnosed lumbar spondylolysis represents a congenital defect. 2. The probative evidence indicates that a chronic lumbar spine disability was not shown in service or for many years thereafter, and that the current lumbar disabilities diagnosed as disc disease and mild degenerative arthritis are not related to service. 3. The probative evidence indicates that a chronic thoracic spine disability was not shown in service or for many years thereafter, and that the current thoracic spine disability diagnosed as mild degenerative arthritis is not related to service or service-connected disability. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The requirements for establishing service connection for a thoracic spine disability, also claimed as a dorsal spine condition, have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to April 1973. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO declined to reopen the claim for service connection for chronic lumbosacral strain and denied the claim for service connection for chronic thoracic strain. In June 2011, the Veteran testified at a Travel Board hearing over which the undersigned Veterans Law Judge presided. A transcript is of record. The Board issued a decision in September 2013, in which it reopened the claim for service connection for chronic lumbosacral strain and remanded that, and the claim for service connection for chronic thoracic strain condition, for additional development. The Board issued a decision in September 2014, which denied the claims for service connection for a lumbar spine disability and chronic thoracic strain. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2015 Joint Motion for Remand (Joint Motion), the parties requested that the Court vacate the September 2014 Board decision. In a May 2015 Order, the Court granted the Joint Motion. The claims were remanded by the Board in July 2015 and September 2017 for additional development. Service Connection Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that 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). Generally, 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); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). Service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence establishes that the familial conditions in question were incurred or aggravated during service. VAOPGCPREC 82-90 (July 18, 1990). 1. Service connection for a lumbar spine disability 2. Service connection for chronic thoracic strain, also claimed as a dorsal spine condition The Veteran contends that he is entitled to service connection for disabilities of the lumbosacral and thoracic spine because the claimed disorders began with an injury or disorder during service. As an initial matter, the record reflects that the Veteran has been diagnosed with lumbar and thoracic spine disabilities. Most recently, a November 2015 VA examiner diagnosed lumbar spine disorders of spondylolysis, disc disease, and mild degenerative arthritis and a thoracic spine disorder of mild degenerative arthritis. The Board therefore finds that the Veteran has met the current disability requirement for purposes of continuing the analysis of the claims for service connection. The service treatment records reflect recurrent complaints of and treatment for pain in the lower back after the Veteran strained his back in 1972. He was diagnosed with low back strain. X-rays were within normal limits. He was put on profile to avoid lifting over 50 pounds. On separation from service in March 1973, the Veteran reported a history of recurrent back pain and the examiner noted frequent complaints of low back pain determined to be chronic strain. A VA examination report dated in October 1979 recorded complaints of recurrent back pain since service. X-rays of the lumbar spine were within normal limits. Specifically, it was noted that the lumbar spine showed normal intervertebral disc spaces and alignment with no evidence of spondylolisthesis. The examiner diagnosed status post 1972 low back strain by history. VA treatment records indicate that the Veteran also sought treatment related to complaints of severe back pain this same month. Private treatment records document that the Veteran underwent neurological evaluation in May 1980 reportedly due to residuals of an injury suffered while in service in late 1972. During the evaluation, the Veteran reported that the in-service injury occurred when he was breaking up some ground with a pick and was pushed from behind and must have twisted his back as pain onset at that time. This was reportedly present for about a month and was felt to be a strain; it cleared up and recurred about six months later without particular injury. The pain again lasted a month and recurred again in 1974 and had been intermittent since then. Following physical examination, the impression was probable lumbosacral strain. A February 1983 private treatment record documents that the Veteran reported a history of back pain since 1972. At that time, there was some mild tenderness over the L4 and L5 area on the left side and x-rays of the lumbar spine showed a spondylolysis. The impression included spondylolysis at L5 on the left side; history of low back pain without clear etiology; and possible herniated nucleus pulposus. The Veteran was referred for neurological evaluation in March 1983. The impression was intractable lumbosacral pain without objective evidence of neurologic deterioration. No neurosurgical maneuvers such as myelography or surgery were planned. VA treatment records dated after March 1983 indicate that the Veteran was seen with continued complaints involving his back between October 1984 and October 1992. An October 1984 lumbar spine x-ray was normal with no significant interval change compared with the October 1979 films. The Veteran was admitted to the VA Medical Center in Albuquerque in March 1986 and underwent myelogram and CT of the spine, which were entirely normal, as were admission plain lumbosacral spine films. In May 1986, the Veteran was assessed with low back pain, etiology never determined, and a mental health consult from behavioral medicine was planned. The consult was conducted in June 1986 and testing at that time strongly suggested a psychogenic overlay to any perceived pain problems with possible use of physical symptoms to control unacceptable impulses and deal with normal stresses of living; secondary gain was also noted to be a likely large factor. An August 1986 orthopedic consult indicated that there was no evidence of spondylolysis, spondylolisthesis, or discogenic disease on x-ray. When the Veteran was seen with complaints in 1992, the impression was chronic low back pain. A VA examination dated in August 1998 recorded a history of onset of low back pain since 1972 when the Veteran injured his back in service, along with a diagnosis of chronic lumbosacral strain with recurrent acute exacerbations, as well as chronic thoracic strain with acute exacerbations. He also related pain in the thoracic spine. X-rays of the lumbar and thoracic spine were normal. Subsequent VA treatment records show ongoing treatment for a lumbar spine disability, along with a history of onset of low back pain following an in-service back injury in 1972, with subsequent motor vehicle accidents in the mid 80’s and 2001. VA treatment records also document that a December 2001 VA MRI of the lumbar spine showed mild degenerative changes and right posterolateral disc at L5-51 level causing foraminal narrowing at that level. See records dated in April 2002 and April 2004. An April 2011 clinical treatment note showed complaints of neck and back pain since an injury in 2004. May 2011 radiographic studies of the lumbar spine revealed minimal degenerative spondylosis and arthritic change. Upon review of the record, the Board notes that the Veteran was not shown to have arthritis of the lumbar or thoracic spine in service or within one year following his April 1973 discharge from service; as such, service connection cannot be established for arthritis on a presumptive basis. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). Thus, competent evidence linking the current condition with service is required to establish service connection. On the question of medical causation, the Board notes that the Veteran underwent a VA examination in January 2014, at which time an opinion regarding the origin of his lumbar and thoracic spine disorders was provided. In the May 2015 Joint Motion, however, the parties agreed that the January 2014 VA examination report was inadequate. As such, the opinion provided then will not be discussed. Given the determination made in the May 2015 Joint Motion, the claims were remanded by the Board in July 2015 in pertinent part to obtain an adequate opinion. The Veteran underwent a VA back conditions Disability Benefits Questionnaire (DBQ) in November 2015, at which time he reported his original back pain began in late 1972 after being pushed while swinging a pickaxe. The examiner reported that the Veteran was evaluated in December 1972 and was found to have a normal back exam and he had normal x-rays per his service treatment records. He was diagnosed with a lumbosacral strain (an acute muscle injury) and was given pain medication and light duty. The examiner also noted the Veteran was seen frequently during the rest of his active duty career and was evaluated in March and October 1973 for continued back pain, was found to have a normal exam, and was treated for back strain. His March 1973 separation physical showed continued lower back pain and a diagnosis of chronic lumbar strain. The examiner reported that the Veteran was evaluated in 1979 for a VA examination due to continued lower back pain. His exam was normal and his x-rays were normal. He was evaluated by a neurologist, Dr. C., in May 1980 and was found to have a normal exam, normal x-rays, and no evidence of discogenic disease or radicular pain. He was evaluated by Dr. C. in February 1983 and found to have mild tenderness over the L4-L5 area, no muscle spasms, and spondylolysis at L5. The examiner indicated that the Veteran was then sent for evaluation by a neurosurgeon, Dr. B.F., in March 1983, who found “no objective evidence of deterioration.” The examiner also reported that the Veteran had normal x-rays of the spine in 1985, 1992, and 1998 and that x-rays from 2011, 2013, and 2015 show minimal spondylosis and minimal degenerative changes. Following a detailed physical examination, the November 2015 VA examiner provided an opinion that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the current lumbar spine disorders of spondylolysis, disc disease, and mild degenerative arthritis are distinct and separate from his thoracic spine disorder of mild degenerative arthritis. The examiner further explained that spondylolysis, which the Veteran was diagnosed with in 1983 at the left L5 level, is a defect of one or both of the wing shaped parts of the vertebrae that is a congenital defect; spondylosis, on the other hand, is degenerative arthritis of the spine (which was not diagnosed until 2011 on x-rays). The examiner also explained that the Veteran had disc disease at L4-5 and L5-S1 as seen on a 2013 MRI, but had no evidence of similar disc bulges in his thoracic spine. The examiner determined that the spondylosis (degenerative arthritis) found at both levels is consistent with the expected degenerative arthritis to be found in a patient of this Veteran’s age and occupation history, consistent with the natural progression of back arthritis. Regarding the spondylolysis from February 1983, the November 2015 VA examiner reported that the Veteran’s spondylolysis represents a congenital defect of a portion of the L5 vertebrae; other than this congenital abnormality, his x-rays from 1972 until 1998 were normal. Dr. C. was concerned about a “possible” herniated disc in February 1983, but the neurosurgeon, Dr. F. concluded in March 1983 that the Veteran had a normal exam and “no objective evidence of deterioration.” Regarding the Veteran’s mild degenerative changes (or spondylosis) of his thoracic and lumbar spine segments, the November 2015 VA examiner reported that these changes represent the natural progression of arthritic changes in a 63 year old male with his active work history, and do not represent pathology or disability. The examiner indicated that the lumbar strain noted in service in December 1972 and the chronic strain reported at the Veteran’s March 1973 separation physical represent acute muscular injury, while noting that the Veteran had multiple normal exams during his active duty career and a normal exam today showing normal reflexes, normal range of motion, and no evidence of muscle spasms. Regarding the Veteran’s disc disease noted in 2011, 2013, and 2015, the November 2015 VA examiner reported that he had no evidence of disc disease during his active duty career and his lumbar strain (acute muscle spasms) did not cause his disc disease 40 years later. The opinion provided by the November 2015 VA examiner is afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). While the Veteran believes that his current lumbar and thoracic spine disabilities are related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of the Veteran’s lumbar and thoracic spine disabilities are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his current lumbar and thoracic spine disabilities is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the Veteran’s own opinion regarding the etiology of his current lumbar and thoracic spine disabilities is not competent medical evidence. The Board finds the opinion of the November 2015 VA examiner to be significantly more probative than the Veteran’s lay assertions. There is no competent medical opinion to the contrary. Based on the foregoing, the Board finds that the preponderance of the probative evidence is against a finding that the Veteran’s lumbar and thoracic spine disabilities arose in service or are etiologically related to service. To the extent that the Veteran reports he developed a thoracic spine disability as secondary to the lumbar spine disorder, there is no legal basis upon which to award service connection for the claimed thoracic spine disability on a secondary basis since service connection for a lumbar spine disability has not been established. 38 C.F.R. § 3.310. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims for service connection. As such, that doctrine is not applicable in the instant appeal, and the claims must be denied. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel