Citation Nr: 18158687 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-52 822 DATE:December 18, 2018 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a back disability is denied. FINDINGS OF FACT 1. A cervical spine disability, including arthritis, was not present during active duty or manifest to a compensable degree within one year of separation and the most probative evidence of record indicates that the Veteran’s current cervical spine disability is not causally related to an in-service disease or injury. 2. A back disability, including arthritis, was not present during active duty or manifest to a compensable degree within one year of separation and the most probative evidence of record indicates that the Veteran’s current back disability is not causally related to an in-service disease or injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1968. This matter comes to the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a cervical spine disability (claimed as degenerative arthritis, cervical spine) and a lumbosacral spine disability (claimed as a lumbosacral sprain). Applicable Law Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that such a disease manifested to a compensable degree within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran claims that his current neck and back disabilities resulted from jumping out of airplanes and helicopters during his time in service. His DD Form 214 reflects that his military occupational specialty (MOS) was parachute rigger, a position consistent with his assertions that his in-service activities included jumping out of aircraft. The Veteran’s service treatment records, however, are negative for complaints or abnormalities pertaining to the neck or back. At the Veteran’s December 1967 service separation medical examination, his neck and spine were examined and determined to be normal. Moreover, on a report of medical history completed at the time of his separation examination, the Veteran denied having or ever having had symptoms such as recurrent back pain or arthritis. He did endorse a history of cramps in his legs and the examiner noted that this referred to “joint pain.” (The Board observes that service treatment records reflect multiple complaints of knee pain). In pertinent part, the post-service record on appeal shows that in March 1981, the Veteran submitted an original application for VA compensation benefits, seeking service connection for a right knee disability. His application is silent for any mention of neck or back disabilities, as is clinical evidence assembled in connection with that application. In a May 1981 rating decision, the RO granted service connection for a right knee disability and assigned an initial noncompensable rating. In December 2012, the Veteran submitted a claim of service connection for neck and back disabilities. He indicated that he had been involved in a motor vehicle accident in November 2012 in which a truck collided with the vehicle in which he was riding. He indicated that he went to physical therapy later that day and was advised that he had cervical thoracic sprain/strain and that such condition had not been caused by the motor vehicle accident. Rather, he indicated that the clinician advised him that it was due to jumping out of airplanes in service. In support of his claim, the RO sought to obtain clinical records from the private clinician identified by the Veteran. In a September 2013 note, the clinician, a chiropractor, indicated that the Veteran had degenerative joint disease of the cervical spine which was “advanced for his age” and “definitely associated with a past history of involvement with the Veterans. His service in the United States Military would have left him with a high degree of degenerative joint disease in the cervical spine.” The records provided by the chiropractor did not include radiographic testing. In May 2014, the Veteran underwent a VA medical examination in connection with his claim. The examiner, a VA physician, reviewed the Veteran’s claims folder and noted that the Veteran had served as a paratrooper during active duty. He noted that following his separation from service, the Veteran had worked in occupations which included truck driver, an examiner for the Department of Motor Vehicles, and as a instructor for a truck driving school. He noted that the Veteran complained of neck and back pain which had developed approximately 7 to 8 years prior and contended that his neck and back disabilities were the result of activities as a parachute rigger while on active duty. The Veteran had received no treatment other than chiropractic treatment. In connection with the examination, radiographic studies were performed and showed mild to moderate degenerative joint disease in the cervical spine and mild degenerative joint disease in the lumbar spine, which were consistent with age-related changes. The examiner cited medical studies noting that by the age of 60, more than 90 percent of people will exhibit evidence of disc degeneration in the spine. He noted that the Veteran was 67 years old. After examining the Veteran and reviewing the record, the examiner concluded that it was less likely than not that the Veteran’s current neck and back disabilities were incurred in service or causally related to the claimed in-service injury, event or illness. The examiner explained that the Veteran’s service treatment records showed that neck and back disabilities were not present during service or upon separation, he had had several jobs post-service that required physical work and he was still working to date, he had had a significant weight gain since service or more than 40 pounds, and current radiographical and physical findings were consistent with his age and age-related changes. Analysis Applying the facts in this case to the legal criteria set forth above, the Board concludes that the preponderance of the evidence is against the claim. As set forth above, the record is clear that the Veteran served as a parachute rigger during his period of active duty, a position consistent with rigorous activities such as jumping out of airplanes. That an injury or other trauma occurred during active service is not enough to establish service connection. Rather, there must be chronic disability resulting from the in-service injury. In this case, the Veteran’s service treatment records are negative for complaints or abnormalities pertaining to the neck or back, to include arthritis. At the Veteran’s December 1967 separation examination, his neck and back were examined and determined to be normal and the Veteran denied having or ever having had recurrent back pain, suggesting that the Veteran’s activities as a parachute rigger did not result in chronic disability during active duty. Under these circumstances, the Board concludes that a chronic disability of the neck or back. Moreover, the record contains no indication, nor has the Veteran contended, that arthritis of the neck or back was manifest to a compensable degree within one year of separation. Rather, he has dated the onset of his symptoms to many years after service separation, approximately 7 to 8 years prior to the Marc 2014 VA examination. Although a chronic disease was not present in service or within the first post-service year, service connection may nonetheless be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). In this case, as reflected above, the record contains conflicting medical opinions. The U.S. Court of Appeals for Veterans Claims (Court) has held that the rules on expert witness testimony delineated in the Federal Rules of Evidence provide important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The first factor to be considered in determining the probative value of a medical opinion is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second factor involves consideration of whether the medical expert provided a fully articulated opinion. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of a medical opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). After considering the conflicting medical opinions in light of the factors set forth above, the Board finds that the opinion of the VA examiner outweighs the opinion of the private chiropractor. Significantly, the findings of the VA examiner, a physician, were thoroughly explained and based on a complete review of the record, including the service treatment records, the statements of the Veteran, and radiographic studies. Moreover, the examiner explained the reasons for his conclusion based on an accurate characterization of the evidence of record. The Board therefore places significant weight on the findings of the June 2014 VA examiner. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support his opinion ). On the other hand, the chiropractor did not provide rationale, nor did he have the benefit of a review of the record, to include the service treatment records which were negative for complaints or findings of a neck or back disability or symptoms. In addition, although the chiropractor noted that the Veteran had cervical degenerative joint disease which was advanced for his age, but he did not give a rationale for this diagnosis. Indeed, it does not appear that radiographic studies were performed by the chiropractor. The VA physician reviewed the Veteran’s radiographic studies and further explained his conclusion that the Veteran’s degenerative changes were age related, to include citing to medical studies. Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the Veteran’s current neck and back disabilities and his active duty service outweighs the medical evidence suggestive of nexus. The Board has carefully considered the contentions of the Veteran that he suffers from neck and back disabilities which were incurred during service. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran’s assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Questions of competency notwithstanding, the Veteran’s lay theory regarding the etiology of his disabilities are contradicted by the conclusion of the VA physician who specifically considered the Veteran’s lay statements in rendering his negative opinion. The Board finds the specific, reasoned opinion of the trained health care provider who conducted the VA opinion to be of greater probative weight than the more general lay assertions of the Veteran. The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Crucially, however, the Veteran has not alleged continuous post-service symptomatology of the currently diagnosed neck and back disabilities.   Considering the overall evidence, including the post-service medical evidence, the VA medical opinion, the opinion from the Veteran’s chiropractor, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the Veteran’s claims. Thus, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cellini, Associate Counsel