Citation Nr: 20052908 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-58 622 DATE: August 10, 2020 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a cervical spine disability is denied. FINDINGS OF FACT 1. The Veteran’s current lumbar spine disability is not related to an in-service event, injury, or disease. 2. The Veteran’s current cervical spine disability is not related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 15, 1973 to November 9, 1973. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The Board acknowledges that the December 2014 rating decision characterized the issues of entitlement to service connection for a lumbar spine disability and cervical spine disability as new and material evidence claims. The Board observes, however, as the May 2013 rating decision that originally denied the claims states the contentions were decided provisionally and the following December 2014 rating decision noted that the previous provisional decision is now finalized, the Board finds the May 2013 rating decision was not final as to those issues. Indeed, the Board observes that in the May 2013 notification, the RO informed the Veteran if he wanted to receive a final decision with appeal rights before the one-year provisional period ends, to send in a signed statement. There is no indication that the Veteran submitted any statement. As such, the Board has recharacterized these issues as noted on the title page. Service Connection Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). This means that the facts establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Veterans are presumed to have been in sound condition upon entry into service, except as to conditions noted on their entrance examination. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. If a pre-existing disability increases during service, it is considered to have been aggravated by service, absent a specific finding that the increase was due to the natural progress of the disability. 38 U.S.C. § 1153. Aggravation of a pre-existing disability may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. See 38 C.F.R. § 3.306(b). In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a pre-existing disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the pre-existing condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). 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 veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a lumbar spine disability The Veteran asserts that his current lumbar spine disability is due to his military service. The Board notes that the Veteran, at his service enlistment examination in January 1973, reported a pre-service back injury and that he experiences recurrent back pain. There is no indication that there was any lumbar spine disability. Accordingly, the Veteran is presumed sound at service entrance. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). There is otherwise no indication of a preexisting condition by the time of service entrance that would be sufficient to rebut the presumption of soundness. See Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). The service treatment records (STRs) document the Veteran was seen in June 1973 for an upper respiratory infection. Symptoms reported during the visit included sore throat and back pains. No other complaints noted in the STRs, to include discharge examination report for a back disability. Post-service treatment records include a September 2001 VA treatment record that documents the Veteran suffered a back injury at work and that he has been in receipt of Workers’ Compensation benefits since October 2000. During the March 2012 VA examination, the Veteran reported that he injured his back while he was on the ship continuously picked up molds and placing them into machines. The examiner diagnosed back strain. The examiner opined that it is less likely than not that the Veteran’s lumbar spine disability is due to his military service. He indicated that the Veteran was in service for only 4 months and 25 days, when he tried to injure himself to get out. The Veteran reported he fell down 2-3 stairs on board a ship. The Veteran reports after the military he worked in an auto body shop, then was with the railroad for 5 years. The examiner noted that the Veteran had a work-related back injury in October 2000 that he stated kept him out of work “for almost a year.” Although the Veteran has a diagnosis of lumbar spine strain, the preponderance of the evidence is against finding that such began during active service, or is otherwise related to an in-service injury, event, or disease. Indeed, the probative evidence shows the disability did not manifest in service and was not shown until several decades following service. Although the Veteran is competent to describe his history of lumbar pain and injury during service, the cause of any musculoskeletal change involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and effect relationship, he is not competent to render such a complex medical opinion regarding etiology of a degenerative disorder. As such, the question of etiology in this case may not be competently addressed by lay evidence. Therefore, the most probative evidence of record is the March 2012 VA opinion, which concludes that the Veteran’s current lumbar spine disability is not etiologically related to service. With no probative evidence to the contrary, service connection for lumbar spine disability is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a cervical spine disability The Veteran asserts that his current cervical spine (neck) disability is due to his military service. He that he injured his neck with repetitive picking up of molds and having to set them into machines. The STRs, to include separation examination report, show no complaints of or treatment for a neck disability. Post-service treatment records document degenerative arthritis of the cervical spine beginning in 2011. See March 2012 VA examination report. During the March 2012 VA examination, the Veteran reported neck pain since the early 1980s. He gave a history of working in an auto body shop after the military and worked for the railroad from 1975 to 1980. The VA examiner indicated that the Veteran reports history of a motor vehicle accident when his car was totaled. The Veteran stated that he worked for the railroad for 5 years as a car mechanic under and over cars, and at an auto body shop. The examiner indicated that the Veteran’s neck disability was less likely due to his military service. He indicated that there were no reports in review of the STRs of a current neck disability and there were no neck complaints until several years post-service. Although the Veteran has a diagnosis of degenerative arthritis to the cervical spine, the preponderance of the evidence is against finding that such began during active service, or is otherwise related to an in-service injury, event, or disease. Indeed, the probative evidence shows the disability did not manifest in service and was not shown until several decades following service. Although the Veteran is competent to describe his history of worsening pain with regards to neck disability, the cause of any musculoskeletal change involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and effect relationship, he is not competent to render such a complex medical opinion regarding etiology of a degenerative disorder. As such, the question of etiology in this case may not be competently addressed by lay evidence. Therefore, the most probative evidence of record is the March 2012 VA opinion, which concludes that the Veteran’s current neck disability is not etiologically related to service. With no probative evidence to the contrary, the Board finds that service connection for cervical spine disability is not warranted. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.