Citation Nr: 20060663 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 16-43 254 DATE: September 15, 2020 ORDER Entitlement to service connection for low back condition is denied. Entitlement to service connection for a cervical spine (“neck”) condition is denied. Entitlement to service connection for a bladder condition is denied. FINDINGS OF FACT 1. The probative evidence of record shows that the Veteran does not have a low back condition that is etiologically related to his military service. 2. The probative evidence of record shows that the Veteran does not have a neck condition that is etiologically related to his military service. 3. The probative evidence of record shows that the Veteran does not have a bladder condition that is etiologically related to his military service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2019). 2. The criteria for establishing entitlement to service connection for a neck condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2019). 3. The criteria for establishing entitlement to service connection for a bladder condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1958 to July 1962. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which, in pertinent part, denied entitlement to service connection for a low back condition, a cervical spine condition, and neurogenic bladder. The Veteran timely perfected an appeal. See August 2012 Notice of Disagreement; August 2016 Statement of the Case; August 2016 VA Form 9. In February 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge, a transcript of which is of record. In April 2018 and December 2019, the Board remanded this matter for additional development. Service Connection The Veteran contends that his lumbar spine and cervical spine conditions are related to military service, to include due to lifting heavy equipment, the performance of other physical duties as a part of his MOS, and a fall he sustained on the deck plane while on active duty. He also contends that his bladder condition is secondary to his lumbar spine condition. A. Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § § 1113 (b); 38 C.F.R. § § 3.303 (d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, to include arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. § § 1101, 1112; 38 C.F.R. § §§ 3.307, 3.309(a). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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 appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which the claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. B. Factual Background Service treatment records revealed no complaints of or treatment for back, neck, or bladder conditions. During the Veteran’s July 1962 separation examination, his spine and genitourinary system were evaluated as clinically normal. In July 1962, the Veteran submitted a claim of entitlement to service connection for a pilonidal cyst. A November 2001 private treatment record shows that the Veteran sought to establish primary care. He reported a past medical history of BPH, hypertension, CAD, asthma, osteoarthritis of the hands and neck, right wrist surgery, CABG, toenail removal, and a right hip fracture. He reported current symptoms of bilateral hand pain. A March 2002 private treatment record shows that the Veteran reported hand pain. An October 2002 private treatment record shows that the Veteran reported right shoulder pain. A November 2002 private treatment record shows that the Veteran reported right shoulder pain. He denied other complaints. A January 2003 private treatment record shows that the Veteran reported “low back pain for several years.” A June 2003 private treatment record shows that the Veteran reported low back pain for 10 to 15 years. He also reported neck pain. An August 2003 private treatment record shows that the Veteran reported urinary frequency and urgency. He was diagnosed with BPH. During the February 2018 Board hearing, the Veteran reported that he injured his low back and neck in service due to lifting heavy equipment and falling. He testified that he probably did not go to sick bay for his symptoms. He also testified that he started receiving treatment for his low back condition immediately after service but that VA lost his records. The Veteran’s wife testified that the Veteran had “always been active,” but was now having difficulty due to his neck and low back problems. The Veteran was afforded a VA back conditions examination in January 2020. He reported low back pain “most of his life.” The examiner noted diagnoses of degenerative arthritis and dextroscoliosis. The examiner opined that the Veteran’s current low back condition was less likely as not related to service. The examiner noted that the Veteran’s service treatment records were negative for any back problems and that the Veteran’s back condition was first documented in 2003, over 40 years after service. The examiner acknowledged the Veteran’s reports that he performed physically demanding duties as a boiler technician and that he fell multiple times during service. However, the examiner indicated that degenerative arthritis was caused by aging and normal wear and tear and that while the cause of dextroscoliosis was unknown, there was no medical literature indicating that it could be due to in-service injuries such as the injuries described by the Veteran. The examiner concluded that the Veteran has a diagnosis of a lumbar spine condition that less likely than not had its onset in service or was related to any in-service disease, event, or injury, to include the Veteran’s reports of lifting heavy equipment, the performance of other duties as part of his MOS, or a fall that he sustained while on active duty. The Veteran was afforded a VA neck conditions examination in January 2020. He reported neck issues since he was in his 20s. The examiner noted a diagnosis of degenerative arthritis of the spine. The examiner opined that the Veteran’s current neck condition was less likely as not related to service. The examiner noted that the Veteran’s service treatment records were negative for any neck problems and that the Veteran’s neck condition was first documented in 2003, over 40 years after service. The examiner acknowledged the Veteran’s reports that he performed physically demanding duties as a boiler technician and that he fell multiple times during service. However, the examiner indicated that degenerative arthritis was caused by aging and normal wear and tear and that there was no medical literature indicating that it could be due to in-service injuries such as the injuries described by the Veteran. The examiner concluded that the Veteran has a diagnosis of a neck condition that less likely than not had its onset in service or was related to any in-service disease, event, or injury, to include the Veteran’s reports of lifting heavy equipment, the performance of other duties as part of his MOS, or a fall that he sustained while on active duty. C. Analysis-Low Back and Neck Conditions As an initial matter, the record shows that the Veteran has been diagnosed with degenerative arthritis of the lumbar and cervical spine and dextroscoliosis. As such, the Board finds the current disability element is established. Shedden v. Principi, 381 F.3d 1163, 1167. Next, the evidence of record supports a finding that the Veteran sustained in-service injuries to his back and neck. Although service treatment records do not reflect treatment for back or neck injuries, the Veteran is competent to report his experiences during service, to include lifting heavy equipment and other strenuous duties, as well as falling. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, the Board finds these reports to be credible and consistent with the Veteran’s service as a boiler technician. See 38 U.S.C. § 1154 (a). Thus, there is evidence of an event or injury in service. Accordingly, the issue turns upon whether there is evidence of a nexus between the in-service injuries and the present disability. Upon review of the foregoing evidence, the Board concludes that the evidence of record is against a finding that the Veteran’s currently diagnosed back and neck conditions are related to his military service or are of service origin. The Board finds the VA opinions of record to be highly persuasive to the issue of whether the Veteran’s current neck and back conditions are related to service. The Board places great probative weight on the VA opinions in this case, as they are consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran’s specific disability picture. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Specifically, the January 2020 VA examiner opined that the Veteran’s current low back and neck conditions were more likely than not due to normal aging and wear and tear than to any in-service injuries. Although the examiner emphasized the length of time before the Veteran sought treatment after service, this does not render the opinions inadequate. A VA examiner must consider the Veteran’s lay statements regarding the incurrence of a disorder and the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). However, in the present case, as discussed in detail below, the Board finds that the Veteran’s lay statements regarding onset and continuity to be less than credible. Implicit in the examiners’ rationale was that if the Veteran’s low back or neck symptoms had been significant, he would have sought treatment in service or post-service treatment earlier. Moreover, “there is no reasons or bases requirement imposed on examiners.” Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). Rather, an adequate medical report must rest on correct facts and reasoned medical judgment so as to inform the Board on a medical question and facilitate the Board’s consideration and weighing of the report against any contrary reports. See Nieves-Rodriguez, 22 Vet. App. at 304 (2008) (holding, in the context of weighing one medical opinion with another, that “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion... that contributes probative value to a medical opinion”). Overall, the opinions of record are supported by an explanation, based on a review of the claims folder and examination of the Veteran, and supported by the Veteran’s medical records. There are no contrary medical opinions of record. The Board acknowledges the Veteran’s assertions that his current low back and neck conditions are related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of a musculoskeletal condition falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether his diagnosed low back or neck condition is related to his military service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran’s assertions that his current low back and neck conditions are related to his in-service complaints. The Board also acknowledges the Veteran’s assertions that he has suffered from low back and neck symptoms since service. The Veteran is certainly competent to report symptoms such as pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the present case, the Board finds that the Veteran’s statements regarding onset and continuity of his current low back and neck symptoms, while competent, are not fully credible. In this regard, the Veteran’s contentions that he has suffered from continuous low back and neck symptoms since service are inconsistent with other evidence of record. See Gardin v. Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). As detailed above, the Veteran’s spine was clinically normal during at separation, and the first medical evidence of any low back or neck symptoms after active service was in 2001, almost 40 years after the Veteran’s discharge. The absence of post-service findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous knee symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). The Board also finds it probative that the Veteran did not report any relevant symptoms during private primary care from 2001 to 2003, and when the Veteran reported a low back and neck pain in 2003, he did not discuss a service origin. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”). Moreover, the Veteran has made inconsistent and contradictory statements regarding the onset of his low back and neck symptoms. Specifically, in recent statements (i.e. contemporaneous with his current service connection claim), the Veteran reported experiencing neck and back symptoms continuously since service. However, when the Veteran reported a past medical history of neck pain during a November 2001 private new patient visit, he did not discuss a service origin, and when he reported low back and neck pain in 2003, he reported a 10 to 15-year history. The Board also finds it significant that the Veteran’s first application for compensation, filed in July 1962 (pilonidal cyst), did not include or mention a low back or neck condition, which tends to undermine the veracity of the Veteran’s more recent statements that he has experienced neck and back symptoms continually since service. See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (upholding Board’s denial of service connection and finding that a veteran’s recent post-service account of in-service events was not credible because the Veteran had previously given other histories and theories that did not mention the alleged in-service event, and first “came up with the story” years after service and in connection with the compensation claim). It is important to point out that the Board does not find that the Veteran’s lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.”). Rather, the current lay statements are found to lack credibility because they are inconsistent with and directly contradicted by other lay and medical evidence of record, including the Veteran’s own statements, showing that the Veteran did not experience chronic neck or low back symptoms until many years after service. See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board’s finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). With regard to presumptive service connection, the Board finds that the Veteran’s degenerative joint disease of the lumbar and cervical spine is properly afforded such consideration, as arthritis is one of the enumerated conditions in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1331. However, there is no probative evidence of record that the Veteran’s low back or neck arthritis manifested to a compensable degree within one year of the Veteran’s discharge from service in 1962. See 38 C.F.R. § 3.307(a), 3.309(a). Instead, the probative evidence of record shows that the Veteran was not diagnosed with arthritis until 2003, over 40 years after service. Moreover, as noted above, the Board finds that the Veteran has not provided credible testimony that symptoms of arthritis have continued since service discharge. See Buchanan, 451 F.3d at 1336-37; Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). As such, presumptive service connection as a chronic disease, to include based on continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. While the Board is sympathetic to the Veteran’s claims, taking into account all of the relevant evidence of record, the preponderance of the evidence is against a finding of an etiological relationship between the Veteran’s current low back and neck conditions and his military service. Accordingly, the Board finds that the claim of entitlement to service connection for low back and neck conditions must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). D. Analysis-Bladder Condition Given the evidence of record, the Board finds that service connection for a bladder condition is not warranted on either a direct or secondary basis. Regarding direct service connection, the Board notes that the Veteran has been diagnosed with urinary incontinence. See March 2020 VA Treatment Record. As such, the Board finds the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). However, the Veteran has not alleged, and there is no other evidence to suggest, that a bladder condition first manifested during service or for many years thereafter. As noted above, the Veteran’s service treatment records contain no complaints or treatment related to a bladder condition. Following service separation, the evidence of record shows no complaints, diagnosis, or treatment for a bladder condition until 2003, almost 40 years after the Veteran’s discharge. The Veteran has never contended that any aspect of service was applicable in his case and none of his attending clinicians noted reports by the Veteran of any symptoms or events in service relevant to a bladder condition. Based on the foregoing, the Board finds that service connection on a direct basis for a bladder condition, to include urinary incontinence, is not warranted. The Veteran’s main contention with respect to his urinary incontinence is that it was caused or aggravated by his low back condition. See November 2011 VA Form 21-526; February 2018 Hearing Transcript. However, as discussed in detail above, the Board finds that service connection for a low back condition is not warranted. Accordingly, service connection for a bladder condition as secondary to a low back condition is also denied. Therefore, based on the foregoing, the Board finds that service connection for a bladder condition is not warranted on a direct or secondary basis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a bladder condition. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kipper, 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.