Citation Nr: 18155803 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 00-07 213 DATE: December 6, 2018 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a thoracolumbar spine disability is denied. FINDINGS OF FACT 1. The preponderance of evidence is against a finding that the Veteran’s cervical spine disability is the result of a disease or injury incurred in or aggravated by active service. 2. The preponderance of evidence is against a finding that the Veteran’s thoracolumbar spine disability is the result of a disease or injury incurred in or aggravated by active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In May 2015, the Board denied service connection for a cervical spine disability. The Veteran appealed the decision to the Court of Appeals to Veterans Claims (Court). In January 2016, the Court granted a joint motion for partial remand (JMPR) regarding the Board’s May 2015 decision. In the JMPR, the parties agreed the Veteran’s initial service connection claim included both cervical and thoracolumbar spine disabilities due to his reports of neck and back pain. The parties also agreed the Board relied on an inadequate February 2014 VA opinion in its analysis of the Veteran’s service connection claim for a cervical spine disability. These matters were most recently before the Board in August 2017, when they were remanded for further development. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for a cervical spine disability is denied. The record establishes the Veteran has degenerative changes of the cervical spine; therefore, the current disability element of his service connection claim has been established. The Veteran claims his current cervical spine disability is the result of in-service injuries, to include a rough helicopter landing during his second period of active service. The Veteran has been unable to provide a specific date for the rough helicopter landing, but has reported it occurred at some point between 1972 and 1973. VA has obtained several opinions regarding the Veteran’s claim. As previously noted, the parties to the January 2016 JMPR agreed that a February 2014 VA opinion was inadequate to make an informed decision on the Veteran’s claim because the examiner failed to properly consider service treatment records. The Board has also deemed a December 2017 VA opinion inadequate because it appears the examiner’s rationale was primarily based on the absence of contemporaneous service treatment records regarding the reported in-service injury. In light of the deficiencies in the opinions provided by VA examiners, the Board requested an expert opinion from an orthopedist with the Veterans Health Administration (VHA). See 38 C.F.R. § 20.901. In May 2018, a VHA orthopedist, D.K., D.O., provided an opinion indicating the Veteran’s current cervical spine disability is not likely the result of an in-service injury, to include the Veteran’s reports of a neck injury during a rough helicopter landing during his second period of active service. D.K., D.O., fully acknowledged the Veteran’s lay reports and notations of back pain in service treatment records, but noted the minimal degenerative changes of the cervical spine shown on radiographs in March 2001 were more consistent with normal wear and tear due to aging and were not consistent with a traumatic cervical spine injury in service. D.K., D.O., further noted traumatic injuries cause “significant radiographic changes in a relatively short period of time (within five years).” D.K., D.O., explained the level of degeneration shown on radiographs in March 2001 would be more significant if the Veteran sustained a traumatic cervical spine injury in service. The Board finds the May 2018 VHA opinion to be the most probative evidence with respect to the Veteran’s service connection claim for a cervical spine disability. D.K., D.O., considered an accurate factual history of the claimed disability and provided a well-reasoned rationale to support his opinion that goes beyond the mere absence of contemporaneous treatment records documenting an in-service injury. The Board notes there is no competent evidence that links the Veteran’s current cervical spine disability to service. Although the Veteran is competent to report observable symptomatology, he does not have the requisite skill or training to address a complex medical question such as the etiology of his current cervical spine disability, which requires x-rays to diagnose. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) (noting evidence that indicates that the claimant’s disability may be associated with service must go beyond the claimant’s own statements suggesting that such a link exists). The Board finds medical expertise highly relevant in this case as the Veteran’s disability is a condition that affects large segments of the population as a result of the aging process. Simply put, the Board cannot substitute the Veteran’s lay assertions for the judgment of medical professionals with regard to etiological questions for a disability that is not capable of lay observation. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). The Board recognizes the Veteran’s cervical spine disability is a form of arthritis, which constitutes a chronic disease within the meaning of 38 C.F.R. § 3.309(a). Yet, the degenerative changes of the Veteran’s cervical spine were not shown on x-ray until March 2001, which is more than two decades after his separation from active service; therefore, the presumptive provisions for chronic diseases under 38 C.F.R. § 3.307(a)(3) are not for application. There is also no indication a cervical spine disability was noted in service, so discussion of the related concept of continuity of symptomatology is not warranted. See Walker v. Shinseki, 708 F.3d 1331 (2013). In sum, the Board finds the preponderance of evidence is against a finding that the Veteran’s cervical spine disability is the result of a disease or injury incurred in or aggravated by active service. The only evidence that suggests the claimed disability is the result of service is the Veteran’s lay statements, which are insufficient to support a grant of service connection due to the nature of the claimed disability. The expert evidence in this case strongly supports a finding that the Veteran’s current cervical spine disability is not the result of service, but rather the result of aging. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection for a cervical spine disability must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a thoracolumbar spine disability is denied. As a preliminary matter, the Board acknowledges its analysis of the Veteran’s service connection claim for a thoracolumbar spine disability will be remarkably similar to its analysis of his service connection claim for a cervical spine disability; however, this is in no way intended to minimize the Veteran’s claim, but is rather a product of the similar nature of the claimed disabilities and the same factual predicate underlying both claims. The record establishes the Veteran has degenerative changes of the thoracolumbar spine; therefore, the current disability element of his service connection claim has been established. The Veteran claims his current thoracolumbar spine disability is the result of in-services injuries, to include a back injury sustained during a rough helicopter landing during his second period of active service. The Veteran has been unable to provide a specific date for the rough helicopter landing, but has reported it occurred at some point between 1972 and 1973. Service treatment records include notations of back pain in January 1970 and August 1974. VA has obtained several opinions regarding the Veteran’s claim. The Board acknowledges the parties to the January 2016 JMPR agreed that a February 2014 VA opinion was inadequate to make an informed decision on the Veteran’s claim because the examiner failed to properly consider service treatment records. The Board has also deemed a December 2017 VA opinion inadequate because it appears the examiner’s rationale was primarily based on the absence of contemporaneous service treatment records regarding the reported in-service injury. In light of the deficiencies in the opinions provided by VA examiners, the Board requested an expert opinion from a VHA orthopedist. See 38 C.F.R. § 20.901. In May 2018, a VHA orthopedist, D.K., D.O., provided an opinion indicating the Veteran’s current thoracolumbar spine disability is not likely the result of an in-service injury, to include the Veteran’s reports of a back injury during a rough helicopter landing during his second period of active service. D.K., D.O., fully acknowledged the Veteran’s lay reports and notations of back pain in service, but noted the minimal degenerative changes of the thoracolumbar spine shown on radiographs in February 2003 were more consistent with normal wear and tear due to aging and were not consistent with a traumatic thoracolumbar spine injury in service. D.K., D.O., explained traumatic injuries cause “significant radiographic changes in a relatively short period of time (within five years).” D.K., D.O., further explained that the level of degeneration shown on radiographs in February 2003 would be more significant if the Veteran sustained a traumatic thoracolumbar spine injury in service. The Board finds the May 2018 VHA opinion to be the most probative evidence with respect to the Veteran’s service connection claim for a thoracolumbar spine disability. D.K., D.O., considered an accurate factual history of the claimed disability and provided a well-reasoned rationale to support his opinion that goes beyond the mere absence of contemporaneous treatment records documenting an in-service injury. The Board notes there is no competent evidence that links the Veteran’s current thoracolumbar spine disability to service. Although the Veteran is competent to report observable symptomatology, he does not have the requisite skill or training to address a complex medical question such as the etiology of his current thoracolumbar spine disability, which requires x-rays to diagnose. See Jandreau, 492 F.3d at 1376-77; Woehlaert, supra; see also Waters, 601 F.3d at 1277 (noting evidence that indicates that the claimant’s disability may be associated with service must go beyond the claimant’s own statements suggesting that such a link exists). The Board finds medical expertise highly relevant in this case as the Veteran’s disability is a condition that affects large segments of the population as a result of the aging process. Simply put, the Board cannot substitute the Veteran’s lay assertions for the judgment of medical professionals with regard to etiological questions for a disability that is not capable of lay observation. See Colvin, 1 Vet. App. at 175; see also Kahana, 24 Vet. App. at 434. The Board recognizes the Veteran’s thoracolumbar spine disability is a form of arthritis, which constitutes a chronic disease within the meaning of 38 C.F.R. § 3.309(a). Yet, the degenerative changes of the Veteran’s thoracolumbar spine were not shown until February 2003, which is more than two decades after his separation from active service; therefore, the presumptive provisions for chronic diseases under 38 C.F.R. § 3.307(a)(3) are not for application. To the extent that back pain was noted in service in January 1970 and August 1974, the Board finds the May 2018 VHA opinion to be more probative as to the nexus element of the Veteran’s claim given the author’s cogent rationale that more significant degenerative changes would have been shown in February 2003 if the Veteran sustained a traumatic thoracolumbar spine injury in service. In sum, the Board finds the preponderance of evidence is against a finding that the Veteran’s thoracolumbar spine disability is the result of a disease or injury incurred in or aggravated by active service. The only evidence that suggests the claimed disability is the result of service is the Veteran’s lay statements, which are insufficient to support a grant of service connection due to the nature of the claimed disability. The expert evidence in this case strongly supports a finding that the Veteran’s current thoracolumbar spine disability is not the result of service, but rather the result of aging. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection claim for a thoracolumbar spine disability must be denied. See Gilbert, supra. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel