Citation Nr: 21000309 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 09-10 157 DATE: January 5, 2021 ORDER Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease (DDD), is denied. Entitlement to service connection for cervical spine condition, to include DDD, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that DDD of the lumbar spine began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a cervical spine condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for cervical spine condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from March 1972 to September 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. This appeal was last before the Board in March 2020 where it was remanded for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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). Moreover, where a veteran served continuously for 90 days or more during active service, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for DDD of the lumbar spine The Veteran contends that his current DDD of the lumbar spine is the result of posttraumatic arthritis from an in-service back injury. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of DDD of the lumbar spine, and evidence shows that he was seen in July 1973 for pain in the lumbar region of back after lifting an object, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of DDD of the lumbar spine began during service or is otherwise related to an in-service injury, event, or disease. Treatment records show the Veteran was not diagnosed with DDD of the lumbar spine until 2006, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of pain intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of DDD. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the October 2017 VA examiner noted that the first available post-service documentation of a chronic lumbar spine complaint was dated in 2002, in the setting of a motor vehicle accident and back pain. X-rays at that time were normal. The examiner stated that the normal x-rays indicate that lumbar degenerative disc disease and degenerative joint disease developed after 2002 and thus has no relationship to the in-service events. She found the conditions more likely than not were secondary to the effects of aging and physical labor employment as a truck driver. Further, the May 2020 VA examiner opined that the Veteran’s DDD of the lumbar spine is not at least as likely as not related to an in-service injury, event, or disease, including his in-service back injury. The rationale was that there is no objective evidence of any DDD of the lumbar spine during service. The examiner noted that the Veteran sustained a muscle strain from lifting a heavy object in July 1973, which resolved with no further treatment during service and the muscle strain has no etiological or pathophysiological relationship to the development of his lumbar spine condition. Additionally, the degenerative changes were first noted in 2006, approximately 33 years later. The examiner concluded that it is more likely than not that the Veteran’s lumbar spine condition is related to the injuries sustained after service as well as the normal effects of aging with wear and tear on the lumbar spine during the 33 years since service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no opinion of record to the contrary. Finally, to the extent the Veteran contends he has suffered from chronic back problems during service and ever since service, the Board does not find such assertion to be persuasive. Service treatment records do not show he injured his back in a fall; rather, he was treated once for a muscle strain after lifting. Further, while he denied suffering any post-service injuries during his Board hearing, the record shows several post-service falls and motor vehicle accidents after which he complained of back pain. As such, the credibility of the assertions is suspect. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (“The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements”); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). In sum, there is no competent evidence of record establishing that the Veteran’s DDD of the lumbar spine began during or is otherwise related to his service. Accordingly, the preponderance of the competent and probative evidence is against the Veteran’s claim, and service connection for a lumbar spine disability, to include DDD is denied. 2. Entitlement to service connection for cervical spine condition The Veteran contends that his cervical spine condition is related to a back injury during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of DDD of the cervical spine and spinal fusion of the C5-C6, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of DDD of the cervical spine began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records are negative for treatment or findings of a cervical spine disability. Post service treatment records show the Veteran was not diagnosed with cervical spine disability until 1999, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of pain and discomfort intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of DDD of the cervical spine with spinal fusion. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Further, the April 2020 VA examiner opined that the Veteran’s cervical spine condition is not at least as likely as not related to an in-service injury, event, or disease, including his in-service back injury. The rationale was that the STRs were “silent for cervical spine injury, chronic progressive complaints and diagnosis of neck during service.” The examiner discussed the post-service spine injuries in 2001 and 2002. The examiner noted there is a data gap in complaints, diagnosis and treatment from September 1974 to 2001 and opined that the Veteran's current symptoms are a new and separate condition not related to service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. There is no opinion of record to the contrary. Finally, to the extent the Veteran contends he has suffered from neck problems during service and ever since service, the Board does not find such assertion to be persuasive. Service treatment records do not show he was involved in a fall or that he complained of a neck disability. Further, while he denied suffering any post-service injuries during his Board hearing, the record shows several post-service falls and motor vehicle accidents after which he complained of neck pain. As such, the credibility of the assertions is suspect. See Caluza, 7 Vet. App. at 511; see also Madden, 125 F.3d at 1481. In sum, there is no probative evidence of record establishing that the Veteran’s current cervical spine condition was incurred in or otherwise related to his service. Accordingly, the preponderance of the competent and probative evidence is against the Veteran’s claim, and service connection for cervical spine condition is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, 274 F.3d at 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, Associate 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.