Citation Nr: A19001556 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190129-2311 DATE: September 26, 2019 ORDER Service connection for a lumbar spine disability is denied. Service connection for a cervical spine disability is denied. FINDING OF FACT The current lumbar spine and cervical spine disabilities were not incurred in service, are not otherwise related to service, and did not manifest within one year of service separation. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability and a cervical spine disability, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program. This decision has been written consistent with the new AMA framework. The Veteran served on active duty from October 1977 to January 1978, and from January 1980 to August 1980. On July 5, 2018, VA received the Veteran’s opt-in selection of a higher-level review of his appeal through RAMP. In a December 2018 rating decision, the higher-level reviewer denied the Veteran’s claims for service connection for a lumbar spine disability and a cervical spine disability. In January 2019, the Veteran requested Board of Veterans’ Appeals (Board) review through the evidence submission lane of the claims for service connection for a lumbar spine disability and a cervical spine disability. Historically, the Veteran’s claims for service connection for a lumbar spine disability and a cervical spine disability were denied in a final December 2015 Board decision. A claimant may request re-adjudication of a previously denied claim, if new and relevant evidence is presented or secured. AMA, Pub. L. No. 115-55, § 5108, 131 Stat. 1105, 1109. In March 2017, the Veteran filed a new claim to readjudicate the claims for service connection for a lumbar spine disability and a cervical spine disability. The December 2018 higher-level rating decision on appeal adjudicated the issues of service connection for a lumbar spine disability and a cervical spine disability on the merits, but did not adjudicate whether new and relevant evidence has been received so as to readjudicate the service connection claims. While the December 2018 rating decision noted that there were no favorable findings in that decision, it appears that the Agency of Original Jurisdiction (AOJ) made a favorable finding that that new and relevant evidence has been received, and, therefore, readjudicated the merits of the service connection claims on appeal. Accordingly, the Board will proceed with adjudicating the claims for service connection for a lumbar spine disability and a cervical spine disability on the merits. As the current appeal stems from the Veteran’s January 2019 selection of the evidence submission lane at the Board, in which he acknowledged that his appeal will be based upon all evidence submitted to VA as of 90 days after the date of that election, only evidence through April 2019 will be considered. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 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). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, including 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(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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. 1. Lumbar spine disability 2. Cervical spine disability The Veteran seeks service connection for a lumbar spine disability and a cervical spine disability. He asserts that his military duties required him to life heavy torpedoes and other equipment, which gave rise to back pain. He contends that he has continued to experience back pain since service. The Board finds that the Veteran has current disabilities of the lumbar spine and cervical spine. The record reflects that the Veteran has been diagnosed with multilevel degenerative disc disease/degenerative joint disease of the cervical and lumbosacral spine, with lumbar spine congenital canal stenosis with intervertebral disc syndrome and nerve root impingement, and cervical stenosis with disc protrusions and cord compression. See, e.g., November 2001 VA examination report; December 2009 VA examination report. However, for the reasons set forth below, the Board finds that the preponderance of the evidence is against finding that the Veteran’s lumbar spine and cervical spine disabilities were incurred in service, or are otherwise related to service. Service treatment records confirm that on one occasion in February 1980, the Veteran reported to sick call with complaints of a cold with a back ache; however, it is unclear whether “back” refers to the cervical, thoracic, or lumbar area. The Veteran specifically denied a history of trauma to his back, and the service clinician did not render a diagnosis related to the Veteran’s back complaints. The rest of the Veteran’s service treatment records show no further complaints of, treatment for, or diagnosis of a lumbar spine disability or a cervical spine disability. The March 1980 service separation examination report shows a normal clinical evaluation of the spine, and the concurrent report of medical history shows that the Veteran did not report back or neck symptoms, and specifically denied recurrent back pain. Accordingly, the preponderance of the evidence is against finding that the Veteran had a chronic lumbar spine or cervical spine disability during service. In support of his claim, the Veteran submitted a statement from R.E., who served with the Veteran, and reported that the Veteran complained on several occasions that his back hurt. This statement confirms that the Veteran complained of back pain in service, which is already demonstrated by the February 1980 service treatment record showing the same complaints; however, this statement does not demonstrate a chronic back disability in service. While not dispositive, the post-service evidence does not reflect complaints or treatment related to a lumbar spine disability or a cervical spine disability for at least 16 years after service separation. An October 1996 VA treatment record noted the Veteran’s complaints of cervical spine pain after exercising. X-ray studies of the cervical spine were negative. In November 1997, the Veteran complained of upper back pain for one year when he slept on his back that resolved with exercise. Upon examination, the Veteran had normal lumbar lordosis, no scoliosis, and no paraspinal muscle spasm or tenderness. No disability of the back or spine was diagnosed. The Veteran’s lumbar spine and cervical spine disabilities were not diagnosed until the year 2000 and 2001, respectively. See, e.g., May 2000 VA treatment record; May 2001 VA treatment record. The Board emphasizes the multi-year gap between discharge from active duty service to when the Veteran sought medical care for his lumbar spine and cervical spine problems is a factor that weighs against in-service onset of a lumbar spine disability or a cervical spine disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Significantly, a July 1994 orthopedic examination, which was conducted in conjunction with the Veteran’s application for Social Security disability benefits, noted that objective observation and testing of the cervical spine and lumbar spine yielded normal results. This evidence further weighs against in-service onset of a lumbar spine disability or a cervical spine disability. In support of his claim, the Veteran submitted a July 2009 statement from Dr. A.D., who opined that the current lumbar and cervical spine disabilities are likely related to the Veteran’s military service because “recurrent trauma” in service led to degenerative changes and herniated discs. However, as noted above, a February 1980 service treatment record shows that the Veteran specifically denied a history of trauma to his back. Moreover, the Veteran’s spine was assessed as normal at service separation, and the Veteran specifically denied back symptoms at service separation. Accordingly, the Board finds that the July 2009 opinion by Dr. A.D. is of no probative value because it is based on an inaccurate premise that the Veteran sustained recurrent trauma to the back during service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). After a review of the claims file and an examination of the Veteran, a December 2009 VA examiner concluded that he could not relate the Veteran’s cervical spine and lumbar spine disabilities without resorting to speculation because there is no evidence of any neck or back injury or condition in service. As such, VA obtained another opinion. In a March 2014 addendum VA opinion, a VA examiner opined that it is not at least as likely as not that the Veteran’s current back condition is related to service. It was reasoned that while a July 2009 private physician opined that the Veteran’s chronic back changes are due to repeated trauma in the past, such trauma was evidently absent in service. The examiner explained that when the Veteran presented to sick call in February 1980 with complaints of a cold and back ache, he specifically denied a history of trauma, and there was no mention of a back condition on his separation examination. It was further noted that until the mid-1990s, an x-ray of the cervical spine was normal, and a computed tomography (CT) scan of the lumbar spine showed mild congenital narrowing of the canal due to short pedicles and mild multilevel spondylotic changes in May 2000. The examiner concluded that this shows the presence of a congenital deformity of the spine, which is known to cause or accelerate degenerative changes and stenosis of the spine. A March 2017 VA treatment record noted an assessment of cervical spondylosis and asymmetric paraparesis, myeloradiculopathy, and lumbar spondylosis. The VA clinician wrote that “[t]he syndrome is very likely service related after review of his history dating to 1980.” To the extent that the March 2017 VA treatment record purports to provide a positive nexus opinion, such opinion is of no probative value because it is not supported by a rationale. Moreover, the VA clinician did not relate the current lumbar spine and cervical spine disabilities to a specific injury, disease, or event in service, and did not explain the “history dating to 1980” that helped him reach the opinion that the current lumbar spine and cervical spine disabilities are related to service. A significant factor in evaluating the probative value of a medical opinion is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. In this case, the March 2017 VA clinician did not provide a rationale for his purported opinion. Accordingly, the Board accords this opinion no probative value. See Miller v. West, 11 Vet. App. 345, 348 (1998) (a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). In this regard, the Board finds that, the March 2014 VA opinion is highly probative with respect to the theory of service connection for a lumbar spine disability and a cervical spine disability as directly related to service, and is adequately based on objective findings as shown by the record; accordingly, the Board concludes that the medical opinion rendered was based upon a full and accurate factual premise, including the Veteran’s history, and provided a rationale for the opinion given. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Reonal, 5 Vet. App. at 461. Therefore, the Board finds that the March 2014 VA opinion report provides competent, credible, and probative evidence which shows that the lumbar spine and cervical spine disabilities were not incurred in service, or are otherwise related to service. Accordingly, the Board finds that the March 2014 VA opinion is more probative than the July 2009 statement by Dr. A.D. and the above-referenced March 2017 VA treatment record. The Veteran has not otherwise submitted any medical evidence that his lumbar spine or cervical spine disabilities may be related to service, other than his general assertions that his current lumbar spine and cervical spine disabilities are related to an in-service injury. Although lay persons are competent to report back or neck symptoms experienced at any time, as well as provide opinions on some medical issues, the specific disabilities in this case, lumbar spine congenital canal stenosis with intervertebral disc syndrome and nerve root impingement, as well as cervical stenosis with disc protrusions and cord compression, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Specifically, the Veteran is not shown to have the required medical knowledge or training to offer an opinion as to whether his lumbar spine and cervical spine disabilities are is related to service versus other potential etiologies such as congenital defects. Thus, the Veteran’s statements purporting to link the current lumbar spine and cervical spine disabilities to service are assigned no probative value. Finally, as the Veteran’s arthritis of the lumbar spine and cervical spine has not been shown to have manifested within one year of service separation, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309(a) are not applicable in this case. For these reasons, the Board finds that a preponderance of the evidence is against a finding that the Veteran’s lumbar spine and cervical spine disabilities were incurred in service, are otherwise related to service, or manifested within one year of service separation. Accordingly, service connection for a lumbar spine disability and a cervical spine disability must be denied. As the preponderance of the evidence is against the claims, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.