Citation Nr: 20060372 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 13-21 860A DATE: September 14, 2020 ORDER Entitlement to service connection for a thoracolumbar spine disorder is denied. Entitlement to service connection for a sinus disorder is denied. FINDINGS OF FACT 1. The Veteran’s thoracolumbar spine disorder is less likely than not etiologically related to active service. 2. The Veteran’s sinus disorder is less likely than not etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a thoracolumbar spine disorder have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a sinus disorder have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 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 November 1977 to May 1983. Service Connection Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, the evidence must show competent evidence of (1) a present disability, (2) an 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). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process – or relatively close thereto – can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for a thoracolumbar spine disorder During service, the Veteran’s military occupational specialty (MOS) was power generation equipment repairer. According to his March 1983 separation examination and report, the Veteran was in good health and did not have joint or spine issues. The Veteran has undergone private and VA treatment for low back pain and degenerative disc disease. See, e.g., January 2009 VA Treatment Records; November 2003 Private Medical Records. October 2003 private medical records reflect that the Veteran was employed as a full-time brick mason when he first sought treatment for low back pain, and at that time he reported his symptoms increased when “bearing weight.” January 2009 VA treatment records also indicate that the Veteran reported low back pain since 2003, when he did “a lot of heavy lifting, bending as a brick layer.” In December 2019, a VA examiner reviewed the claims file and examined the Veteran, diagnosing him with degenerative arthritis of the spine. The examiner noted the Veteran’s claim that the disorder was related to wear and tear during service, but opined that the Veteran’s thoracolumbar spine disorder is less likely than not related to service. The examiner noted that the Veteran’s statements and lay statements indicated that back pain begun during service and/or is related to service. However, the examiner determined that there are medical reasons to reject these statements as evidence of a thoracolumbar spine disorder related to service. The examiner noted that there was no evidence of any back condition in the Veteran’s service treatment records, and documented back symptoms began 20 years after service. The examiner determined that the Veteran’s back symptoms were not related to the rigors of his military service, but were instead related to the heavy lifting and bending required of his post-service employment as a bricklayer. In an October 2012 statement, the Veteran described thoracolumbar spine symptomology that included extensive back pain that affected walking, bending, sitting, and rest. In an August 2013 statement, the Veteran indicated he initially hurt his back during service from jumping up and down on vehicles and heavy work while conducting vehicle maintenance. See also April 2017 Hearing Testimony. The Veteran has testified that he has experienced back soreness since service. Id. September 2017 and October 2017 lay statements indicates that the Veteran’s aunt and friend observed that back pain reduced the Veteran’s activity since as early as 1982. The Veteran and his acquaintances are competent to report his low back symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the current recollections of in-service onset are not consistent with the Veteran’s report of medical history upon service discharge or private and VA treatment records reflecting onset of symptomology in 2003 when he worked as a brick mason. The Veteran specifically denied having or ever having recurrent back pain at separation, and the January 2009 statement to his health provider wherein he described low back pain since 2003. The Board finds that the Veteran’s report at service separation is the most credible lay account as it was made contemporaneous in time to service and rendered to a medical examiner. See Lilly’s An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). See also Curry v. Brown, 7 Vet. App. 59 (1994) (affirming Board decision that cited from MCCORMICK ON EVIDENCE (3rd ed.1984) for the proposition that “memory hinges on recency” and that earlier statements are generally more trustworthy than later ones). The Veteran’s statement at discharge is consistent with the normal clinical evaluation of his spine at separation, and the December 2019 VA examiner’s medical conclusion that continuity of symptomatology was not medically consistent with the history of the current back disability. Thus, the Board finds the Veteran’s statements of continuity and nexus to be outweighed in probative value by the rest of the evidence of record which preponderates against the claims. In this regard, the Board assigns greater probative weight to the December 2019 VA examiner who reviewed the claims file and noted the Veteran’s in-service heavy work while conducting vehicle maintenance, but determined that the continuation of symptomology since that time is not medically consistent with the record. Rather, the December 2019 VA examiner determined the symptomology is the result of post-service work as a brick mason, beginning in 2003. As the credible lay and medical evidence reflects on onset many years after service, service connection is not warranted based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) or arthritis being manifest to a compensable degree within one year of service under 38 C.F.R. § 3.309(a). For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for a thoracolumbar spine disorder, and the claim is denied. 2. Entitlement to service connection for a sinus disorder October 1979 service treatment records reflect that the Veteran sought treatment for headaches, sinus congestion, and dizziness. However, according to his March 1983 separation examination and report, the Veteran was in good health and indicated he did not have sinusitis or hay fever. The Veteran has been diagnosed with allergic rhinitis. See, e.g., November 2003 and August 2012 Private Medical Records. However, 2012 and 2013 private medical records reflect, that upon examination, the Veteran had no drainage or sinus tenderness. See, e.g., February 2013 Private Medical Records. In February 2017, a VA examiner reviewed the Veteran’s claims file and concluded that the Veteran did not have a sinus disorder related to his active duty service. The examiner noted the in-service treatment for a sinus condition and headache related to a head cold in October 1979, and determined this incident was an isolated incident. The examiner determined that the Veteran had an acute episode without recurrent or peristent episodes. During an August 2018 VA examination, the examiner noted that the Veteran had previously been diagnosed for allergic rhinitis and acute sinusitis, but determined that imaging reflected no evidence of sinusitis. The examiner determined that the Veteran had an acute condition during service and there was no evidence of chronicity of care. The examiner determined that a “nexus has not been established.” The Board finds this opinion to be inadequate for rating services, as the correct legal standard is at least as likely as not, and the examiner did not provide an adequate opinion regarding the etiology of any allergic rhinitis or sinusitis. In December 2019, a VA examiner reviewed the claims file and opined that the Veteran did not have any sinus disorder that is etiologically related to service. The examiner noted that the October 1979 service treatment records were related to the treatment of a cold, and not related to allergic sinusitis that was diagnosed 20 years after service. Additionally, the examiner determined that the October 1979 service treatment records did reflect an acute case of sinusitis that resolved, and current imaging reflected normal sinusitis with no evidence of chronic sinusitis. Finally, the examiner addressed the Veteran’s testimony of chronic sinus symptoms, but determined that the Veteran’s reported symptoms did not form a medical basis for a diagnosis of chronic sinusitis. During his April 2017 Board hearing, the Veteran testified that he had experienced sinus issues and related headaches for the past ten or 12 years, and noted he had similar symptomology during service. He further testified that he treated his symptoms with a nose spray, and, at that time, did not have a diagnosis of sinusitis from a physician. The Veteran is competent to report experiencing sinus symptomology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the Veteran’s testimony to be credible. However, the Veteran is not shown to be competent to opine that any in-service symptoms represented signs of chronic sinusitis or to determine the etiology of any current sinus disorder. The Veteran is not competent because he is not shown to possess the requisite medical training necessary to formulate an opinion in this regard. Id. Therefore, the Veteran’s opinion linking a current sinus disorder to service has no probative value, and his report of symptoms during and after service are insufficient to establish that those symptoms represented the onset of any current sinus disorder to service or being manifest to a compensable degree within one year of service. See 38 C.F.R. §§ 3.303(b), 3.309(a). The Board assigns greater probative value to the December 2019 VA medical opinion as it was prepared by a skilled, neutral medical professional after review of the claims file. Furthermore, it is supported by a complete rationale found a less than 50 percent probability that the Veteran’s diagnosed allergic rhinitis first manifested in service and/or is due to service. Additionally, the opinion noted that service treatment records reflect a single instance of sinusitis related to a cold, and current imaging does not reflect any current or chronic sinusitis. The Veteran has not disputed the expert medical opinion or provided a favorable medical opinion to weigh in this matter. Moreover, the Veteran specifically denied having or ever having sinusitis and/or hay fever at separation which holds strong probative value as it was made during service and in the context of obtaining an appropriate diagnosis at discharge. This lay statement is also consistent with the medical examination at separation which disclosed no chronic rhinitis and/or sinus condition. This evidence holds greater probative weight than his later recollections made many years after service which is not consistent with his own prior statement or the medical evaluation at separation. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. As the evidence is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.