Citation Nr: 18156998 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-06 933 DATE: December 11, 2018 ORDER The claim for entitlement to service connection for a cervical spine disability is denied. The claim for entitlement to service connection for a lumbar spine disability is denied. The claim for entitlement to service connection for a chronic headache disability is denied. REMANDED The claim for entitlement to service connection for a right knee disability is remanded. The claim for entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. A chronic disability of the cervical spine was demonstrated years after service and is not etiologically related to a disease or injury in service. 2. A chronic disability of the lumbar spine was demonstrated years after service and is not etiologically related to a disease or injury in service. 3. The Veteran does not have a chronic headache disability. CONCLUSIONS OF LAW 1. A chronic cervical spine disability was not incurred or aggravated during active duty service, nor may its incurrence or aggravation be presumed. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. A chronic lumbar spine disability was not incurred or aggravated during active duty service, nor may its incurrence or aggravation be presumed. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. A chronic headache disability was not incurred or aggravated during active duty service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to May 1974. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the Veteran requested to appear at a videoconference hearing before the Board. He was provided an informal hearing before a hearing officer at the RO in February 2017 and failed to appear for the scheduled Board video hearing in October 2018. The Board therefore finds that the claim for a video hearing before the Board is withdrawn and will proceed with a decision in this case. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term “chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(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). 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a lumbar spine disability. The Veteran contends that service connection is warranted for disabilities of the cervical and lumbar spine. In statements dated throughout the claims period, he identified three possible etiologies for these disabilities: first, that the conditions are residuals of a 1973 motor vehicle accident; second, that they were incurred due to a lumbar puncture performed during service in 1974; and third, that they are due to an in-service fall down the stairs. The question for the Board is whether the Veteran has current cervical and/or lumbar disabilities that began during service or are at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of cervical and lumbar disabilities and his reported in-service injuries occurred, the preponderance of the evidence weighs against a finding that the Veteran’s cervical and lumbar spine conditions began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Board initially finds that service records do not support the claims. Although they document some of the Veteran’s reported injuries, they do not establish the incurrence of chronic cervical or lumbar spine disabilities during service. The Veteran was involved in a motor vehicle accident in May 1973 and was hospitalized for treatment of a head contusion, abdominal pain, and right knee pain. He did not complain of neck or low back pain and received no treatment pertaining to these areas. Similarly, in April 1974, he underwent two in-patient lumbar punctures to treat headaches. The Veteran complained of cervical spasms on April 16, 1974 following the second lumbar puncture, but the spams appear to have resolved with medication and the Veteran made no follow-up complaints. The Veteran also reports that he injured his neck and back while falling down some stairs during service. These injuries are not documented in the service records, and while he is competent to report that they occurred, the service records do not support a finding of a chronic disability related to the fall. The Veteran’s neck and spine were normal at the May 1974 examination for separation and he denied experiencing problems with back pain on the accompanying report of medical history. The lack of specific treatment for neck and low back pain following the Veteran’s motor vehicle accident, the acute nature of his complaints of cervical spasms after the lumbar puncture, and the absence of any findings on the separation examination all weigh against a finding of a chronic disability during service. The post-service medical evidence also weighs against the claims. The Veteran first complained of low back pain in November 2006, more than 30 years after service, at the VA Medical Center (VAMC). He did not attribute the pain to any specific injury during service, rather, he reported that he incurred several back injuries during his post-service employment in air conditioning repair. The first complaints of cervical spine problems date from November 2011 when the Veteran reported having muscle spasms in his neck at the VAMC. From 2011 to the present, the Veteran has received regular medical treatment for several spinal conditions, including degenerative cervical and lumbar disc disease, multilevel lumbar spondylosis, and a transitional lumbar vertebra. The absence of any clinical evidence of a chronic disability for several years after service is one factor that weighs the evidence against a finding that the Veteran incurred a chronic cervical or lumbar spine disability in service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board also notes that there is no finding of cervical or lumbar spine arthritis until October 2013, almost 40 years after the Veteran’s discharge from active duty. As such, the Board cannot conclude that the Veteran manifested an arthritic condition to a compensable degree within a year after his separation from active military service. Thus, service connection for arthritis on a presumptive basis as a chronic disease is not warranted. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307(a), 3.309(a). The record also does not contain any competent medical opinions in support of the claims. None of the Veteran’s treating physicians have related his cervical and lumbar disabilities to any event of service. A VA examiner in October 2013 also provided medical opinions against the claims, finding that it was less likely as not that the Veteran’s current cervical and lumbar disabilities were due to in-service lumbar punctures. This opinion was based on review of the service records, as well as the nature of the Veteran’s current disabilities, specifically, degenerative disc disease and scoliosis. The VA examiner noted that while back pain is common following a lumbar puncture, it is usually short-lived, and prolonged post-procedure pain lasting more than a few days is extremely rare. The examiner also found that there was no medical evidence that a lumbar puncture can result in chronic neck or low back pain and there is no recognized relationship between a lumbar puncture and the development of degenerative spine and disc disease or scoliosis. Service connection is also possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a). However, the Veteran has not reported a history of continuous symptoms since service. Rather, he contends that he incurred multiple injuries to the cervical and lumbar spine during service and developed chronic disabilities after his separation from active duty. Service connection for a chronic disability based on a continuity of a symptoms is therefore not possible. The Board also finds that the Veteran is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to report observable symptoms, but finds that his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). The competent evidence of record is therefore against a nexus between the Veteran’s cervical and lumbar spine disabilities and active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claims for service connection and they are denied. 3. Entitlement to service connection for a chronic headache disability. The Veteran contends that service connection is warranted for a chronic headache disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current chronic headache disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Service treatment records show that the Veteran was treated for headaches on several occasions. The Veteran complained of headaches associated with influenza and sinusitis in January 1972. In May 1973, he was involved in a motor vehicle accident where his head struck the steering wheel. He was diagnosed with a head contusion and complained of frontal headaches during the two-day hospitalization. The Veteran was admitted again with complaints of headaches in April 1974. His treatment included two lumbar punctures; the first indicated increased protein levels, but the second lumbar puncture was normal. On April 12, 1974, his medical records noted a diagnosis of “headaches with abnormal spinal fluid, resolved.” The Veteran’s head and neurological system were normal at the May 1974 separation examination and he denied experiencing frequent or severe headaches on the accompanying report of medical history. Although service records document several instances of treatment for headaches, injuries and conditions documented during active service are not sufficient to establish the presence of a current disability. The requirement of a current disability is met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (finding that the Board must address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). In this case, the complaints of headaches during service are not sufficient to establish the present of a current disability and the post-service evidence does not establish the presence of a chronic headache disorder. Regarding the post-service evidence, medical records from the VAMC only document occasional complaints of headaches associated with various conditions. The post-service records do not establish a chronic disability manifested by headaches. In January 2006, the Veteran reported experiencing headaches above the eyes for about two to three weeks which he associated with his elevated blood pressure. The Veteran also noted that “the only time” he had headaches was when his blood pressure was high. He also reported having headaches in the context of vision problems, when he called the VAMC and requested an evaluation at the eye clinic for blurry vision and headaches. The VA medical records do not document any diagnoses or findings of a chronic headache disability, but only show complaints of headaches as manifestations of other nonservice-connected conditions. The record also contains a medical opinion weighing against the claim. After reviewing the claims file, the October 2013 VA examiner provided an addendum medical opinion report in May 2017 concluding the Veteran did not have a headache disorder. Therefore, a chronic headache disability is not demonstrated by the competent post-service medical evidence. The Board has considered the Veteran’s statements that he manifests a chronic headache disability, but the Board finds that the Veteran lacks the expertise to specifically diagnose himself with a chronic disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears (tinnitus); Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007). The Veteran is competent to describe the symptoms manifested by the claimed disability, but as the record documents complaints of headaches associated with multiple nonservice-connected conditions, the Board finds that the Veteran is not competent to determine that his symptoms are due to a separate and discreet chronic headache disorder. Therefore, the record establishes that the Veteran does not have a chronic headache disability. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the preponderance of the evidence is against the claim and it is denied. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Board finds that a remand is necessary in this case to provide the Veteran an adequate VA examination and medical opinion. The claims file contains the report of a February 2015 VA examination, but the accompanying medical opinion is inadequate as it is not based on a review of the accurate facts of the case. The February 2015 VA examiner was not able to find “any documentation of the right knee being involved” in the May 1973 in-service motor vehicle accident. However, review of the service records shows that the Veteran complained of right knee pain during his hospitalization. In addition, although the examiner concluded that the Veteran did not have a chronic disability of the knees, VAMC treatment records show diagnoses of osteoarthritis of the bilateral knees. A new VA examination and medical opinion are therefore required to determine the nature and etiology of the Veteran’s current knee disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his current bilateral knee disability. The examiner must determine the nature of any currently present right and left knee disabilities and whether they are at least as likely as not related to an in-service injury, event, or disease, including the Veteran’ May 1973 motor vehicle accident. Service treatment records document the Veteran’s involvement in a motor vehicle accident in May 1973. While hospitalized following the accident, he complained of right knee pain and was diagnosed with a right knee abrasion. The Veteran’s knees were normal upon examination for separation in May 1974 and the earliest post-service evidence of knee pain dates from the October 2013 VA examination. VAMC treatment records establish that the Veteran has received physical therapy for knee pain since 2016 and he was issued right and left knee braces for complaints related to osteoarthritis. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Riley, Counsel