Citation Nr: 18159010 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 07-18 642 DATE: December 18, 2018 ORDER Entitlement to service connection for low back disorder is denied. Entitlement to service connection for neck disorder is denied. FINDINGS OF FACT 1. The Veteran’s low back disorder, including degenerative joint disease of the lumbar spine, did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an injury, event, or disease during active duty, active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). 2. The Veteran’s neck disorder, including degenerative joint disease of the cervical spine, did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an injury, event, or disease during active duty, ACDUTRA or INACDUTRA. CONCLUSIONS OF LAW 1. The criteria for service connection for low back disorder, including degenerative joint disease of the lumbar spine, are not met. 38 U.S.C. §§ 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for neck disorder, including degenerative joint disease of the cervical spine, are not met. 38 U.S.C. §§ 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1981 to December 1984. He was a member of the Army Reserve from November 1981 to December 1981, and from December 1989 to December 1995, including periods of ACDUTRA and INACDUTRA. There is also a period of unverified reserve duty from 1985 through 1989. The Board previously remanded the case in December 2010, October 2013, July 2016 and March 2018 decisions for further evidentiary development. The Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) The Veteran testified at an August 2010 Board videoconference hearing before a Veterans Law Judge and a hearing transcript is of record. In January 2018, VA sent a letter to the Veteran notifying him that the VLJ was no longer available to decide his case, and asked him whether he desired to have another hearing. To date, the Veteran has not requested such an additional hearing. Service Connection In statements of record and at the Board hearing, the Veteran has reported that he injured his neck in 1982 during physical training exercises. Moreover, he further asserted that he injured his back during active duty while stationed in Germany in 1983 again while doing physical train. The Veteran reported that he received treatment for both injuries and was put on a physical profile for the neck. He also claimed that he hurt his back again while on reserve duty approximately in October 1992 during a two-day drill and another physical training test. He has asserted that he had been having back and neck pain ever since. In statements of record, the Veteran’s wife has also reported that the Veteran injured his back and neck when he was in the Army Reserves. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. Initially, the Board notes that active military service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a), (c), (d). ACDUTRA includes full-time duty in the Armed Forces performed by National Guard members for training purposes under 32 U.S.C.A §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(3). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty or ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. However, presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) do not attach to periods of ACDUTRA and INACDUTRA unless “veteran” status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In this case, “veteran” status has not been attained during a period of ACTDURA or INACDUTRA. The Board concludes that, while the Veteran has arthritis of both the cervical and lumbar spine, which is a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree during active service or within a presumptive period, and continuity of symptomatology is not established. Despite the Veteran’s assertions, while documenting numerous other unrelated injuries, service treatment records are silent with respect to any reports of back or neck injuries, or subsequent treatment. Significantly, a February 1987 Reserve service examination, a little over two years after the Veteran’s discharge from active duty, showed that the spine was clinically evaluated as normal. Private treatment records show the Veteran first reported neck and back pain in September 1988, following a motor vehicle accident, four years after separation from active duty and three years outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of pain since service and consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis. The issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with his reports in contemporaneous treatment records, which shows that he denied experiencing back or neck symptoms, until after a motor vehicle accident in 1988. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In this regard, a February 1987 Reserve Report of Medical History, again over two years after active service, shows that the Veteran expressly denied recurrent back pain. Further, a January 1991 Reserve Report of Medical History again shows that the Veteran expressly denied recurrent back pain. The contemporaneous service examination showed that the Veteran’s spine was clinically evaluated as normal. Moreover, as the Veteran’s wife’s statements are predicated on the Veteran’s assertions, her statements concerning pertinent symptoms since service are also deemed not credible. The Board gives more probative weight to competent medical evidence, which establishes that these symptoms appear to have manifested following post-service injuries. In this regard, again, the first post-service evidence of neck and back pain was in September 1988, following a motor vehicle accident. Moreover, the evidence of record shows that the Veteran reported suffering back injuries in November 1991 following another motor vehicle accident and while employed with the United States Postal Service in April 1992. The Veteran again reported neck and low back pain following a December 1999 motor vehicle accident. Service connection for a low back disorder and neck disorder may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s low back disorder and neck disorder and an injury, event or disease incurred during active service, ACDUTRA or INACDUTRA. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Again, service treatment records for active duty, and available reserve duty medical records (including periodic review examination reports) are absent indication of symptoms, complaints, findings, and/or diagnosis of a back or neck problem. Importantly, the Board observes that there is no objective evidence showing that a back or neck disability manifested during a period of ACDUTRA or INACDUTRA. Although the Veteran and his wife asserted that he injured his back during ACDUTRA in October 1992, there is no evidence documenting such injury. Moreover, while contemporaneous private treatment records show complaint of back pain, they do not indicate that such was incurred during ACDUTRA. Moreover, clinical records many months prior to October 1992 already show complaints of back pain stemming from prior post-service injuries. The May 2012 VA examiner noted all of the post-service injuries to the neck and back and found that it was unlikely that the Veteran’s current low back and neck condition were related to active duty. However, the examiner indicated that they could not reconstruct the injuries that occurred during the Reserves. The Board remanded the case for another VA examination as the examiner did not consider the Veteran’s report of injures. Subsequently, after reviewing the record and examining the Veteran, the November 2016 VA examiner opined that the Veteran’s low back and neck disorders were not at least as likely as not related to an in-service injury, event, or disease. The rationale was the records do not show a chronic cervical spine condition secondary to military service. There was no evidence of treatment in the records for a cervical spine condition until several years post discharge. The records fail to reflect a longitudinal relationship between his cervical spine and military service. Therefore, relating the conditions to military service would be based on mere speculation, not medical evidence. With respect to the low back, the examiner observed that the Veteran filed an injury report in 1992 to the United States Postal Service for a back injury at work. Therefore, stating that the Veteran’s military service caused his lumbar spine injury would be based on mere speculation and not the attached medical evidence. The records do not show a chronic lumbar spine condition secondary to his military service. The records do not reflect a longitudinal relationship between his military service and the current date. The Board recognizes that in Jones v. Shinseki, 23 Vet. App. 382 (2010), United States Court of Appeals for Veterans Claims (Court) indicated that when a VA medical examiner was unable to provide a requested medical opinion, it was unclear whether the examiner was unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. In the instant case, the examiner indicated that it would be speculative to find that the Veteran’s back or neck disability were related to service. However, in contrast to Jones, here, the examiner did not indicate that he was unable to provide an opinion; rather he determined that based on the medical evidence of record, it would require speculation to establish causation. In other words, the evidence did not support such a finding. He also provided a detailed rationale for such finding. The Board observes that the record includes a September 2010 opinion from the Veteran’s VA doctor, which indicated that the Veteran had related to her a back injury that occurred during PT exercises while he was a reservist. As such, the examiner opined that the Veteran’s chronic back pain was more likely than not a direct result of injury that occurred in the military. However, the Board finds that this opinion has minimum probative value as it was clear that the examiner did not review the medical evidence of record as the examiner did not appear to be aware of the Veteran’s medical history and numerous documented nonservice-related injuries. As such, this opinion is outweighed by the more probative VA examinations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the Veteran and his wife believe the Veteran’s low back and neck disabilities are related to an in-service injury, event, or disease, they are not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In sum, the Board finds that the most probative evidence is against the Veteran’s claim, and service connection for a low back disorder and neck disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.N. Moats