Citation Nr: 20021895 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 16-28 511 DATE: March 27, 2020 ORDER Service connection for a low back (lumbar spine) disability is denied. Service connection for a neck (cervical spine) disability is denied. Service connection for neurologic impairment of the bilateral lower extremities, to include lumbar radiculopathy, is denied. Service connection for neurologic impairment of the bilateral upper extremities, to include cervical radiculopathy, is denied. FINDINGS OF FACT 1. The Veteran’s low back (lumbar spine) and neck (cervical spine) disabilities did not have their onset during service, arthritis did not manifest during service or within one year after service; the current disabilities are not otherwise related to in-service injury or disease; and the neck disability was not caused or aggravated by a service-connected disability. 2. The Veteran’s neurologic impairment in the bilateral upper and lower extremities, to include cervical and lumbar radiculopathy, were not caused or aggravated by a service-connected disability; organic disease of the nervous system did not manifest during service or within one year after service; peripheral neuropathy did not manifest during service or within one year after the Veteran’s last exposure to herbicide agents in Vietnam; and the current neurologic disabilities are not otherwise related to in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back (lumbar spine) disability are not met. 38 U.S.C. §§ 1110, 1112, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a neck (cervical spine) disability are not met. 38 U.S.C. §§ 1110, 1112, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for service connection for neurologic impairment in the bilateral lower extremities, to include lumbar radiculopathy, are not met. 38 U.S.C. §§ 1110, 1112, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for service connection for neurologic impairment in the bilateral upper extremities, to include cervical radiculopathy, are not met. 38 U.S.C. §§ 1110, 1112, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from January 1966 to January 1969, including combat service in the Republic of Vietnam. This appeal proceeds from a February 2013 rating decision. The issues addressed in this decision were remanded for further development in March 2019. The issue of service connection for hypertension was also remanded at that time, but it was granted in full in a February 2020 rating decision and is no longer on appeal. There is no argument that the remand directives were not substantially completed or that further development is needed for a fair adjudication of the issues on appeal. Service Connection 1. , 2., 3., and 4. Service connection for a low back (lumbar spine) disability; service connection for a neck (cervical spine) disability; service connection for neurologic impairment in the bilateral lower extremities, to include lumbar radiculopathy; and service connection for neurologic impairment in the bilateral upper extremities, to include cervical radiculopathy The Veteran contends that his current low back or lumbar spine disability is related to injuries during service in 1966. He asserts that his impairment in the bilateral lower extremities and his neck or cervical spine disability are secondary to his low back disability, and that his impairment in the bilateral upper extremities is secondary to his neck disability. See November 2011 claim; March 2013 notice of disagreement; June 2016 substantive appeal (VA Form 9). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Generally, service connection requires three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). There are also several presumptions concerning the in-service incurrence and nexus elements for direct service connection, which will be discussed below as relevant. Secondary service connection will be granted if the evidence demonstrates that a current disability is proximately due to or the result of, or is aggravated beyond its natural progression, by service-connected disability. 38 C.F.R. § 3.310. In adjudicating such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The evidence establishes current disability diagnoses. A January 2015 VA treatment record notes a surgical history of multiple lumbar spine surgeries, with the last one in 2011, and a cervical spine fusion surgery in 2007. Private treatment records dated since 2003 include operative reports for several lumbar spine surgeries from 2007 to 2011 and a cervical spine surgery in 2006, with notations of pain and other symptoms in the bilateral legs and arms. Attending physician statements dated in July 2006 summarized the diagnoses of lumbar stenosis and radiculitis of the thoracic and lumbosacral spine, and cervical spondylosis and stenosis, herniated nucleus pulposus, “brach” neuritis/radiculitis, and cervical radiculopathy. A May 2007 MRI further noted lumbosacral neuritis and post-laminectomy syndrome. Concerning the in-service incurrence element, the Veteran reports that he injured his low back and received treatment while at Camp LeJeune (in North Carolina) during boot camp in approximately March 1966 and while at Camp Pendleton (in California) in May or June 1966. He contends that his service treatment records are incomplete because they do not contain this treatment. See November 2011 claim; March 2013 notice of disagreement; June 2016 substantive appeal (VA Form 9). The Veteran’s service personnel records confirm that he was stationed at Camp LeJeune from March 1966 to April 1966 and Camp Pendleton from May 1966 to July 1966. As directed in the March 2019 Board remand, the agency of original jurisdiction conducted additional development to attempt to obtain any outstanding service records, specifically requesting any records prior to January 1968 in September 2019. All available service treatment and personnel records were sent in October 2019. Service treatment and personnel records received in 2015 and 2019 include medical and dental records dated throughout the Veteran’s service from 1965 through 1969. In addition to treatment for various conditions from January 1968 to November 1968 as noted in the prior remand, the records include a sick call record in 1967, dental and immunization records from 1966 to 1968, an audiologic (hearing) screening evaluation in January 1966, and notations or reports of general evaluations in 1965, 1966, and 1969. It appears that all medical records from the Veteran’s service have been obtained, as well his personnel records. There is no documentation of treatment for a low back injury or other relevant injury or symptoms between March 1966 and July 1966 or otherwise during service. Despite the lack of documentation, the Veteran is competent to report suffering an injury and having low back or other symptoms at that time, although he has not described the nature or circumstances of the injury or symptoms. He may have had such an injury or symptoms. Nevertheless, the Veteran’s subsequent service evaluation for discharge in January 1969 showed no clinical abnormality of the spine and did not reference any back or other relevant symptoms. This points to there being no ongoing low back symptoms or disability after any injury in 1966. Significantly, post-service treatment records reflect that the Veteran identified the date of onset of his ongoing or chronic low back and lower extremity symptoms as being many years after service, and he did not mention any prior injury or symptoms related to service. Specifically, a May 2007 MRI report for the lumbar spine noted that the Veteran had low back pain for “1 [space] 5” years, which could represent either 1.5 years (since approximately 2006) or 15 years (since approximately 1992). An October 2007 treatment record noted complaints of chronic low back pain and pain down the left leg to the foot that began in January 2006. This would be consistent with a notion of low back pain for 1.5 years in the May 2007 MRI report. However, even if the May 2007 report was of symptoms for 15 years, this was still many years after the Veteran’s 1969 service discharge. Although the Veteran has primarily asserted that his neck and upper extremity symptoms are secondary to his low back disability, the evidence further reflects that these symptoms began many years after service. Records of physical therapy in 2003 and 2005 noted neck pain and radiating pain to the upper extremities. A February 6, 2006, record noted that the Veteran complained of neck pain radiating down into his arm that had been present for about 5 years (or since approximately 2001), and which had done pretty well after physical therapy until the last month or so. A discharge summary for February 9 to 12, 2006, then noted that the Veteran complained of upper back pain radiating to the shoulders and down the right arm. He stated that he first had neck difficulties 7 to 8 years ago (in 1998 or 1999) and a flare-up approximately 18 to 20 months ago (in 2004 or 2005), and that both times the symptoms went away with treatment. After studies including an MRI, myelogram, and CT scan of the cervical spine, surgery was recommended and performed on February 9, 2006. A post-surgical record also in February 2006 noted new onset right arm numbness and hand weakness since the surgery. An August 2011 private record noted a surgical history of a cervical fusion in the 1990s, but this appears to be a typographical error, as the other records reflect that he had physical therapy for his symptoms in the 1990s and his first cervical spine surgery was in 2006. All available identified private treatment records were obtained. The Veteran is competent to report the nature and timing of his observable symptoms. However, he has not asserted that his ongoing symptoms began during service, only that he had injuries in 1966 that he believes resulted in his current disabilities. To the extent that his claim may be construed as an assertion of continuous symptoms since service, those reports are not credible due to inconsistency with the other available evidence, as summarized above. The records during service and for treatment after service are more probative than the Veteran’s more recent statements because they were contemporaneous in time to the events and symptoms when his recollection was fresh. His reports for post-service treatment were also made under circumstances when he had an incentive to give an accurate history as to the nature and timing of his symptoms in order to receive proper medical care. These reports were all several years prior to his 2011 claim. For the foregoing reasons, even assuming that the Veteran had low back injuries or symptoms as he has reported in March 1966 and May or June 1966, the available evidence establishes that he did not have ongoing low back, neck, or upper or lower extremity symptoms or disability during service or until many years later. Although not expressly raised by the Veteran, the evidence raises consideration of the combat presumption because the evidence establishes that he engaged in combat with the enemy. See 38 C.F.R. § 3.304(d). Service personnel records show that he participated in several combat expeditions in Vietnam from 1966 to 1977. As noted in a May 2016 rating decision, he was also awarded the Presidential Unit Citation, which is given for extraordinary heroism in action against armed forces. Under the combat presumption, where the evidence shows that a veteran engaged in combat with the enemy, his or her lay reports will be sufficient to establish the occurrence of an event or injury during combat as long as such reports are consistent with the circumstances, conditions, or hardships of such service. This is true even if there is no official record of the reported incident, unless there is clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). This presumption also extends to a combat veteran’s reports of experiencing a permanent disability beginning at the time of injury during combat. Reeves v Shinseki, 682 F.3d 988, 998-1000 (Fed. Cir. 2012). However, “[e]ven when the statutory combat presumption applies, a veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.” Id. at 999 n. 9. As such, the evidence must show that the “disability he incurred in service was a chronic condition that persisted in the years following his active duty.” Id. at 1000. In this case, the Veteran does not assert that his injury, symptoms, or a permanent disability began during his combat service. Instead, he has reported that his injuries occurred between March and June 1966 while at locations in the U.S., before his service in Vietnam. Moreover, the evidence in his post-service records directly contradicts him having ongoing symptoms or a disability during service, to include after his Vietnam service, as he identified the onset of his symptoms and conditions as being many years after service. Therefore, the combat presumption does not establish the incurrence of symptoms or disability in the low back, neck, or bilateral upper or lower extremities during service. Reeves, 682 F.3d at 998-1000. Concerning the nexus element, the Veteran is not competent to provide an opinion as to the cause of his claimed disabilities. This is a medically complex question that requires knowledge of the interactions between the musculoskeletal and neurologic systems in the body, as well as interpretation of the Veteran’s medical history and any required testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no medical evidence indicating that a current low back disability may be related to service, to include the reported in-service injuries in 1966. Although the medical evidence shows that the Veteran’s neurologic conditions in the upper and lower extremities are secondary to his cervical spine and lumbar spine disabilities, respectively, there is no medical evidence suggesting that his neck or upper extremity neurologic disabilities were caused or aggravated by his low back disability. The Veteran’s broad conclusory statements as to the cause of his current disabilities are insufficient to trigger the need for a VA examination or medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1276-77 (Fed. Cir. 2010). In addition to the Veteran’s assertions of a relationship to an injury during service or as secondary to the low back disability, other theories are raised by the evidence. The Veteran’s current diagnoses include arthritis or degenerative joint disease of the lumbar spine and cervical spine, neurologic impairment or radiculopathy of the upper extremities associated with his cervical spine disability, and neurologic impairment or radiculopathy of the lower extremities associated with his lumbar spine disability. Arthritis and organic disease of the nervous system are considered chronic diseases that will be presumed related to service if they were noted or diagnosed as chronic in service; or if they manifested to a compensable degree within one year after active duty discharge; or if chronicity or 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)(3). However, the evidence reflects that the Veteran’s lumbar spine, cervical spine, and upper and lower extremity neurologic symptoms did not manifest in, and were not diagnosed until many years after, service. Therefore, the chronic disease presumption does not apply to establish service connection. Additionally, peripheral neuropathy will be presumed related to exposure to herbicide agents, including Agent Orange, during active service if the condition manifested to a degree of 10 percent or more within one year after the last exposure to herbicide agents. 38 C.F.R. § 3.307(a)(6)(ii); 38 C.F.R. § 3.309(e). The Veteran is presumed to have been exposed to herbicide agents during his service in Vietnam. 38 C.F.R. § 3.307(a)(6). However, as discussed above, the Veteran’s neurologic symptoms in the upper and lower extremities did not manifest until many years after his Vietnam service. His personnel records show combat expeditions in Vietnam from August 1966 through August 1967. Although his DD Form 214 noted one year and four months of foreign or sea service, his embarkation records also noted other locations, including the Philippines and Japan. Moreover, the Veteran’s current diagnoses do not include peripheral neuropathy, but rather, lumbar or cervical radiculopathy, radiculitis, and/or neuritis. Furthermore, a December 2014 memorandum including review by a medical professional noted that there was no evidence of peripheral neuropathy during the Veteran’s Vietnam service or within one year after his last date of Agent Orange exposure in 1967. Therefore, this presumption also does not apply. In summary, the preponderance of the evidence is against finding that a current low back disability, neck disability, bilateral lower extremity neurologic impairment, or bilateral upper extremity neurologic impairment began during service or is otherwise related to service, or is secondary to a service-connected disability. There is no reasonable doubt to resolve, and the appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.