Citation Nr: 1807871 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-21 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a thoracolumbar spine disability. 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1969. This appeal is before the Board of Veterans' Appeals (Board) from January 2012 and March 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. FINDING OF FACT No current thoracolumbar or cervical spine disability began during service or is related to service in any other way. CONCLUSIONS OF LAW 1. 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. §§ 3.303, 3.307, 3.309 (2017). 2. 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. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Initially, the Board notes that the RO previously denied service connection for the Veteran's cervical spine disability in a November 2011 rating decision, and that decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103; see also 38 C.F.R. § 3.156(b), (c). However, new and material evidence pertaining to this claim has been received since this rating decision; such evidence will be discussed below in addressing the merits of the Veteran's service connection claims. Thus, that portion of the Veteran's current service connection claims that had previously been denied is considered reopened, and the Board will consider the issue on the merits. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). Service connection may be granted 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(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran has made various assertions regarding his claims in statements dated in October 2012, November 2013, and January 2014, and during his May 2017 testimony before the Board. He has asserted that his doctor told him that his current neck problems began when he was a young man, and that, since the time he was 25 years old, he could not throw a softball over-handed or perform work where he had to move his arm over shoulder-height, but that he worked as a truck driver and mechanic post-service. He has asserted that his injuries date back to Vietnam where, in the infantry, he had to carry too much weight in the field and had to jump out of choppers with full gear on, which took a great toll on his neck area, and that his condition got worse after he left service. In May 2017, he testified that he had severe pain when sick in 1969, and had always been in pain; that when he was 25, he could only throw a softball 20 to 30 feet, but was discharged from service when he was 22; that he worked as a truck driver for 23 years and as a mechanic otherwise, and had back and neck pain during that time; that he first began medical treatment for such conditions from a chiropractor in the 1990s; and that he first began treatment from private and VA doctors for his conditions in approximately 2010, and before then "learned to live with it," with no treatment, including over the counter medications. Service treatment records reflect that the Veteran was treated on one occasion in June 1969 for complaints of muscle aches and pains, especially in the small of the back and groin area, along with head pain and chills; his symptoms were thought to be related to malaria. At the time of his September 1969 examination for separation from service, the Veteran had a normal clinical evaluation of his neck, spine, and other musculoskeletal system and no back or neck symptoms were noted; the Veteran specifically denied having or having ever had back trouble of any kind and reported no history of neck or back pain or problems. Post-service private treatment records beginning in August 2008 reflect treatment for low back pain, specifically thoracic spine pain, noted to have been related to T8-9 and T10-11 disc protrusions. December 2010 VA cervical spine X-rays for complaints of the Veteran's neck feeling "strained all the time" revealed hyperostosis with fusion along the anterior aspect of the spine and osteoarthritis changes. The Veteran filed a claim for service connection for his spine disabilities in October 2010. The Veteran was given a VA examination in May 2011. In May 2011 and January 2012 opinions, the examiner noted and discussed the pertinent service and post-service treatment records. The Veteran's current diagnoses were noted to be cervical spine osteoarthritis hyperostosis with fusion with right upper extremity radiculopathy, and T8-T9, T10-T11 disc protrusion with low back pain. It was noted that the Veteran reported having cervical spine pain and functional limitations since separation from service, and that he attributed his cervical spine condition to equipment which he needed to carry during military service, but that he could not identify a specific injury or trauma to the cervical spine. There was no documentation to support that Veteran's current cervical spine condition was present during military service or from the time of separation from military service to the present. Also, regarding his low back disability, there was no documentation related to events/circumstances/injury leading up to his treatment beginning in 2008. Documentation from service treatment records dated June 1969 reflected complaints of muscles aches and pains especially in the small of the back and groin area, and there was no compelling evidence to support the claim that muscle pain in small of back in 1969 resulted in T8-T9, T10-T11 disc protrusions, lower back pain, and thoracic spine pain in 2008. Given these circumstances, the examiner opened that the Veteran's current cervical spine and thoracolumbar spine disabilities were less likely than not related to service. The May 2011 VA examiner's opinions are the only competent and probative ones of record regarding whether either of the Veteran's asserted spine disabilities are related to service, and they weigh against his claims. The examiner considered and discussed the full pertinent treatment record, as well as the Veteran's assertions of continuing pain since service and reports of carrying heavy equipment in service. She concluded, after such consideration, that there was nothing to suggest that the Veteran's acute incident of pain in the small back in 1969 was related to his current T8-T9, T10-T11 disc protrusion, lower back pain, and thoracic spine pain, or that his current cervical spine problems began during or were otherwise related to service. The Board notes the Veteran's assertions of having constant pain since 1969 in his back and/or neck to the present, but finds them not to be credible. First, such assertions are contradicted by the service treatment records. These records reflect only one complaint of back pain-in the small of the Veteran's back in connection with a number of aches and pains thought to be related to malaria-with no further back pain complaints, and no complaints of neck pains whatsoever. Also, again, on September 1969 separation examination, the Veteran specifically denied having or having ever had back trouble of any kind and reported no history of neck or back pain or problems. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (in analyzing credibility, the Board is justified in taking into account multiple factors, including lack of contemporaneous medical evidence, possible bias, and inconsistencies within the record). Also, the earliest treatment for back or neck problems is dated approximately 40 years after the Veteran's service; by the Veteran's own testimony, he did not seek treatment for any spine problems until more than 20 years after service, before which he just lived with the pain. This weighs against the Veteran's credibility in this case, particularly given his reports of neck and/or back pain from service being so severe in limiting his functional capacity as to limit the types of employment he was able to have, and substantially limiting his ability to lift his arm above shoulder level. As the record has not reflected that arthritis or any other spine disability had its onset until years after service, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309(a) for chronic diseases are not applicable in this case. The Board also notes the Veteran's assertion that his doctor told him that his current neck problems were due to an injury, or began, when he was a young man. However, the Veteran has not submitted any such statement from any doctor. Nonetheless, assuming the truth of this statement at face value, all the Board has to go on is the Veteran's statement of what he said his doctor told him. The Veteran's statement does not recount any specifics has to the rationale for this purported medical statement. As such, the Veteran's statement lacks probative value relative to the VA medical opinion of record. Again, the May 2011 VA examiner's opinions is the only credible, probative, and persuasive evidence of record regarding whether either of the Veteran's asserted spine disabilities are related to service, and they weigh against his claims. Therefore, a preponderance of the evidence is against a finding that any current thoracolumbar or cervical spine disability began during service or is related to service in any other way. Accordingly, service connection for such disabilities must be denied. ORDER Service connection for a thoracolumbar spine disability is denied. Service connection for a cervical spine disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs